IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 Crl.Rev.Pet.No. 659 of 2002() ----------------------------- CRA.113/1995 of SESSIONS COURT, MANJERI SC.64/1992 of ASSISTANT SESSIONS COURT, MANJERI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- ILLATHODY BEERAN, S/O.MOHAMMED, VILAYIL, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. THE DEPUTY SUPERINTENDENT OF POLICE, C.B.C.I.D., MALAPPURAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.659 OF 2002 --------------------------------------------- Dated 7th July, 2010 O R D E R Petitioner, the accused in S.C.64/1992 on the file of Assistant Sessions court, Manjeri was convicted and sentenced to rigorous imprisonment for seven years for the offence under Section 307 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions court, Manjeri in Crl.A.113/1995. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. Revision is filed challenging the conviction and sentence. 2. Prosecution case is that on 7/7/1989 at about 9.30 p.m PW1 after CRRP 659/02 2 closing his book stall by name Nellikkuth Book Stall situated at Manjeri, was returning to the house. After alighting from the bus. H, he was having a lighted candle with him. While he was walking along Nellikkuth-Mukkam road and reached near the house of Alavunni and Asari Nanu, a jeep came from the opposite side and passed PW1 and stopped. Petitioner got down from front seat and called PW1 “usthad”. PW1 stopped there and looked back. At that time petitioner reached near him. He beat PW1 on his face with his hands. When PW1 fell down, petitioner took out a knife and inflicted injuries on his chest and head with the intention to cause his death. Petitioner thereby committed the offence under Section 307 of Indian Penal Code. Pws.2 and 3 and others took PW1 to hospital from where PW11 the doctor CRRP 659/02 3 prepared Ext.P9 wound certificate and admitted PW1 in the hospital as inpatient. Ext.P1 FI statement was recorded on the next day based on which Ext.P7 FIR was prepared and crime was registered. Petitioner was arrested on 23/7/1989. Later a test identification parade was conducted wherein Pws.1 to 3 identified the petitioner, evidenced by Ext.P8 report. PW1 was discharged from the hospital on 4/8/1989 under Ext.P10 discharge certificate. After completing the investigation, charge was laid against the petitioner. When charge for the offence under Section 307 of Indian Penal Code was framed and read over, petitioner pleaded not guilty. Prosecution examined twelve witnesses and marked ten exhibits and identified Mos.1 and 2 the dresses worn by PW1 at the time of the incident. On the side of the CRRP 659/02 4 accused, Exts.D1 to D10 portions of statements of PW2, recorded under Section 161 of Code of Criminal Procedure, were confronted and marked and later proved through PW12 the investigating officer. Though petitioner was called upon to enter on his defence and adduce evidence, he did not adduce any evidence. Learned Assistant Sessions Judge on the evidence found the petitioner guilty. Petitioner challenged the findings before the learned Sessions Judge. Learned Sessions Judge found that PW3, son of PW1 could not have been an eye witness and could have reached there only subsequently and therefore, his evidence cannot be relied on. But relying on the evidence of Pws.1 and 2, it was found that the injuries inflicted on PW1 as recorded in Ext.P9 wound certificate were inflicted by the petitioner with a knife and CRRP 659/02 5 his intention was to cause death of PW1. Learned Sessions Judge therefore, confirmed the conviction and sentence. 3. Revision petitioner would contend that courts below did not properly appreciate the evidence and from the evidence of Pws.2 and 3, it should have been found that they did not witness the incident and evidence of PW1 should not have been accepted as the identification of the petitioner made by PW1 should not have been accepted. It is contended that PW1 had sufficient opportunity to see the accused prior to the holding of test identification parade and in such circumstances, based on the solitary evidence of PW1 regarding identification, petitioner cannot be convicted. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were CRRP 659/02 6 heard. 5. Argument of the learned counsel appearing for the petitioner is that in Ext.P1 FI statement, PW1 did not disclose any features by which PW1 identified the person who inflicted the injury on him and in such circumstances, subsequent identification from the court should not have been accepted. It was argued that PW1 was discharged from the hospital on 4/8/1989 and petitioner was arrested on 23/7/1989, but test identification parade was conducted only on 8/2/1990 and the witnesses who identified the petitioner in test identification parade had opportunity to see the petitioner and in such circumstances, no value can be attached to the identification made in the test identification parade. Learned counsel further argued that if PW2 was CRRP 659/02 7 present at the scene of occurrence and had identified petitioner as claimed by him, he would have disclosed the identity of petitioner to PW1, especially when PW1 deposed that while he was being taken to the hospital in the vehicle Pws.2 and 3 were discussing about the incident and identity of the petitioner as the culprit was not disclosed either in Ext.P1 FI statement or even when statement of PW2 was recorded under Section 161 of Code of Criminal Procedure and so it is clear that PW2 had not witnessed the incident or identified the petitioner. Learned counsel argued that in such circumstances, identification