Chandran vs State of Kerala

Harun-Ul-Rashid, J.—The second accused in Sessions Case No. 1285 of 2005 in the Court of the Session, Palakkad Division, is the appellant. The appeal is directed against the judgment dated 5.10.2010. The appellant/accused and another were prosecuted for the offence punishable u/s 20(b)(ii)(C) of the N.D.P.S. Act. The court below found that accused Nos. 1 and 2 are guilty of the offence and are convicted and sentenced to undergo rigorous imprisonment for a period of 10 years (each of the accused) and to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for one year. The first accused died after passing the impugned judgment. Parties are hereinafter referred to as arrayed in the sessions case. The prosecution case is that on 16.3.2005 in the early hours at 3.30 a.m., PW 1 and his party saw the accused moving along the road side carrying plastic sacks on their heads. The police party were returning to the police station in the station vehicle. On seeing the police, the accused tried to run away. The first accused was apprehended with the sack, he had in possession. The appellant/accused dropped the sack he had and ran away and escaped. The second accused could not be caught even though the police men put up a chase. The contents of the sacks were checked and found to be ganja. The sack held by the first accused had 14 kg of ganja and A2 had 18 kgs. The first accused was arrested on the spot. Samples were taken from the ganja found in the sacks separately. Contraband articles were seized. PW 1 registered the crime. PW 5, Circle Inspector, conducted the investigation. PW 5 arrested the second accused on 20.4.2005. PW 5 conducted the investigation which was completed by PW 6.

The prosecution examined PWs 1 to 6 and marked Exts. P1 to P12. MOs 1 and 2 were marked. In the 313 statement, the accused denied the evidence against him as false and further pleaded innocence.

PW 1 is the Assistant Sub Inspector, Mannarkkad Police Station. PW 1 and his party had duty in connection with festival in a temple on the date of occurrence. PW 1 deposed that while PW 1 and his party were returning to the police station in the department jeep during the early hours at about 3:30 a.m. on 16.3.2005, they reached the place called Manaladi. The police party saw both the accused walking alongside with sacks on their heads. On suspicion, the jeep was stopped to question the accused. When they approached the accused, the second accused dropped the sack from his head and ran away. The sack found in possession of the first accused and that dropped by the second accused were examined in the presence of the witnesses. PW 1 further testified that the name and details of the second accused were gathered from the first accused. The samples were taken and remaining ganja were seized as per Ext. P1 mahazar. The first accused was arrested. Exts. P2 and P3 were the arrest memo and the inspection memo prepared for the arrest of the first accused. PW 1 registered the crime as per Ext. P4 FIR. He also identified MO 1 and MO2 as the sacks with ganja after taking samples. PW 2, a Forest Guard was on duty at the forest check post at the place called Manaladi. He attested Ext. P1 mahazar. Ext. P7 is the carbon copy of the report submitted by PW 1 for the arrest of the first accused and seizure of contraband. PW 5 prepared Ext. P6 scene mahazar. PW 5 arrested the second accused on 20.4.2005. Exts. P8 and P9 are the arrest memo and the inspection memo respectively. PW 3 is the Village Assistant who prepared the site plan and PW 4 is a witness to Ext. P6 scene mahazar. On receipt of Ext. P12 chemical examination report, PW 6 concluded the investigation and laid charge sheet against the accused.

PW 1 deposed that the jeep was stopped near the accused. A1 was apprehended on the spot. The second accused ran away and dropped the sack from his head. PW 1 deposed that he had noticed the person who had run away. He gathered the name and other details of the second accused from the first accused. He had identified the second accused as the person who run away, during the trial.

The court below observed that PW 1 being a police personnel would have every expertise to make note of the features of the run away man so that he could be identified later. PW 1 and others, who were travelling in the jeep suddenly stopped the vehicle when they saw these two persons carrying sacks. When the jeep was stopped, the second accused dropped the sack and ran away from the scene. PW 1 said that on seeing the police party, the second accused ran away dropping the sack. The evidence and circumstances would show that he ran away from, the scene on seeing the police. At the most, PW 1 and his police party can witness the second accused for a few seconds. Therefore, the observation of the court below that PW 1 being a police-personnel would have every expertise to make note of the features of the run away man, so that he could be identified later is without any basis.

The learned counsel for the appellant pointed out that there was absolutely no evidence with regard to the identification of the appellant and his identification for the first time in court during the course of the trial, would not be sufficient to enter a conviction in the absence of any other evidence. PW 1 deposed before the court that there were altogether 9 persons in the jeep. Except PW 1, none of the police personnel who were travelling along with PW 1, were examined by the prosecution. It is true that the second accused was identified by PW 1 in court. Though other persons are also in the jeep, who also witnessed the incident, none of them were examined.

