IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1108 of 2004(C)
1. PULIKKAL BEERANKUTTY @ CHETH FAIZAL @
... Petitioner
2. PANGADAN ABDUL RAZAK, S/O.KUNHIKAMMU,
3. KRISHNADAS @ UNNI NAIR,
4. EDAYADAN SAIDALAVI, S/O. MUHAMMED,
5. CHAKKACHANPARAMBATH FAIZAL,
6. AREEKKAN FAZALUL RAHMAN,
Vs
1. THE STATE OF KERALA,
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :11/09/2007
O R D E R
K. Thankappan, J.
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Crl. A. No. 1108 of 2004
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Dated this the 11th day of September, 2007
JUDGMENT
Accused in S.C. No. 477/2001 on the file of the Court of the Addl.
Sessions Judge Fast Track Court No.I (Adhoc), Manjeri are the appellants.
They faced trial for offence punishable under section 395 IPC. The
prosecution allegation against the appellants is that at about 9.15 p.m. all the
accused in furtherance of their common intention to commit decoity chased
the de-facto complainant in a jeep No.KL.10J.6147 and blocked scooter
bearing No.KLG 7327 driven by the defacto complainant and caught hold
the defacto complainant and manhandled him and accused 2 and 3 took
away MO1 bag containing Rs.50,000/- kept in the scooter and all the
accused assisted them in perpetrating the crime and therefore they
committed the offence. Before committal proceedings, the 2nd accused in the
original crime was declared absence and his case was split up and the
present appellants were faced trial as accused Nos.1 to 6 in the above case.
To prove the charge against the appellant, PWs.1 to 12 were examined and
Exts.P1 to P16 and Mos. I and II were marked. After closing the
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evidence on the prosecution side, the appellants were questioned under
section 313 of Cr.P.C. They denied the allegation. On the side of the
defence, DWs.1 and 2 were examined. After considering the evidence, the
trial court found the appellants guilty of the offence punishable under
section 395 IPC and they were convicted thereunder and sentenced to
undergo rigorous imprisonment for seven years each and to pay fine of
Rs.15,000/- each and in default to undergo simple imprisonment for three
years. The trial court also directed that if the fine amount was realized that
should be paid to the victim. The conviction and sentence awarded against
the appellant are assailed in this appeal.
2. Heard.
3. Learned counsel for the appellant has raised the following
contentions to challenge the impugned judgment:- Firstly, it is contended
that the trial court had committed serious error in believing the evidence of
the prosecution to find the appellants guilty under section 395 IPC.
Secondly, it is contended that there was no proper identification of the
accused. Thirdly, it is contended that the trial court has committed serious
error in finding the appellant guilty under section 395 IPC on the basis of
the confession statement alleged to have been given by the 1st accused to
PW11 Sub Inspector of Police.
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4. The trial court had considered the evidence of PW1 and came to
the conclusion that PW1 had properly identified the 1st accused. In this
context, it is relevant to note that in Ext.P1 he stated that while he was
riding his scooter, his scooter was blocked by a jeep. He stopped the scooter
due to the blockage and at that moment 4 travellers in the said jeep
suddenly jumped out and two of them caught hold of his neck and he was
manhandled for few minutes. He fell down in the tarred road . The said two
persons continued manhandling him by kicking his chest and dragging him
through the tarred road. The other two robbers snatched the bag containing
money. Due to the unexpected manhandling, he could not come his voice
for a short while. Thereafter he lost his presence of mind and he remained
there for few minutes. When he regained his presence of mind, he made
loud cry and on hearing his cry, local people reached there. In chief
examination he stated that he identified the 1st accused. When he was
cross-examined, he stated that he had identified the 1st accused at the police
station. When he was further cross-examined he stated that ”
driver 5 " .
This witness also stated that "A1 police
" In this context, the evidence of
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PW10 would show that he had previous occasion to see the 1st accused
visiting the house of one Saidalavi and the said Saidalavi has got criminal
antecedents concerning theft of vehicles and he knew that Saidalavi was
involved in similar cases. He also stated that once PW10 had noticed the
arrival of the 1st accused to the house of the said Saidalavi in an omni van.