made by PW1 from the box should not have been accepted. Reliance was placed on the decisions in Kannan and others v. State of Kerala (AIR 1979 SC 1127) and Rajesh v. State of Maharastra (2000 (2) KLT CRRP 659/02 8 SN Case No.93 Page No.87) and argued that as test identification parade was conducted after more than six months it valueless and when PW1 did not disclose the features of the culprit in Ext.P1 which would enable him to subsequently identify the culprit, identification made by PW1 later should not have been accepted and if that be so, there is absolutely no evidence to connect the petitioner with the offence. Learned counsel also pointed out that as per the evidence of PW1 and his version in Ext.P1 FI statement, it was not one person who committed the offence, as the person who inflicted the injury came there in a jeep driven by another person and there were others also in the vehicle and investigating officer could not identify even the vehicle or the driver of the vehicle or the persons who were CRRP 659/02 9 allegedly there in the jeep at that time. It is also pointed out that if petitioner had inflicted injuries on PW1, there should necessarily be blood stains on the dress worn by him at that time and none was recoded and even the weapon used was not recovered and in such circumstances, based on the unsatisfactory identification made by PW1 it is not possible to convict the petitioner, especially when evidence of PW1 show that there are several persons who were on inimical terms with PW1. It is therefore, argued that petitioner is at least entitled to the benefit of reasonable doubt. 6. Learned Public Prosecutor submitted that in Ext.P1 FI statement itself, PW1 stated that there was sufficient light to identity the culprit and petitioner had identified that CRRP 659/02 10 person and these aspects were not challenged at the time of their examination. It was also pointed out that PW1 sustained grievous hurt and considering the nature of the injuries, PW1 cannot be expected to disclose the entire facts in Ext.P1 and therefore non mentioning of the features of the culprit in Ext.P1 by itself is not fatal. Learned Public Prosecutor also pointed out that PW1 was in the hospital and was being treated as an inpatient and even after discharge PW1 could not have partipated in the test identification parade immediately and therefore, there was some delay in conducting the test identification parade and when the investigation officer was examined, he was not questioned with regard to the delay of conducting the test identification parade and there was not even a suggestion that petitioner CRRP 659/02 11 was shown to PWs.1 to 3 or others, so as to enable them to identify the petitioner as the person who inflicted the injuries on that fateful night. Relying on the decision of the Apex Court in Mahabir v. The State of Delhi (JT 2008 (5) SC 308), learned Public Prosecutor argued that it is not for the prosecution to rule out every possible defence that would be raised and when the investigating officer was not cross examined with regard to the possibility of the petitioner being shown to PW1, petitioner is not entitled to contend that test identification parade was not proper or that PW1 did not identify the petitioner, as he did not identify him on that fateful night. Learned Public Prosecutor also pointed out that trial court and appellate court considered the evidence in the proper perspective and accepted CRRP 659/02 12 the evidence of Pws.1 and 2 and therefore, there is no reason to interfere with the conviction. 7. Fact that PW1 sustained injuries recorded in Ext.P9, on the night of 7/7/1989 at about 9.30 p.m was not in dispute. Evidence of PW11 Assistant Surgeon, District Hospital, Manjeri with Ext.P9 establish that PW1 was taken to the hospital at about 10.05 p.m on 7/7/1989 and PW11 found the following injuries. 1) A transverse incised wound 3 cm x 1 cm on right side of chest 3 cm above nipple directed downwards and medially about 6 cm deep and posterior to pectoral muscle. 2) Vertical incised wound on left side of face on the malar eminence 5 cm x 1 cm bone deep. 3) vertical curved incised wound 3 cm x ½ cm x ½ cm on left side of CRRP 659/02 13 face lateral to injury No.2 4) A transverse incised wound 4 cm x 1 cm into bone deep on right side of forehead 3 cm above and lateral to eye brow. 5) Vertical incised wound 2 cm x 1 cm into bone deep on left side of forehead. 6) Vertical incised wound 5 cm x 1 cm x boned eep on the frontal region near the midline on the left side. 7) A transverse incised wound 3 x 1 x 1 cm on inner aspect of upper part of right upper arm. 8) A transverse incised wound 3 x 1 x 1 cm on dermis of lower part of left fore arm. 9) Vertical incised wound 3 x 1 x 1 cm and on dermis left hand between 1st and 2nd metacarpals. Ext.P9 wound certificate show that alleged cause of injury disclosed to the doctor was “stabbed by a person at about 9.30 p.m while CRRP 659/02 14 PW1 was returning to his house from Manjeri”. Evidence of PW11 and Ext.P9 and the nature of injuries conclusively establish that intention of the person who inflicted the injuries was to cause the death of PW1, as is clear from the force with which the injuries were inflicted as well as the part of body, where the injuries were inflicted. In such circumstances, findings of the courts below, based on the evidence of PW11 and Ext.P9 wound certificate, finding that the offence committed is under Section 307 of Indian Penal Code cannot be challenged. In fact it was not challenged by the revision petitioner at the time of arguments. 