A.V. Prakashan vs State of Kerala

V. Ramkumar, J.—In this revision preferred from the Central Prison, Kannur, the revision petitioner who was the 4th accused in S.C. 96 of 1997 on the file of the Sessions Judge, Kasargaod for offences punishable under Sections 397 and 323 read with Section 34 I.P.C. challenges the conviction entered and the sentence passed concurrently by the courts below for the aforesaid offences.

The case of the prosecution as unravelled by the prosecution evidence is as follows:

P.W.2, Narayanan the de facto complainant along with P.W5 (Balakrishnan) landed at Bombay by air at 6 p.m. on 26-09-1996 after spending for about 8 years and 3 = years respectively in gulf countries. Both of them proceeded from Bombay to Mangalore by bus on 27-9-1996. By about midnight both of them reached Mangalore from where they proceeded to their native place in a K.S.R.T.C. bus bound to Peria in in Kasaragod District. They alighted the bus at Peria at about 3.30 a.m. on 28-09- 1996. From Peria they did not get any vehicle to reach their respective homes. Therefore, both of them started walking through the Panchayath road carrying their luggage on their person. Soon an autorickshaw came from the opposite side and pulled up near P.Ws 2 and 5. A3 who was driving the autorickshaw offered a lift to P.Ws 2 and 5. Thereupon both of them boarded the autorickshaw and proceeded towards their destination. After travelling for a distance of about 1 = kms. the autorickshaw was suddenly stopped at a place called Rayirappanadukka. The persons who came in the autorickshaw then announced that there was no petrol in the vehicle. Thereupon P.W2, the de facto complainant and his companion P.W5 alighted from the vehicle and started walking towards their destination carrying the luggage with them. They had hardly walked for about five minutes, when the very same autorickshaw came back from behind and pulled up near P.Ws 2 and 5. Suddenly three accused persons alighted from the autorickshaw and attacked P.W2 with weapons. P.W2 fell down along with his heavy luggage. P.W.5, however, managed to escape after receiving a few slaps at the hands of the accused. The accused persons assaulted P.W.2 and robbed him off his belonging and decamped from there in the autorickshaw. P.W.2 reached his uncle''s house at Kasaragod from where he was admitted in the hospital for treatment for the injures which he had sustained. In the test identification parade conducted on 23- 11-1996 by P.W.12 the Magistrate, P.W.2 the complainant and P.W.5 his companion identified A1 to A4. During the course of investigation the police were able to seize all the stolen articles from the accused persons confirming their complicity in the occurrence.

On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as P.Ws 1 to 21 and got marked 21 documents as Exts. P1 to P21 and material objects as MOs. 1 to 86.

After the close of the prosecution evidence, the accused was questioned u/s 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so.

The learned Assistant Sessions Judge, after trial, as per judgment dated 28-08-1998 found all the accused guilty of the offences and sentenced them to rigorous imprisonment for 7 years and to pay fine of Rs. 15,000/- and on deafult to pay the fine to suffer simple imprisonment for one year. On appeal prefeerred by the revision petitioner and the other accused as Crl.Appeal Nos. 210, 211,229 of 1998 and 111/2000 before the Sessions Court, Kasaragod, the learned Sessions Judge as per judgment dated 11-12-2001 dismissed all the appeals confirming the conviction entered and the sentence passed on all the accused persons. Hence, this Revision by the petitioner who was the 4th accused.

I heard Advocate Lijy Antony appearing on State Brief for the revision petitioner Advocate Sri. C.M. Nazar , the learned Public Prosecutor who defended the State.

In support of his contention to confirm the conviction entered and the sentence passed against the revision petitioner, the learned Public Prosecutor made the following submissions before me:

Apart from the fact that P.Ws 2 and 5 have given a credible account of the occurrence, both of them have identified the revision petitioner/4th accused correctly during the test identification parade conducted by P.W.12. Eventhough no specific overt act had been attributed against A4 the recovery of MO4 shirt pieces from the house of the revision petitioner at his instance confirms the fact that he was also in the gang of A1, A2 and A3.

I am afraid that I cannot agree with the above submissions. First of all, no specific overt acts had been alleged against the revision petitioner A4. It is true that he was correctly identified by P.Ws 2 and 5 in the test identification parade. But then it must be remembered that the defence had a contention that right from the beginning that after the arrest of the revision petitioner on 20-10-1996 the T.I.P. was conducted only on 23-11- 1996. This was at a time when A2 had not been apprehended by the police. It has been suggested to the Investigating Officer that in between the date of arrest of the accused on 20-10-1996 and the T.I.P. on 23-11-1996 there had been many occasions during which photographs of the revision petitioner and the other accused had been shown to the witnesses. Identification of a suspect during test identification parade does not come within the realm of substantive evidence. It can only amount to corroborate the evidence if there is other evidence against the accused. Going by the occurrence as narrated by P.Ws 2 and 5 , P.W.2 was sharing the drivers seat of the autorickshaw along with A3 and P.W.5 was sharing the back seat along with three accused. The time was 3.45 a.m. in a remote place at Peria. It is too good to accept the testimony of P.Ws 2 and 5 to hold that there was sufficient light for them to identify any of the culprits. Ext.P7 scene mahazar does not mention the presence of any street light at the scene of occurrence. The testimony of P.Ws 2 and 5 that they saw the assailants in moon light can be accepted only with a pinch of salt. In the first place, P.Ws 2 and 5 must have been fully tired after their journey up to Peria. Thereafter they had started walking from Peria towards their respective homes. P.W.5 having light luggage whereas P.W.2 had heavy baggage. If under these circumstances, they were to be offered a lift in an autorickshaw, chances are very remote that they might have seen the co-passengers with sufficient interest as to identify them later. Until the autorickshaw stopped under the pretext that petrol had exhausted, it was a smooth ride and P.W2 and 5 had no reason to suspect anybody in the autorickshaw. It was only during the latter part of the occurrence that the assailants suddenly got down the autorickshaw and assaulted P.Ws 2 and 5. P.W.2 at that time was carrying heavy luggage on his head and could not have been in a position to see the assailants. Admittedly the four intruders were strangers to P.Ws 2 and 5 who had no previous acquaintance with them. Even going by the narrative of P.Ws 2 and 5 they had only a fleeting glimpse of the co-passengers and that too under very poor light conditions. Hence it cannot be said that the identification of A1 to A4 by P.Ws 2 and 5 is beyond reproach.

The only other material to connect the revision petitioner with the occurrence is the alleged recovery of shirt piece by the investigating officer as per Ext.P11 mahazar. P.W.10 the witness to the said mahazar turned disloyal to the prosecution. The only other evidence was that of the investigating officer who was evidently forging a recovery u/s 27 of the Evidence Act to connect the revision petitioner with the occurrence. On the materials before court, it cannot be conclusively held that the prosecution has succeeded in establishing the guilt of the revision petitioner beyond reasonable doubt. The conviction entered and the sentence passed against the revision petitioner overlooking these vital aspects of the matter cannot be sustained and are accordingly dislodged. The revision petitioner is found not guilty of the offences punishable under Sections 397 and 323 read with Section 34 I.P.C. and is acquitted there under. He is set at liberty. He shall be released from prison forthwith unless his continued detention is found necessary in connection with any other case against him.

In the result, this Criminal R.P. is allowed as above.