Allowed

Pulichamakkil James v. State of Kerala

Kerala HC5 Dec 2022CRL.A/2467/2008

Case brief

AI extract

What is this about?

In an appeal against conviction for possession of illicit arrack, the High Court held that prosecution witnesses identified the accused for the first time in court without a test identification parade. Relying on settled law, the Court deemed this identification evidence valueless, resulting in acquittal based on benefit of doubt.

What did the court decide?

The appellant/accused is acquitted of the alleged offences and set at liberty.

Pulichamakkil James Vs State of Kerala — Bail and Remand | Kerala HC (2022)

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Crl.A.No.2467 of 2008

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K. BABU

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MONDAY, THE 5^TH DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944

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CRL.A NO. 2467 OF 2008

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AGAINST THE JUDGMENT DATED 24.9.2008 IN SC 332/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), KOZHIKODE

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APPELLANT/ACCUSED:

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PULICHAMAKKIL JAMES

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S/O.VALANHAPARA KUNHETTAN,, 34 YEARS, VALANHAPARA, PUTHUPPADI AMSOM, DESOM, KOZHIKODE TALUK.

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BY ADVS.

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SRI.R.SUDHISH SMT.M.MANJU

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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Rekha, GOVERNMENT PLEADER

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

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05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE

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FOLLOWING:

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Crl.A.No.2467 of 2008

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K.BABU, J.

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Criminal Appeal No.2467 of 2008

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Dated this the 5^th day of December 2022

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JUDGMENT

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Aggrieved by the judgment dated 24.9.2008,

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passed by the Additional District and Sessions Court, Fast Track (Adhoc-1) Kozhikode in S.C.No.332/2007, the accused has preferred this appeal. The appellant/accused was convicted under Sections 55(a) and 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh.

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The prosecution case is that on 15.08.2002 at 5.30 p.m., the accused was found in possession of 3 litres of illicit arrack at Puthuppadi in violation of the provisions of the Abkari Act.

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After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court,

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Crl.A.No.2467 of 2008

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from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence.

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The prosecution examined PWs 1 to 7 and proved Exts.P1 to P6 and MO 1.

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After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence.

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Crl.A.No.2467 of 2008

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Heard Sri.Sudhish. R, the learned counsel appearing for the appellant/accused, and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent.

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The judgment of conviction and sentence is challenged on the ground that the prosecution failed to establish the identity of the person who was allegedly carrying the contraband substance.

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The prosecution case is that on 15.8.2002, PWs 1 and 2, two Excise preventive officers attached to Excise Range Officer, Thamarassery found a person carrying a plastic can containing illicit arrack at the place of occurrence. According PWs 1 and 2 on seeing the Excise team, the person who was in possession of the can abandoned the same and ran away from the scene. According to PWs 1 and 2, he jumped into the river and swam across, and escaped. PW1 the Detecting Officer had prepared Ext.P1 seizure mahazar. In Ext.P1, PW1 has not narrated any of the identifying features of the person who left the scene. PWs 1 and 2, the two official witnesses have no case that they had any previous acquaintance with

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Crl.A.No.2467 of 2008

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the person who was carrying the contraband substance. Going by their evidence they had only a fleeting glimpse of the man who left the scene. No test identification parade was conducted. PWs 1 and 2 had no opportunity to see the accused after the incident. They identified the accused in the box in 2008 nearly after six years. No other witness supported the prosecution.

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It is well settled that where a witness identifies an accused who is not known to him in the court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court [vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980

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Crl.A.No.2467 of 2008

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(SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR

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1983 (SC) 367] . So on this ground alone the prosecution must fail.

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The resultant conclusion is that the prosecution failed to establish the identity of the person who was allegedly carrying the contraband substance.

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Therefore, the prosecution was unable to establish the link connecting the accused with the contraband. The Court below lost sight of this important aspect of identification. Therefore, the appellant/accused is entitled to the benefit of doubt.

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Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offences alleged. He is set at liberty.

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The appeal is allowed as above.

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Sd/-

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K.BABU JUDGE

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Pulichamakkil James v. State of Kerala

Case brief

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Pulichamakkil James v. State of Kerala

Case brief

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