8. The only contention raised by revision petitioner is that petitioner has nothing to do with the incident and his identity was not established. Learned Assistant CRRP 659/02 15 Sessions Judge relied on the evidence of Pws.1 to 3 to hold that it was the petitioner who inflicted the injuries. Learned Sessions Judge on re-appreciation of evidence, found that evidence of PW3, son of PW1 that he was present at the scene of occurrence and identified the petitioner cannot be believed. On going through the evidence, I find that learned Sessions Judge rightly appreciated the evidence of PW3, the son of PW1. If PW3 had accompanied PW1 on that night as claimed by him and PW1 from the box, in Ext.P1 FI statement PW1 would have definitely stated that he was returning by bus after closing his book stall, along with PW3 and at that time injuries were inflicted on him. In Ext.P1 he has no such case. On the other hand, statement in Ext.P1 is that after closing his shop at Manjeri, he got into the CRRP 659/02 16 bus and alighted from the bus and lighting a candle was walking towards his house. If PW3 was also along with him, I have absolutely no doubt that PW1 would have mentioned about it in Ext.P1 statement. It is clear that PW3 was not present at the scene and thus he was not an eye witness. Therefore, learned Sessions Judge was perfectly right in not relying the evidence of PW3. 9. PW2 deposed that he was an eye witnesses. Argument of the learned counsel is that PW2 was not an eye witnesses and he was planted subsequently. Learned Sessions Judge also accepted the evidence of PW2. On going through the evidence of PW2, I find it difficult to rely on his evidence. As per the evidence of PW2 from the box, he has no previous acquaintance with the petitioner and CRRP 659/02 17 he could identify petitioner as the person who inflicted the injuries on PW1 on that night as he identified him. Statements of PW2 recorded by the investigating officer were confronted to him and were marked Exts.D1 to D10. Those statements were subsequently proved through the investigating officer. Even though evidence of PW2 from the box was that he has no previous acquaintance with the petitioner, his version in Ext.D1 portion of the statement was that when the person who inflicted the injury was running, he identified him as Illathodi Beeran, who had married recently from Vilayil of Nellikkuth who is the petitioner. So also in Ext.D2 portion of the statement of PW2 had stated that he has noted the registration number of the vehicle and its first digit was nine and last digit was seven and it was a CRRP 659/02 18 taxi. When examined, PW2 denied it. In the light of these contradictions, it is clear that PW2 is not telling the truth. More over, if PW2 had known the petitioner earlier and identified him on that night, when PW2 had accompanied PW1 to the hospital, identity of the culprit would have been definitely disclosed and it would have been found a place in Ext.P9. When the entire evidence of PW2 is appreciated in the proper perspective, it is very difficult to rely on his evidence. 10. What remains is the evidence of PW1. As rightly pointed out by the learned counsel, it is clear that there was no exhaustive investigation. Neither the vehicle involved in the incident nor the person who was driving the vehicle nor the persons who were accompanying the petitioner in that jeep on CRRP 659/02 19 that night, were not traced and even the weapon could not be recovered. But for the failure to investigate the case properly, petitioner cannot be acquitted, if the evidence against him is trustworthy, credible and reliable. 11. Argument of the learned counsel is that evidence of PW1 with regard to the identity of the petitioner should not have been accepted. It was argued that Ext.P8 report submitted by Judicial First Class Magistrate, Malappuram who conducted the test identification parade was rightly not relied on by learned Sessions Judge as the Magistrate was not examined and opportunity was denied to the petitioner to cross examine the Magistrate regarding the conduct of the test identification parade and the test identification parade was conducted only in CRRP 659/02 20 February, 1990 though petitioner was arrested on 23/7/1989. It was argued that when it was suggested to PW1 that the accused was known to him at the hospital, PW1 did not deny it as such and in such circumstances, no reliance could be placed on the identification made by PW1 from the box. True, Ext.P10 discharge certificate shows that PW1 was discharged from the hospital on 4/8/1989. Petitioner was arrested on 23/7/1989. Records show that he was released on bail on 25/7/1989 by learned Sessions Judge. Records also show that investigating officer had submitted a report to conduct test identification parade before Chief Judicial Magistrate on 24/7/1989 itself, the day after arrest of the petitioner. Chief Judicial Magistrate directed Judicial First Class Magistrate, Malappuram to conduct the CRRP 659/02 21 test identification parade, as per order dated 27/7/1989. In such circumstances, it cannot be said that investigating officer did not take steps to get the test identification parade done immediately after arrest of the petitioner. Even though there was some delay in conducting the test identification parade by the Magistrate, as it was conducted only on 8/2/1990 nothing was asked about the delay when the investigating officer was examined. There was no case for the petitioner when the investigating officer was cross examined that he was shown to PW1 either when he was arrested and in detention before he was released on bail or