The High Court set aside the conviction and sentenced the accused for affray and assault. It held that the lack of proper, specific dock identification by the main eyewitness rendered the prosecution case unsustainable, leading to acquittal under the benefit of doubt.
Conviction and sentence set aside. Accused acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 22ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,
1944
CRL.REV.PET NO. 1437 OF 2010
AGAINST THE JUDGMENT IN CRA.NO.4/2008 OF DISTRICT COURT,
LAKSHADWEEP
CC 22/2006 OF JUDICIAL MAGISTRATE OF 1ST CLASS COURT,
ANDROTH
REVISION PETITIONERS/APPELLANTS/ACCUSED:
BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH SRI.S.RAJEEV
RESPONDENT/RESPONDENT/STATE:
CRL.REV.PET NO. 1437 OF 2010
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ANDROTT POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,KOCHI-31.
THE SUB INSPECTOR OF POLICE, ANDROTH ISLAND, ADDL.R2 U.T.OF LAKHSHADWEEP, REPRESENTED BY PROSECUTOR. (ADDL.R2 IS IMPLEADED AS PER ORDER DATED 22.11.2022 IN CRL.M.A.NO.8942 OF 2010)
BY ADVS.
SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP
OTHER PRESENT:
SRI SAJITH KUMAR V -SC
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 1437 OF 2010
O R D E R
This Crl.Rev.Pet. has been directed against the judgment dated 31.03.2010 in Crl.A.No.4 of 2008 on the files of the Court of Sessions Judge, Lakshadweep (for short 'the appellate court') confirming the judgment dated 31.05.2008 in C.C.No.22 of 2006 on the files of the Judicial First Class Magistrate Court, Andrott (for short 'the trial court').
2. The petitioners are the accused Nos.1 to 6. The offences alleged against the petitioners are punishable under Sections 143, 147, 323 r/w 149 of IPC.
3. The prosecution case in short is that on 23.02.2006 at about 08.10 p.m., the petitioners formed an unlawful assembly and in prosecution of their common object, assaulted PW1 with their hands and stones while he was going to offer his prayer at
CRL.REV.PET NO. 1437 OF 2010
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the nearby mosque and thereby committed the offence.
4 . The prosecution examined PWs 1 to 7 and
marked Exts.P1 to P4. MO1 series were identified. After trial, the trial court found the accused guilty for the offence punishable under Sections 143, 147, 323 r/w 149 of IPC. The accused were sentenced to undergo simple imprisonment for 1 month for the offence punishable u/s.143 of IPC and simple imprisonment for 6 months for the offence punishable u/s.147 of IPC. The 1 st accused was also sentenced to undergo simple imprisonment for 2 months for the offence punishable u/s.323 of IPC and the accused Nos.2 to 6 were sentenced to undergo simple imprisonment for 2 months for the offence punishable under Section 323 r/w Section 149 of IPC.
5 . In appeal, the appellate court confirmed the conviction and sentence passed by the trial court. Challenging the conviction and sentence passed by
CRL.REV.PET NO. 1437 OF 2010
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both the courts below, the accused preferred this revision petition.
6 . I have heard Sri.S.Rajeev, the learned
counsel for the revision petitioners and Sri.Sajith Kumar V, the learned Standing Counsel representing the Lakshadweep Administration.
7 . PW1 is the victim. PWs 2 and 3 are the
occurrence witnesses. PW1 gave FIS. It was marked as Ext.P1. In Ext.P1, the names of all the accused were stated. It is also stated that the accused were known to PW1. However, in evidence, PW1 did not state the names of accused Nos.2 to 6. PW1 did not identify the accused at the dock also. PWs 2 and 3 though identified some of the accused, the identification was not a specific one.