He further stated that on the relevant night he had seen the 1st accused at
Parambil Peedika, just one hour prior to the incident and on suspicion he
enquired with one Musthafa and came to know his name as Cheth Faisal.
The evidence of PW10 is only hear say evidence. Hence, the evidence of
PW10 cannot be considered as a corroborative piece of evidence. Evidence
of PWs.1 and 2 would not show the identity of the persons as the accused
who jumped out of the jeep, caught hold of him and robbed his bag as
alleged by the prosecution. In this context the learned counsel for the
appellant brought to the notice of a decision of the Supreme Court reported
in Budhsen and another V. State of U.P. (AIR 1970 SC 1321). In the above
decision the Apex Court held that as a general rule, the substantive
evidence of a witness was a statement made in court. The evidence of mere
identification of the accused persons at the trial for the first time was from
its very nature inherently of a weak character. The Apex Court also held
that it was accordingly considered a safe rule of prudence to generally look
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for corroboration of the sworn testimony of witnesses in court as to the
identify of the accused who are strangers to them, in the form of earlier
identification proceeding. The learned counsel for the appellant submits
that the prosecution had not conducted any identification parade to identity
the accused as the persons who committed the alleged offence. In this
context, it is also to be noted that PW1 was questioned by the police more
than six times and all these times PW1 could not have given any evidence
regarding the identity of the accused who involved in the commission of the
offence. The trial court found that the first information statement do not
contained any clue regarding the identity of the accused. PW11
investigating officer has no case before the court that PW1 had identified
the accused. If that be so, the trial court had committed serious error in
finding that PW1 identified the accused.
5. The next question to be considered is with regard to the
confession statement given by the 1st accused to PW11. Admittedly, there is
no recovery under section 27 of the Evidence Act. If that be so, the trial
court is not correct in placing reliance on PW11 regarding the alleged
confession statement given by the 1st accused. With regard to the
acceptance of confession statement made by the 1st accused, as per
sections 25 and 26 of the Evidence Act confession made by an accused to a
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police officer is not admissible in evidence. If that be so, the trial court has
committed serious error in placing reliance on the confession statement
alleged to have been given by the 1st accused. There was no evidence to
show that Mos.1 and 2 were recovered on the basis of the alleged
confession statement given by the accused to PW11. If that be so, the
confession statement alleged to have been given by the 1st accused cannot
be used against the accused. In this context, the learned counsel for the
appellant brought to the notice of this court a decision reported in
Kalpanath Rai V. State (through CBI) (AIR 1998 SC 201). In the above
decision the Apex Court held that under sections 25 and 26 of the Evidence
Act no confession made by an accused to a police officer, or to any person
while he was in police custody could be admitted in evidence and under
section 162 of the Cr.P.C. no statement made by any person during
investigation to a police office could be used in a trial except for the
purpose of contradiction and for the purpose of section 27 of the Evidence
Act.
6. Another point to be considered is with regard to the production of
Mos.1 and 2. There is no evidence given either by PW11 or any other
witness regarding the recovery or seizure of MOs.1 and 2. Though in re-
examination PW1 identified MO1, description of MO1 bag was not given .
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Even if MOs.1 and 2 were recovered and produced on any confession
statement recorded by investigating officer, it should be proved properly by
adducing evidence. In this context, the trial court committed serious error in
accepting the evidence of PW1. PWs.3, 4 and 5 had given evidence before
the court that they saw PW11 Sub Inspecator of Police seizing certain
amount from accused Nos.3, 4 and 5. The seizure is also not properly
proved before court and the material objects were not properly identified
by PW1 or PW11 and the recoveries of MOs.1 and 2 are not under section
27 of the Evidence Act.
7. In the above circumstances, this Court is of the view that the
finding of the trial court is not based on any acceptable evidence. Hence,
the convictions and sentence ordered against the appellants are hereby set
aside and the appellants are acquitted. Fine amount, if any, deposited by
the appellants, it shall be refunded to them as per law. Bail bond executed
by the appellants shall stand cancelled.
The appeal is allowed as above.
K. Thankappan,
Judge.
mn
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K. Thankappan,J.
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Crl.A. No. 266 of 2006
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Judgment
11-7-2007