IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1663 of 2003()
1. RAVI, S/O.PERACHAN, THEKKEPALLIYIL HOUSE
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :14/07/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.1663 OF 2003
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Dated this the 14th day of July, 2009
JUDGMENT
This is an appeal preferred against the conviction and
sentence passed against the appellant, who is the first
accused in S.C.No.9/2000 of the Additional Sessions Judge,
Fast Track Court-I, Manjeri. The first accused has been
convicted under Section 55(a) of the Abkari Act and sentenced
to undergo R.I for three years and to pay a fine of Rs. One
lakh and in default, to undergo further imprisonment for one
year.
2. It is the case of the prosecution that on 23.10.1998 at
about 6.15 p.m the accused were found dealing with illicit
arrack and wash for the purpose of distillation in a cashew
plantation which belonged to one Kuttikrishnan. According to
the prosecution, the first accused was found in possession of
a Can from a distance, who on seeing the police party had
thrown away the same and escaped. The police party arrived
at the scene of occurrence, found the second accused stirring
the wash and apprehended and arrested him. Though PW2
ran behind the first accused, he did not catch hold of him.
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3. The learned counsel for the appellant very strongly
contends before me that here is a case where there are really
no materials to identify the first accused in this case. He had
taken me through the evidence of PWs 1 and 2 as well as
Ext.P1. In Ext.P1, the police had indicated the name of the
first accused only on the basis of the information supplied by
the second accused. There is no statement in Ext.P1 to the
effect that the police officers would be able to identify him on
sight. It is a well known and settled position of law that a
statement given by the co-accused cannot be taken
advantage by the prosecution against the accused in the case
especially for the purpose of identification. So, what remains
is the evidence tendered by PWs 1 and 2.
4. PW1 in categorical terms asserts that he had no
previous acquaintance with the first accused. He had also
stated that he came to know about the first accused’s name
etc., only on interrogation of the second accused. In the cross
examination, he had admitted that he has no previous
acquaintance with the first accused. He would also depose
that the first accused has not been apprehended in person at
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that time.
5. Now, I will refer to the evidence of PW2. According to
PWs 1 and 2, it was PW2 who attempted to chase the first
accused. He admits that he was not able to catch hold of him
but in the chief examination, he would say that he was running
after the first accused almost at a very short distance and at
that time, he was able to see the face of the accused. It has to be
remembered that the very same witness had stated that the
property there lying is in different tiers and that PW2 is not
acquainted with the area at all. He had also stated that
there were about four persons at that point of time and all of
them had escaped. He had also admitted that he could not
catch hold of the accused because he had fallen down. He had
also stated before the investigating officer that he was not able
to catch hold of the first accused. He admits that he has no
previous acquaintance with the first accused. It is also his
version that the name of first accused was obtained from the
second accused. So, the identification of the first accused so
far as it relates to PWs 1 and 2 are concerned is only from
the accused’s dock and not earlier.
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6. I am afraid because, it has been held in innumerable
number of decisions that when there is dispute regarding
identity and a person is identified by a witness from the
court, it is not a proper identification and such identification
without conducting a proper identification parade is not good
in law and so, it has to be held that the benefit of doubt has to
go to the accused in such case. As stated by me earlier, PWs
1 and 2 did not have any previous acquaintance with first
accused. The name of first accused is introduced in the crime
only on account of the supply by A2 whose statement cannot
be relied upon by the prosecution against A1. No
identification parade is conducted or anybody has pointed out
the first accused and that he had been questioned to that
effect. So, all these things make the identity of A1
suspicious to connect him with the crime and therefore, the
benefit of doubt has to go to him. There is no point in
discussing other materials for the reason that the absence of
identity itself decides the fate of the case. So on that basis,
the first accused is entitled to acquittal.
7. In the result, the criminal appeal is allowed.
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The conviction and sentence passed by the court
below against the first accused under 55(a) of the Abkari Act
is set aside. He is acquitted and set at liberty forthwith. If
he has deposited any amount in the court towards suspension
of sentence, let it be reimbursed to him on appropriate
application. It is made clear that I have not expressed
anything on merits regarding the case of the second accused in
this case.
M.N. KRISHNAN, JUDGE
cl
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