IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 Crl.Rev.Pet.No. 2642 of 2004(A) ------------------------------- CRA.267/2002 of SESSIONS COURT, THALASSERY CC.164/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER: 7TH APPELLANT/8TH ACCUSED ---------------------------------------------- P.V.ANOOP S/O. BHASKARAN NAMBIAR, SREEPATHI BHAVAN, P.O.MANGATTIDAM, KUTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.V.RAMKUMAR NAMBIAR SRI.P.M.RAFIQ SRI.C.X.ANTONY BENEDICT RESPONDENT: RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA - S.I. OF POLICE, KUTHUPARAMBA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ------------------------------------ Crl.R.P.No.2642 of 2004 ------------------------------------- Dated this the 29th day of October, 2010 ORDER The revision petitioner, who was the 8th accused in Crime No.390 of 1997 of Koothuparamba Police Station for offences punishable under Sections 143, 147, 148, 448, 427 & 435 read with Section 149 I.P.C., challenges the conviction entered and the sentence passed against him for the aforesaid offences. 2. The case of the prosecution can be summarised as follows:- On 9/10/1997 at about 4 a.m. at Mangattidam Amsom in Thalassery Taluk all the nine accused persons formed themselves into an unlawful assembly and in prosecution of the common object of the said assembly they committed rioting armed with deadly weapons after criminally trespassing into the building bearing No.IV/227 of Mangattidam Panchayat where PW.3 was conducting a textile-cum-tailoring shop. Thereafter the accused Crl.R.P.No.2642/2004 : 2 : persons committed mischief by setting fire to the furniture and textiles kept in the shop causing a loss of `.10,000/- to PW.3. The accused persons thereby committed the aforementioned offences. 3. On the accused pleading not guilty to the charge framed against them by the Judicial Magistrate of the First Class, Kuthuparamba for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined six witnesses as Pws.1 to 6 and marked three documents as Exts.P1 to P3. 4. The learned Magistrate after trial, as per judgment dated 20/6/2002 acquitted A7 but convicted all the remaining accused for the aforementioned offences and sentenced each of them to various terms of imprisonment and imposed a fine also for the conviction under Section 427 I.P.C. The substantive sentence were directed to run concurrently. Crl.R.P.No.2642/2004 : 3 : 5. Aggrieved by the conviction and sentence imposed on them A1 to A6, A8 and A9 filed Criminal Appeal No.267 of 2002 before the Sessions Court, Thalassery. As per judgment dated 8/9/2004, the lower appellate court acquitted A1, 2, 4, 5 & 9 of all the offences but confirmed the conviction in the case of A3, A6 & A8. It is the conviction entered and the sentence imposed on the 8th accused (revision petitioner) which is assailed in this revision filed by him. 6. I heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 7. The only point which arises for consideration in this revision is as to whether the conviction entered and the sentence passed against the revision petitioner can be sustained or not. 8. The Point:- Pws.1 & 2 were the persons examined as the eye witnesses to the occurrence. However, PW.1 turned hostile to the prosecution and PW.2 partly supported the prosecution. PW.3 is the Crl.R.P.No.2642/2004 : 4 : tenant in respect of the shop where occurrence took place. PW.4 is the owner of the said shop. PW.5 is an attestor to Ext.P2 scene mahazar. PW.6 is the SHO, Koothuparamba who conducted the investigation. 9. The entire case as against the revision petitioner hinges on the testimony of PW.2, the only occurrence witness who supported the prosecution. He claims to have seen the occurrence three years prior to the occurrence at about 4 a.m. when it was dark. Except a bald statement in the chief examination that there were about 14 miscreants including the accused persons, he did not specifically identify each and every accused person standing in the dock. No doubt, he stated that accused persons 3, 4, 5, 6 & 7 were previously known to him. But he did not say that A8 (the revision petitioner) was known to him previously. He did not specifically mention the name of the revision petitioner (A8) as one of the miscreants nor did he mention in overt act by the revision petitioner. As mentioned earlier, he was Crl.R.P.No.2642/2004 : 5 : deposing before the court three years after the occurrence. On his own admission, he did not have any previous acquaintance of the revision petitioner. If so, PW.6 (the investigating officer) had an obligation to conduct a test identification parade before putting the accused for trial. No test identification parade was conducted in this case. That apart, PW.2 has not specifically identified the revision petitioner in the dock as one of the miscreants. It is well settled that dock identification of an accused person for the first time in Court by a witness who did not have any previous acquaintance with the accused person prior to the occurrence, in the absence of a test identification parade, is absolutely valueless. (Kannan & others Vs. State of Kerala (AIR 1979 SC 1127). There is also the total lack of any evidence to the effect that there was sufficient light at that dark hour of night so as to facilitate PW.2 to see the culprits and identify them. The conviction entered and the sentence passed by the courts below overlooking Crl.R.P.No.2642/2004 : 6 : the above vital aspects of the case cannot be sustained. The revision petitioner is found not guilty of the offences refered to above and is acquitted of the same. He shall be set at liberty. This revision petition is allowed as above. V.RAMKUMAR, JUDGE skj