IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1472 of 2008()
1. S.MARIAPPAN, C.P.NO.4569,
... Petitioner
Vs
1. THE OFFICER-IN-CHARGE,
... Respondent
For Petitioner :SRI.LIJU.M.P(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :16/11/2010
O R D E R
K.HEMA, J.
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Crl.Appeal No.1472 of 2008
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Dated 16th November, 2010.
J U D G M E N T
This appeal arises from conviction and sentence
passed against the appellant under Sections 457 and 397 of the
Indian Penal Code to undergo seven years rigorous imprisonment
and to pay a fine of Rs.10,000/- under Section 397 of the Indian
Penal Code and in default to undergo simple imprisonment for two
years. He was also sentenced to undergo 10 years imprisonment
and to pay a fine of Rs.25,000/- under Section 457 and in default
to undergo simple imprisonment for three years more. The fine, if
realised, was ordered to be paid as compensation to PW1.
2. According to prosecution, accused, 9 in number,
with the intention to commit robbery, committed house breaking
by night into the house of PW1 on 12.9.1990 at about 1 O’ clock
by breaking open the front door of the house by hitting with a
stone. PW1 was attacked by beating with an iron rod and also by
stabbing with knife. The accused removed the gold ornaments
Crl.A. NO. 1472/08 2
from PW2 and robbed various other gold ornaments kept in the
house in the show case and also inside a table. Two watches and
a clock were also stolen, and the articles were worth a total
amount of Rs.66,500/-
3. The appellant is charge sheeted as first accused by
the police. The case against other accused were split up. No co-
accused was tried along with appellant. The prosecution
examined PW1 to PW7, marked Exts.P1 to P7 series and MO1
series and MO2. The accused did not adduce any evidence, but
pleaded innocence.
4. The trial court, on an analysis of the evidence on
record found that PW1 and PW2 identified accused and from their
evidence, it is revealed that appellant being a member of the
dacoits, having committed house breaking into the house of PW1,
and having committed dacoity, together with co-accused forming
a group of more than 5, and he having used deadly weapon and
caused injuries to PW1, he is guilty of offence of dacoity and also
having committed house breaking by night.
5. The appellant was undefended. Sri.M.P.Liju was
appointed as State Brief. Learned defence counsel argued that as
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per the letter sent from the jail, appellant was in custody from
1990 onwards and he was implicated falsely and without any
basis, in this case. It is also argued that as per the remand report,
it will appear that appellant was in custody of the Tamil Nadu
police and he has not committed the alleged offence. He is
implicated on suspicion and without any materials and no
recovery was effected through appellant. The appellant was
produced in court from the jail for the purpose of trial and he was
identified by PW1 and PW2 in court after 16 years of the incident
and such identification cannot be acted upon, in the absence of
their identification at least during the investigation before the
police or in test identification parade, it cannot be accepted.
6. Learned Public Prosecutor submitted that PW1 and
PW2 correctly identified appellant in court and there is no reason
to reject their evidence. It is also submitted that appellant’s
involvement was revealed, when accused 5 and 7 were arrested
by the Tamil Nadu police and they made a confession to the Tamil
Nadu police. A1 was implicated in the light of the confession
statement made by A5 and A7 to the Tamil Nadu police.
7. On hearing both sides and on going through the
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evidence in detail, I find that there is nothing on record to show
under what circumstances, appellant was implicated as first
accused in this case. Though accused nos.5 and 7 were arrested
in this case, the Investigating Officer has no case that they made
any confession to him personally revealing the involvement of
first accused in the crime. According to him, 5th and 7th accused
made confession to the Tamil Nadu police and that was what he
“understood”. It is not clear why and on what basis, PW5, the
Investigating Officer arrayed appellant as first accused, in the
absence of any material before him, at least as a confession
statement made by the 5th and 7th accused to him personally. He
has no case he had taken a copy of the alleged confession made
to Tamil Nadu police to satisfy himself that appellant was
implicated.