8 . The learned counsel for the revision
petitioners Sri.S.Rajeev, vehemently argued that since there is no dock identification of the accused
CRL.REV.PET NO. 1437 OF 2010
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by the victim, the conviction against them is not sustainable. In support of his submission, the learned counsel relied on three decisions of this Court:- Vayalali Girishan and Others v. State of Kerala (2016 KHC 204), Manu G. Rajan and Another v. State of Kerala (2021 (5) KHC 767) and Thadiyantevida Nazeer @ Ummer Haji & Others v. State of Kerala & Others (2022 KHC 72).
9 . On the other hand, the learned Standing Counsel for Lakshadweep Administration Sri.Sajith Kumar V. argued that even in the absence of specific dock identification by the victim, the close scrutiny of the evidence of PW1 coupled with the evidence of PWs 2 and 3 would prove the identity of the accused. The learned Standing Counsel further submitted that the dictum laid down in the above three decisions cannot be applied to the facts of this case.
10. No doubt, the identification of the accused
CRL.REV.PET NO. 1437 OF 2010
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at the court is a substantive piece of evidence. It has come out in evidence that the accused were known to the victim prior to the incident. However, it is pertinent to note that even though in Ext.P1 FIS, the names of all the accused were stated, PW1 in the chief examination has only mentioned about the name of the 1 st accused. The names of the accused Nos.2 to 6 were not mentioned at all.
11. In Vayalali Girishan (supra), the Division
Bench of this Court has held that while recording deposition, the trial judge has to specifically record that the accused standing in the dock is identified by the witness and if there is failure thereof, the accused is entitled to the benefit of doubt. It was further held that the identification of the accused in the court cannot be done in an omnibus and perfunctory manner. In Manu G. Rajan (supra), the learned Single Judge of this Court has held that when
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there is failure to properly identify the accused in the dock, it is fatal to the case of the prosecution. It was further held that merely because all the accused persons were directly known by the witness, that by itself does not take away the requirement of proper identification in the dock. In Thadiyantevida Nazeer (supra), the Division Bench of this Court observed that the court should be more vigilant in prompting the witness to make a proper dock identification. It is also observed that it is more incumbent on the prosecution to ensure that a credible identification is made, which has the duty of establishing the guilt of the accused beyond any reasonable doubt.
12. Neither the court nor the prosecution was successful in getting the accused identified by PW1. True, PWs 2 and 3 identified some of the accused. But their identification was also not specific as stated
CRL.REV.PET NO. 1437 OF 2010
in the above three decisions. The identification was
an omnibus one. In the absence of proper identification of the accused, the conviction and sentence passed by the courts below cannot be sustained. Accordingly, it is set aside. The accused are acquitted.
Crl.Rev.Pet. is allowed as above.
Sd/-
DR.KAUSER EDAPPAGATH , JUDGE
AS
CRL.REV.PET NO. 1437 OF 2010
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APPENDIX OF CRL.REV.PET 1437/2010
PETITIONERS' ANNEXURES:
ANNEXURE- AI A COPY OF THE PASSPORT OF THE PETITIONER
ANNEXURE-AII A COPY OF THE CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA TO THE PETITIONER
3 issues framed by the court
Whether conviction is sustainable without proper dock identification of all accused by the victim.
Whether lack of specific identity by the primary witness warrants acquittal despite prior knowledge of accused.
Whether prosecution failure to establish credible dock identification entitles accused to benefit of doubt.
Colour shows how this judgement treated each authority
Vayalali Girishan and Others v. State of KeralaExplained¶53
Vayalali Girishan and Others v. State of Kerala (2016 KHC 204)
Manu G. Rajan and Another v. State of KeralaExplained¶53
Manu G. Rajan and Another v. State of Kerala (2021 (5) KHC 767)
Thadiyantevida Nazeer @ Ummer Haji & Others v. State of KeralaExplained¶53
Thadiyantevida Nazeer @ Ummer Haji & Others v. State of Kerala & Others (2022 KHC 72)
2 provisions across 1 enactments
K.C.MOHAMMED KHALEEL
K.C.PEER MOHAMMED
L.NISAR
S.V.MOHAMMED ASHIK
K.UBAID
MUSHEER RIYAS
DR. KAUSER EDAPPAGATH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
