IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 CRL.A.No. 11 of 2006() ---------------------- (AGAINST SC.155/2004 OF THE COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC-II), THODUPUZHA DATED 20.12.2005) .................... APPELLANT(S): -------------- 1. ANIL KUMAR, S/O.SREEDHARAN NAIR, MUTHUKUMMEN VILLAGE, ADACKAMURI BHAGAM, PUTHIYAVEEDUVILAKAM, PUTHENVEEDU HOUSE. 2. MADHUKUMAR, S/O.MADHAVAN, KOTTARAM HOUSE, NATTAKAM VILLAGE, PALLAM KARA, NEAR S.N.D.P. TEMPLE. 3. PADMAKUMAR, S/O.SOMANADHAN, POONKAVANAM HOUSE, THIRUVARPPU VILLAGE, KILIROOR KARA. 4. GIGI T. JOSEPH, S/O.JOSEPH, THADATHIL HOUSE, VAZHAPPILLY VILLAGE, KURISHUMMOODU, VALIYAKULAM PATHICKAMUKKU. BY ADV. SRI.B.RAMAN PILLAI FOR A1 SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI..ANIL K.MOHAMMED SRI.P.VIJAYA BHANUFOR A2 TO A4 RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr. A. No.11 OF 2006 ------------------------------------------------------------------ Dated 28th October 2009 Judgment Balakrishnan Nair, J. The appellants were accused 1 to 4 in Sessions Case No.155/04 of the Court of Additional Sessions Judge (Adhoc-II), Thodupuzha. The case of the prosecution, in brief, is as follows : 2. The deceased Biju was in the habit of cheating people, promising to give them “Nagamanikyam”, which is supposed to be a precious stone, found on the hood of Cobra or other serpents. It is considered as a talisman, the possession of which, will bring good luck. He used to cheat people, using MO2 container, containing transparent globules of oil of fish like shark liver oil or cod liver oil. Arrangement is made with a battery and wire to light an electric bulb fixed under the bottom of the globules in the container. During night time, the said globules, when lit by electric bulb, will have the appearance of precious stones. Offering to give Nagamanikyam, he used to collect money from several fortune seekers. According to the prosecution, the Accused No.7 fell a prey to the cheating of the deceased. The deceased collected about Rs.60,000/- from A7, out Cr.A.No.11 of 2006 2 of which, Rs.5,000/- was paid to the agent, Thankai, who introduced A7 to the deceased. On realising that he was cheated, A7 hired the services of other accused, who are musclemen, to kill the deceased. A1 to A6 came in a Tata Sumo vehicle, disguising themselves as persons interested in buying Nagamanikyam from the deceased. They came to Kattappana by about 2 a.m. in the night between 3.11.2000 and 4.11.2000. As telephoned by them, the deceased, along with PW2 and others went and met them at Kattappana. The deceased came back to his house and after some time, at about 4 am., the accused persons came in the Tata Sumo car to the residence of the deceased. On being called by them, the deceased went to the roadside. On hearing a cry, calling PW1, she went to the side of the vehicle. She found two persons, holding her husband and suddenly, A2 took a knife from the vehicle and stabbed him. Thereafter, the injured was pushed into the vehicle and they drove away. PW1, along with PW2 and her child, went to the quarters of the Circle Inspector, but the said Officer was not there. Thereafter, she went to the Police Station and gave information about the incident. Later, she went in search of her husband in her jeep and on the road, at about 7.am, she found a deadbody, surrounded by some local people and Police Constables. She recognised that it was the Cr.A.No.11 of 2006 3 body of her husband. Ext.P1 First Information, as mentioned earlier, was laid by PW1, which was recorded by PW30 SI of Police and he registered Ext.P1(a) F.I.R. The Circle Inspector of Police took over the investigation and he held the inquest, sent the body for autopsy and prepared the scene mahazar. He questioned the witnesses, including PW1, PW2 and others. A1 to A4 were arrested on 9.11.2000, A5 and A7 were arrested on 18.11.2000 and A6, on 03.12.2000 respectively. A1 to A4, on being arrested, PW1 was called to the Police Station and from among the persons standing there, she identified A2, as the person, who inflicted a stab injury on her husband. PW27, the Circle Inspector of Police completed most part of the investigation. PW28, the successor CI of Police prepared the draft charge and later, PW29, the then CI of Police filed the final report before the court. The case was committed to the Sessions Court by the Judicial First Class Magistrate's Court, Kattappana, which, in turn, was made over to the Additional Sessions Court, Thodupuzha, for trial. 3. The accused pleaded not guilty to the charge framed against them. The prosecution, to prove its case, examined PWs1 to 30, produced Material Objects 1 to 17 and marked Exts.P1 to P41(a). Cr.A.No.11 of 2006 4 From the side of the defence, Exts.D1 and D2 were marked. D1 was the certified copy of the statement of PW1 recorded under S.164 Cr.P.C., by the Magistrate. D2 was the certified copy of the scene plan prepared by PW20 Village Officer. 