8. In this context, it is also relevant to note that PW5
admitted that first accused was not even arrested. The reason for
non-arrest for non-arrest is not stated. Thus, appellant was not
even questioned by Investigating Officer to confirm his
involvement in the offence. No attempt was also made to recover
any stolen article or other material objects in this case through
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first accused. To confirm the involvement of first accused, there
must be some evidence before the court. Having allegedly
robbed money, ornaments and various other articles, it is
probable that appellant may be in possession of any of the
material objects or he may be able to give some information
regarding such articles which were robbed. But evidence is silent
about any investigation being made to connect appellant with the
crime.
9. As per the evidence of PW5 himself, appellant was
not shown to any of the witness for the purpose of identification.
So, under what circumstances Investigating Officers confirmed
that appellant was involved in this case is not known. Though
PW1 and PW2 would identify appellant in court, such identification
was made after 16 years of incident, for the first time in court
only. As per the evidence of PW5, appellant was not caused to be
identified during investigation. In this context, learned Public
Prosecutor submitted that PW1 and PW2 had sufficient time to
identify the appellant at the scene since he spent a lot of time in
the house.
10. But a perusal of evidence of PW1 and PW2 shows
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that they had shown over-anxiety to implicate appellant in this
case. Though prosecution has no case that the appellant had
beaten PW1 with an iron rod, PW1 and PW2 deposed in court that
the appellant beat PW1 with iron rod. This case is totally
inconsistent with the prosecution case. PW1 and PW2 developed
a new case after 16 years of the incident to implicate the
appellant with the crime. Neither in the final report submitted by
the police or in the charge framed by the court, an allegation is
made that appellant had beaten PW1 with iron rod.
11. Since PW1 and PW2 put forward a new case while
examined in court after 16 years of the incident, it is essential
that their evidence is assessed and evaluated with greater care
and caution. PW1 and PW2 themselves have no case that they
identified appellant before the police. The Investigating Officers
also have no case that appellant was caused to be identified by
PW1 and PW2. In fact, PW5 stated that appellant was not even
arrested. As per the evidence, no recovery was also effected from
appellant to connect him with the crime. PW2 deposed in court
that it was appellant who attacked PW1 to the maximum when
compared to other accused.
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12. But, according to the prosecution, it was second
accused, who had beaten with the iron rod and the other person
who had inflicted injury on PW1 is the 4th accused and not the
appellant who is first accused. There is no case for prosecution
that appellant attacked PW1 by using any weapon. Even in the
charge, framed by court, there is no such allegation. The trial
court failed to note all these facts but the appellant was convicted
only on the basis of the evidence of PW1 and PW2 from which the
trial court drew conclusion that appellant was present at the
scene etc. I do not find it safe to act upon the evidence of PW1
and PW2 and hence appellant cannot be convicted based on the
sole testimony of PW1 and PW2 for the alleged offences. It would
appear that only because the appellant was present in court, PW1
and PW2 have identified him and shown over anxiety to implicate
him with the crime.
13. According to PW1 and PW2, there was a scar on
the appellant’s leg and it was the identification mark which helped
them to identify appellant in court. But, neither PW1 nor PW2
have such case before the police. Taking all these facts into
consideration, I find that the conviction and sentence passed
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against the appellant on the sole basis of the evidence of PW1
and PW2 cannot be sustained. Prosecution has failed to prove its
case against appellant.
14. In the result, the following order is passed :
(i) The conviction and sentence passed against the
appellant are set aside.
(ii) The appellant is found not guilty of offences under
Section 457 and 397 of the Indian Penal Code and he
is acquitted of the said offences.
(iii) The appellant is set at liberty forthwith and he shall be
released, if his detention is not required in connection
with any other case.
(iv) The release order shall be issued forthwith.
This appeal is allowed.
K.HEMA, JUDGE.
tgs