IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 CRL.A.No. 1663 of 2003(D) ------------------------ SC.9/2000 of ADDL.DISTRICT & SESSIONS JUDGE(ADHOC) FAST TRAC-I, MANJERI CP.40/1999 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT(S): IST ACCUSED. ------------------------------------------ RAVI, S/O.PERACHAN, THEKKEPALLIYIL HOUSE VAZHAYOOR AMSOM DESOM, EAST VAZHAYOOR. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.BINDU SREEKUMAR RESPONDENT(S): COMPLAINANT. ------------------------------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dkr M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1663 OF 2003 ------------------------------ 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. 2 CRL.A.NO.1663/03 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 3 CRL.A.NO.1663/03 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. 4 CRL.A.NO.1663/03 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. 5 CRL.A.NO.1663/03 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 6 CRL.A.NO.1663/03 7 CRL.A.NO.1663/03