4. PW24 was the doctor, who conducted autopsy and issued Ext.P26 postmortem certificate. The following injuries were noted in it : “1. Incised penetrating wound, 4.5 x 0.5 cm. oblique on the left side of back of trunk. Its upper inner end was broad and was 6 cm. outer to mid-line and 16 cm below lower end of scapula. The other end was pointed. The wound entered the left chest cavity via 11th intercostal space, transfixed the lower margin of lung, entered to the left ventricular cavity, cutting the back of left ventricle. Left lung was collapsed and left chest cavity contained 500 ml. of blood. Pericardial cavity contained 200 ml. of blood. The wound was directed to the front and inwards for a minimum depth of 6 cms. 2. Contused abrasion 4.5 x 0.5 cm on the back of trunk in the mid- line 3 cm. below root of neck. 3. Abrasion 1x1 cm. on the back of right elbow. 4. Abrasion 1x0.5 cm on the back of left elbow. 5. Contused abrasion 1x1 cm on the dorsum right foot at the root of little toe.” PW24 deposed that the cause of death was Injury No.1. The other injuries were only minor abrasions or contusions. The evidence of the said Doctor and Ext.P26 would prove beyond doubt that the death of Cr.A.No.11 of 2006 5 Biju was a homicide. Having regard to the facts of the case, we feel that it is not necessary to refer to the deposition of all the witnesses examined in this case. We notice that PW1 has identified A2 and A7, while in the box. She has deposed that she watched from close quarters, the stabbing of her husband and the blood, which oozed out, fell on her face also. She identified A2 as the person, who inflicted the injury. She also deposed that on the arrest of A1 to A4, she was called to the Police Station and from among the persons present there, she could identify A2, as the person, who inflicted the stab injury. While in the box, she said that she could identify A2 as the person, who inflicted the injury. Though, she was subjected to extensive cross examination by the accused, nothing has been brought out to discredit her version. Going by her evidence, we feel that she is a rustic trustworthy witness, speaking the truth. 5. PW2 has deposed that among the persons who came to see Nagamanikyam at 2 am in the night, he could identify accused Nos.1 to 4. But, he would, in his cross examination, say that after seeing it, they went away and there appeared to be no ill-will for them against Biju. Later, a group of persons came about 4 am. to the residence of Biju and as mentioned earlier, A2 inflicted a deadly blow when the Cr.A.No.11 of 2006 6 deceased went near the vehicle, in which they travelled. PW1 did not identify A1, A3 or A4. Then, the next item of evidence against A1, A2 and A3 is the recovery of their dress made under S.27 of the Evidence Act and the finding in Ext.P40 FSL report that the blood stains found in their dress is of human origin. The trial court, based on the above materials, took the view that among the persons, who came along with A2, there were A1, A3 and A4 also and found them also guilty of the offence of murder. 6. Before dealing with the case of A2, we will consider whether the evidence on record was sufficient to enter a finding of guilt against A1, A3 and A4. As mentioned earlier, they met the deceased at about 2 am. and they went away. Later, a group of persons came in a vehicle at about 4 am. and one among them caused the fatal injury, which led to the death of Biju. It is also found that the clothes recovered based on the information furnished by them, contained human blood. We think, these materials are quite insufficient to hold that A1, A3 and A4 were among the persons, who came in the vehicle at 4 am. The circumstances proved in this case cannot be described as unerringly pointing to the guilt of the accused and it cannot be said that no proposition consistent with their innocence is possible. The circumstances proved may be Cr.A.No.11 of 2006 7 sufficient to create suspicion against accused 1, 3 and 4. But, no amount of suspicion can take the place of legal evidence. So, they are entitled to get the benefit of doubt. 7. But, in the case of A2, we find that there is direct evidence of PW1, who, as mentioned earlier, watched the incident from close quarters. She pointed out him to the police about 4 or 5 days after the incident, after the arrest of A1 to A4, when she was called to the Police Station and while in the box also, without any hesitation, she identified him. She also stated that since the incident took place 5 years ago, she was not able to identify others. The learned counsel for the second appellant submitted that in the absence of a test identification parade, her identification in court cannot be acted upon. This is all the more so, since A2 was shown to her by the police on his arrest. In support of the above submission, the learned counsel for the appellant relied on the decisions of the Apex Court in Mohammed Iqbal.M.Shaikh v. State of Maharashtra (1998(4) SCC 494) and Mohanlal