The incident was happened on 16.3.2005. The appellant/accused was arrested on 20.4.2005. After arrest, there was net even an attempt oh the part of the investigating officer to identify the second accused by PW 1 who claimed to have seen the appellant/accused running away from the place of occurrence. The appellant/accused was identified only by PW 1 in the court during the examination. The trial was commenced on 19.6.2010 and completed on 4.9.2010. The gap between the date of incident and the period of trial is more than 5 years. The appellant was a total stranger to PW 1. He had no occasion to see the appellant/accused at any point of time other than at the time of incident and during trial. I have already noticed that on the date of incident, there was no sufficient time for PW 1 to watch the accused/appellant. There is absolutely no evidence other than the identification made by PW 1 long after the incident.

It is true that there is no inflexible rule that an identification made for the first time in court has to be always ruled out for consideration. The Apex Court in Mahabir Vs. The State of Delhi, : Mahabir Vs. The State of Delhi, , laid down the principles governing the provisions of Section 9 of the Evidence Act. It was held that the identification in court is a substantive evidence. The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. The Apex Court in the above decision held as follows:

The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.

On the facts of the case, the Apex Court held that ''a person, who is well known by sight even before the commission of the occurrence, need not be put before an identification parade in order to be marked out.'' Following the dictum laid down in Prakash Chand Sogani v. State of Rajasthan, the court held as follows:

The absence of test identification in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification. If it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case.

The Apex Court also held as follows:

It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.

The Apex Court followed the decision reported in Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, , where it was held as follows:

It is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused.

The Apex Court also quoted with approval the decision reported in State of Uttar Pradesh Vs. Boota Singh and Others, held that ''the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.''

Applying the aforesaid principles to the facts of this case, this Court is of the view that the identification of the appellant/accused only in the court when the accused was not known earlier to PW 1 had to be treated as valueless, especially when nobody else was examined by the prosecution who had also occasioned to see the accused on 16.3.2005. The investigating officer has also failed to identify the accused by PW 1 after his arrest though he was arrested on 20.4.2005. The trial begins after more than 5 years of the date of arrest of the accused and no opportunity was utilised for identifying the accused/appellant. PW 1 had no opportunity to note the features of the accused in a dark night other than seeing him for a few seconds. When the accused is a stranger to PW 1 as on the date of event then the identification of the accused by PW 1 soon after his arrest is of great importance because it furnishes corroboration of evidence to be given by PW 1 later in court at the trial.

The principles or identification, the purpose, failure to hold identification are elaborately discussed by the Apex Court in Dana Yadav @ Dahu and Others Vs. State of Bihar, and held as follows:

The evidence of identification is a relevant piece of evidence u/s 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by a witness in court.

The Apex Court further held that ''the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding or any other evidence.'' The court also held that ''ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence.'' If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence.

The learned Public Prosecutor had elaborately argued the case on the basis of the materials on record. According to him, on the date of event, there was enough opportunity to PW 1 to notice the features of the case and in such circumstances, the identification made by PW 1 in court is acceptable. The Public Prosecutor also submitted that there is no inflexible rule that an identification made for the first time in court has to be always ruled out for consideration. He also contended that the presumption is available u/s 54 of the N.D.P.S. Act in favour of the prosecution and that it is the burden of the accused to rebut the presumption.

The court below accepted the identification of appellant/accused by PW 1 stating also that PW 1 did not have any personnel animosity towards the second accused to implicate him in a false case. Yet another reason stated by the, court below for accepting the identification of the second accused in court by PW 1 is that the second accused while jumping over barbed wire fencing had sustained injuries on his leg and he had gone to the hospital for treatment, that he did not have a case that he suffered injuries on his leg in some other way. The court below found that the injuries found on the second accused at the time of arrest a few days after his escape would help to corroborate the version of PW 1 that the second accused himself was the person who run away and had dropped the sack which contained ganja. The prosecution has no case that the second accused suffered injuries while he escaped from the scene on 16.3.2005. The accused was arrested after a period of one month. The injuries noticed by PW 5 at the time of his arrest would be of no help to corroborate the version of PW 1 that the second accused himself was the person who ran away from the scene. The reasoning of the court below is erroneous and does not stand to reason. The presumption is available to the prosecution u/s 54 of the N.D.P.S. Act, only in a case where the prosecution is able to prove that it was the accused who possessed the contraband articles. In the aforesaid facts and circumstances of the case, the identification of the appellant/accused by PW 1 in the court is not sufficient enough to pin the crime against the second accused. For the reasons stated above, the identification of the second accused in court by PW 1 is not acceptable. In such circumstance, the prosecution has failed to prove the charge against the second accused.

In the result, the appeal is allowed and the appellant''s conviction and sentence are set aside. The appellant/accused is found not guilty of the offence punishable u/s 20(b)(ii)(C) of the NDPS Act and is acquitted. The accused is set at liberty. There will be a direction to release the accused forth with, if he is not required in connection with any other cases.