IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 CRL.A.No. 1472 of 2008() ------------------------ SC.416/2006 of ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA .................... APPELLANT(S): APPELLANT ----------------------- S.MARIAPPAN, C.P.NO.4569, S/O.LATE SUBBAYYATHEVAR, A CELL-10, CENTRAL PRISON, MADURAI-625 016. BY ADV. SRI.LIJU.M.P(STATE BRIEF) RESPONDENT(S): RESPONDENT ------------------------- THE OFFICER-IN-CHARGE, HIGH COURT LEGAL SERVICES COMMITTEE, HON,BLE HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SMT.REGHA C.NAIR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1472 of 2008 ---------------------------------------------- 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 Crl.A. NO. 1472/08 3 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 Crl.A. NO. 1472/08 4 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 Crl.A. NO. 1472/08 5 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 Crl.A. NO. 1472/08 6 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. Crl.A. NO. 1472/08 7 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 Crl.A. NO. 1472/08 8 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