v. State of Maharashtra (AIR 1982 SC 839). In the decision in Mohammed Iqbal.M.Shaikh v. State of Maharashtra, we notice that it was a case of communal clash between two groups of people and persons from one group were Cr.A.No.11 of 2006 8 indiscriminately made accused. In the facts of the case, an observation was made that the identification for the first time in the court without a test identification parade cannot be acted upon. The second decision in Mohanlal v. State of Maharashtra relates to identification of an assailant, with whom the witness had no previous acquaintance. The accused was identified before the court for the first time, especially in the context of the admitted position that the accused was shown to the witness before the trial. Going by the facts of the cases, we feel that no universal principle is laid down in the above said decisions that identification for the first time in court cannot be relied upon . The learned Public Prosecutor brought to our notice the decision of the Apex Court in Ronny v. State of Maharashtra (AIR 1998 SC 1251), wherein the Apex Court upheld the view taken by the courts below, relying on the version of a witness in the court even in the absence of a test identification parade. In paragraph 24 of the said decision, it is held as follows : “The identification of appellants by PW29, PW34, PW42 and PW45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of appellants by PW42 and PW45 are concerned, the trial court as well as the High Court had not accepted the same but the identification of appellants by Cr.A.No.11 of 2006 9 PW29 and PW34 had been accepted by both the trial court as well as by the High Court and in our view, rightly. We have already laid down the above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the above mentioned aspect, the evidence of PW42 and PW45 has been rightly rejected by the trial court and the High Court as PW42 is a rickshaw driver, who had no opportunity to see closely the appellants whom he took to Rooman bungalow in the night. So also PW45's identification of A1 in court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A1 closely. But the same is not the position with PW29 and PW34. They were talking to the deceased Rohan Ohol at the time when the appellants came to Rooman bungalow. Indeed A1 wished the deceased Rohan who introduced A1 as Nitin Anil Swargey. Thereafter, A1 introduced A2 and A3 to Rohan Ohol and PW29 and PW34. They talked together for about 7-8 minutes and on Rohan Ohol's saying them to sit inside the house, they left their soiled shoes in the verandah and entered the house. It can safely be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24th July, 1992, the defence in their searching and lengthy cross- examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such, evidence of identification of the appellants at their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial court as well as by the High Court. We, therefore, find no illegality in the judgment of the courts below in accepting their evidence of Cr.A.No.11 of 2006 10 identification.” In this case, we notice that PW1 watched the incident from close quarters and after a few days, on the arrest of the accused, she pointed out to the police, who among them inflicted the injury and after 5 years, she has again identified the person, who attacked her husband. We feel that if, as part of the investigation, the witness pointed out the person, who inflicted the injury, from among the persons present in the police station, the same cannot be treated as introducing the accused to the witness so that she could identify him while in the box. Going by the deposition of PW1, we have no doubt that she is speaking the truth. Otherwise, she could have identified all the accused, while in the box. Every decision is rendered, having regard to the special facts of each case. So the general principle canvassed by the learned counsel for the appellant cannot be made applicable to the facts of this case. 8. We also notice that the medical evidence corroborate the version of PW1. The deceased died of one stab injury, which is Injury No.1 in the postmortem certificate. The dress stated to be worn by A2 on the date of incident, which was recovered under MO27 contained human blood as per Ext.P40 FSL report also. So the same Cr.A.No.11 of 2006 11 also corroborate the prosecution case. In view of the above evidence and materials on record, we agree with the view taken by the Trial Court, concerning the guilt of A2. 9. In the result, we acquit appellants 1, 3 and 4 (A1, A3 and A4 in Sessions Case No.155/04 of the Court of Additional Sessions Judge (Adhoc-II), Thodupuzha). They shall be set at liberty forthwith, if their detention is not required in connection with any other case. We confirm the conviction and sentence imposed on the second appellant (A2 in the above Sessions Case). The Criminal Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr.A.No.11 of 2006 12