SHABEER v. THE STATE OF KERALA

SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 11.01.2024, THE COURT ON 17.01.2024 DELIVERED THE FOLLOWING: Crl. Appeal No.879 of 2009 2 P.G. AJITHKUMAR, J. ----------------------------------------------------------- Crl. Appeal No.879 of 2009 ----------------------------------------------------------- Dated this the 17th day of January, 2024 JUDGMENT This appeal is filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). The appellants are accused Nos.1 and 2 in S.C.No.30 of 2009 in the Court of the Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri. They assail their conviction and sentence for an offence punishable under Section 395 of the Indian Penal Code, 1860 (IPC).

The Additional Sessions Judge tried the appellants along with one Sri. Noufal on the following charge: At about 9.15 a.m. on 18.12.2007, PW1 Sukumaran, who was the Manager of Panakkathottom Rubber Park, which is situated at Karinkallathani, while unlocking and opening the shutter of the shop, placed his bag containing currency notes of Rs.1 lakh on the floor. The appellants along with Sri. Kabeer (2nd accused in the charge) came in a car bearing Reg. No.KL- Crl. Appeal No.879 of 2009 3 53-1900. The 1st appellant was driving and the 2nd appellant was sitting beside in the front seat. Sri. Kabeer came out from the rear seat, suddenly picked up the bag placed by PW1 on the floor and rushed back in the car. PW1 followed him and caught the door of the car, but Sri. Kabeer kicked him down and closed the door. In that course, PW1 sustained an injury at his left little finger. The assailants drove away the car. Accused No.3 and one Azad (accused Nos.4 and 5 in the charge) followed the car in an autorickshaw bearing Reg. No.KL-10-K-2012 in aid of those in the car.

At the trial, PWs.1 to 10 were examined and Exts.P1 to P16 were marked. MO1 bag was identified. During the examination under Section 313(1)(b) of the Code, the appellants maintained that they were innocent. No defence evidence was let in except Exts.D1 to D3, which are contradictions in the evidence of PWs.1 and 8. The trial court, after appreciating the said evidence, held the appellants guilty for the offence under Section 395 of the IPC and found Sri. Noufal not guilty. Consequent conviction and sentencing of Crl. Appeal No.879 of 2009 4 the appellants by the trial court are assailed by them essentially on the ground of question of identity.

Heard the learned counsel for the appellant and the learned Public Prosecutor.

There were five accused, among whom, accused Nos.1, 2 and 4 alone stood trial. Accused No.2 Kabeer and accused No.5 Azad were absconding. While the 4th accused was acquitted, accused Nos.1 and 3 were convicted.

Going by the case of the prosecution, accused Nos.1 to 3 came in the Maruti car at the place of occurrence. The 1st accused was driving the car and the 3rd accused was sitting beside. It was the 2nd accused, who took away the bag. He entered the car through the rear door and immediately PW1 reached near the car and caught the door, but he could not get a grip on the 2nd accused or the bag. He kicked PW1 down and closed the door. The car was driven away. The accused Nos.4 and 5 followed the car in an autorickshaw. The prosecution arraigned all of them as accused alleging commission of an offence of dacoity on its finding that Crl. Appeal No.879 of 2009 5 accused Nos.4 and 5 aided the others in committing the offence. The court below, after trial, found that the evidence was totally insufficient to implicate accused Nos.4 and 5 in the case and they were acquitted.

The learned counsel for the appellants would submit that there is absolutely no evidence to prove identity of appellants, who are accused Nos.1 and 3 in the charge. The prosecution relies on the evidence of PWs.1, 8 and 10 to establish the identity of the appellants. While PW1 deposed before the court identifying the appellants, DW8 failed to identify. PW10 is the investigating officer. He, in fact, had accompanied PWs.1 and 8 and one Aboobacker to locate the assailants. The version of PW1 is that immediately after the assailants leaving the place in the car, people, including PW8 from the neighbourhood assembled and Sri. Aboobacker came in a Tavera car. On appraising him of the incident, Sri. Aboobacker, who saw a Maruti car and autorickshaw going in his opposite direction in haste, followed the car and autorickshaw along with PW1 and Sri. Aboobacker. PW10, the Crl. Appeal No.879 of 2009 6 Circle Inspector, was informed about the incident and he in the police jeep came to locate the assailants. They met each other and proceeded together in the police jeep. Near the house of one Hamsa Haji, the said Maruti car was located. Finding no chance to escape, they abandoned the car and took on their heels. PW1, PW10 and others followed, but could not apprehend them. The lost bag and money were in the car, which were seized. From the aforesaid turn of events, PWs.1, 8 and 10 claimed to have seen the appellants and the prosecution relies on the said witnesses to prove their identity.

As stated, PW8 did not identify before the court either of the appellants. Therefore, his evidence is not available to prove the identity of the appellants. PW10 did not state in court that he could identify the persons who came out from the Maruti car and ran away. His version is that Sri. Aboobacker told him the names of the persons so escaped. Of course, he arrested the appellants subsequently, but that is not helpful to prove the fact that they were the persons who Crl. Appeal No.879 of 2009 7 committed the offence. Therefore, the evidence available to prove the identity of the appellants is that of PW1 alone.

The 1st appellant was the driver and the 2nd appellant was the person sitting in the front seat in the Maruti car. They did not come out of the car at the time of occurrence. PW1 did not claim that while stopping the car near his shop, he had noticed the occupants in the car. He was in his effort to open the shutter. It was at that time the 2nd accused came out of the car and took away the bag. He has no claim that during his attempt to get back the bag he could see and identify the persons sitting on the front seats in the car. The other opportunity for him to see the robbers was when they ran off after abandoning the car. PW1 did not claim that he could see them in a close proximity at that time. He admitted during cross-examination that he could not see and identify the culprits except in the court during trial. It may be noted that he could know the names of the culprits as stated by others. From the aforesaid evidence of PW1, it cannot be said that his identification of the appellants before the court is credible. Crl. Appeal No.879 of 2009 8

When the appellants were not the persons familiar to PW1 before trial, his identification before the court has inherent infirmity. Adding to that, the prosecution did not conduct a test identification parade. It is true that a test identification parade is not always mandatory, but when the assailants are persons not familiar to the witness and there was no sufficient time to see and notice the features of the assailants at the time of commission of the offence, lack of identification parade makes the identification by the witness first in the court untrustworthy. That is the situation in this case. Therefore, the evidence of PW1 is not enough to prove that the appellants were the real culprits.

One word about the conviction of the appellants for an offence under Section 395 of the IPC. An offence under Section 395 of the IPC is attracted only if five or more persons conjointly commit the offence. The court below categorically held that accused Nos.4 and 5 did not involve in the offence. Dehors such a finding the court below proceeded to convict the appellants for an offence under Section 395 of the IPC, Crl. Appeal No.879 of 2009 9 which is palpably wrong. Be that as it is, the prosecution failed to prove beyond doubt that the appellants were the two among the culprits, who committed the offence of stealing MO1 bag together with Rs.1 lakh from the possession of PW1 and caused him hurt in the course of taking away the booty. The findings to the contrary of the court below is wrong. Hence, the impugned judgment is liable to be set aside.

Accordingly this appeal is allowed. On setting aside the conviction and sentence as per the impugned judgment the appellants are acquitted and set at liberty. Sd/- P.G. AJITHKUMAR, JUDGE