when petitioner appeared before the investigating officer as directed in the order, granting bail. In such circumstances, petitioner is not entitled to contend at this CRRP 659/02 22 stage that he was shown to PW1 before he was identified in the test identification parade conducted on 8/2/1990 or that PW1 had occasion to see him before. Therefore, on the ground of delay in conducting the test identification parade, I cannot agree with the submission that identification of the petitioner by PW1 is to be disbelieved. Facts of the case in Kannan's case (supra) relied on by the learned counsel is different. That was a case where evidence of witnesses, who identified the accused, show that there was a crowd near the police station and the witnesses found the accused running. Their Lordships found that by seeing a person running one need not necessarily be that the accused person. It was also held that when a witness identifies an accused who is not known to him earlier, in the court for the first time CRRP 659/02 23 his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations. As idea of holding test identification parade is to test the veracity of the witness on the question of his capability to identify an unknown person, whom the witness may have seen once, it was also held that if no test identification parade was held, then it it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court. Honourable Supreme court in Bharat Singh v. State of U.P (AIR 1972 SC 2478) had occasion to consider the delay in conducting the test identification parade. It was held that there was delay of about three months for holding identification parade, but no questions were CRRP 659/02 24 asked to the investigating officer as to why and how the delay occurred. It was held that “It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences.” Their Lordships held that if the accused has any contention that identification parade was held in an irregular manner or that there was an undue delay in holding it, investigating officer should have been cross examined in that behalf and when there is no challenge, on those grounds, accused cannot take advantage. Honourable Supreme Court in Mahabir's case (supra) considered the question of failure to conduct test identification parade as well as value of identification made in court. It was CRRP 659/02 25 held that the purpose of prior test identification is to test and strengthen the trustworthiness of that evidence and it is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused, who are strangers to them in the form of earlier identification proceedings. It was held that rule of prudence is subject to exceptions and when the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration, test identification parade is not mandatory. It was also held that failure to conduct test identification parade is not fatal in all cases and the substantive evidence is identification made by the witness from the court and not the CRRP 659/02 26 identification made in the test identification parade. 12. The crucial question is whether identification of the petitioner, as the person who inflicted the injuries on PW1 by PW1 is trustworthy, credible and reliable. It is to be born in mind that PW1 though did not disclose the features in Ext.P1 FI statement has categorically stated that there was sufficient light at the scene of occurrence, as there was electric light in the nearby house and in the light he could identify the person by sight. He had furnished some of the features when his further statement was recorded by the investigating officer under Section 161 of Code of Criminal Procedure. When PW1 was cross examined availability of the light to identify the person who inflicted the injury on him was CRRP 659/02 27 not challenged. So also, the capability of PW1 to identify the culprit at that time was also not challenged. Though in Ext.P1 FI statement, PW1 did not furnish particulars, it is clear from the cross examination that in the subsequent statement recorded, PW1 had disclosed the features as PW1 was asked about features by the learned counsel appearing for the petitioner. In the light of the evidence it cannot be said that PW1 did not disclose the features of the person who inflicted injury on him so as to identify him at a later stage. It is also to be born in mind that evidence of PW1 is that while he was walking with a lighted candle on his hand, a jeep came from the opposite side, it was slowed down and just passed PW1 and stopped thereafter and the person who inflicted the injuries on PW1 got CRRP 659/02 28 down from the jeep. He called PW1 as “Usthad” and thinking PW1, a Professor in an Arabic college that the person is known to him, stopped and turned towards him. The person who got down from the jeep, then beat on his face with force and PW1 fell on the road. According to PW1, that person took a knife and with the knife inflicted injuries on his face and the chest while PW1 was lying on the road face upwards. If such injuries, as recorded in Ext.P9 wound certificate, are to be inflicted on PW1 while he was lying on the road face upwards, necessarily the culprit has to bent. If at that time, there was sufficient light to identify the person, PW1 could definitely identify the person. PW1 thus identified petitioner as that person. Though learned counsel vehemently argued that PW1 could not CRRP 659/02 29 identify petitioner at that time as he has no previous acquaintance, when PW1 was first beaten on the face and when he fell down that person bent and inflicted the injuries, PW1 would definitely have sufficient opportunity