A.V. Prakashan v. NONE

Crl.R.P. 1146 of 2002-:2:-pulled up near P.Ws 2 and 5 . A3 who was driving theautorickshaw offered a lift to P.Ws 2 and 5. Thereupon both ofthem boarded the autorickshaw and proceeded towards theirdestination. After travelling for a distance of about 1 ½ kms. theautorickshaw was suddenly stopped at a place calledRayirappanadukka. The persons who came in the autorickshawthen announced that there was no petrol in the vehicle. Thereupon P.W2, the de facto complainant and his companionP.W5 alighted from the vehicle and started walking towards theirdestination carrying the luggage with them. They had hardlywalked for about five minutes, when the very sameautorickshaw came back from behind and pulled up near P.Ws 2and 5. Suddenly three accused persons alighted from theautorickshaw and attacked P.W2 with weapons. P.W2 fell downalong with his heavy luggage. P.W.5, however, managed toescape after receiving a few slaps at the hands of the accused.

The accused persons assaulted P.W.2 and robbed him off hisbelonging and decamped from there in the autorickshaw. P.W.2reached his uncle's house at Kasaragod from where he wasadmitted in the hospital for treatment for the injures which hehad sustained. In the test identification parade conducted on 23-11-1996 by P.W.12 the Magistrate, P.W.2 the complainant andP.W.5 his companion identified A1 to A4. During the course ofinvestigation the police were able to seize all the stolen articlesfrom the accused persons confirming their complicity in theoccurrence. 3. On the accused pleading not guilty to the charge Crl.R.P. 1146 of 2002-:3:-framed against him by the trial court for the aforementionedoffences, the prosecution was permitted to adduce evidence insupport of its case. The prosecution altogether examined 21witnesses as P.Ws 1 to 21 and got marked 21 documents as Exts.P1 to P21 and .material objects as MOs.

1 to 86.4.After the close of the prosecution evidence, theaccused was questioned under Sec. 313 (1)(b) Cr.P.C. with regardto the incriminating circumstances appearing against him in theevidence for the prosecution. He denied those circumstances andmaintained his innocence. He did not adduce any defenceevidence when called upon to do so. 5. The learned Assistant Sessions Judge, after trial, as perjudgment dated 28-08-1998 found all the accused guilty of theoffences and sentenced them to rigorous imprisonment for 7years and to pay fine of Rs. 15,000/- and on deafult to pay thefine to suffer simple imprisonment for one year. On appealprefeerred 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 perjudgment dated 11-12-2001 dismissed all the appeals confirmingthe conviction entered and the sentence passed on all theaccused persons.

Hence, this Revision by the petitioner who wasthe 4th accused. 6.I heard Advocate Lijy Antony appearing on State Brieffor the revision petitioner Advocate Sri. C.M. Nazar , the learnedPublic Prosecutor who defended the State. In support of hiscontention to confirm the conviction entered and the sentence Crl.R.P. 1146 of 2002-:4:-passed against the revision petitioner, the learned PublicProsecutor made the following submissions before me:-Apart from the fact that P.Ws 2 and 5 have given a credibleaccount of the occurrence, both of them have identified therevision petitioner/4th accused correctly during the testidentification parade conducted by P.W.12. Eventhough nospecific overt act had been attributed against A4 the recovery ofMO4 shirt pieces from the house of the revision petitioner at hisinstance confirms the fact that he was also in the gang of A1,A2and A3.8.I am afraid that I cannot agree with the abovesubmissions.

First of all, no specific overt acts had been allegedagainst the revision petitioner A4. It is true that he was correctlyidentified by P.Ws 2 and 5 in the test identification parade. Butthen it must be remembered that the defence had a contentionthat right from the beginning that after the arrest of the revisionpetitioner 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 bythe police. It has been suggested to the Investigating Officerthat in between the date of arrest of the accused on 20-10-1996and the T.I.P. on 23-11-1996 there had been many occasionsduring which photographs of the revision petitioner and theother accused had been shown to the witnesses. Identification ofa suspect during test identification parade does not come withinthe realm of substantive evidence. It can only amount tocorroborate the evidence if there is other evidence against theaccused.

Going by the occurrence as narrated by P.Ws 2 and 5 , Crl.R.P. 1146 of 2002-:5:-P.W.2 was sharing the drivers seat of the autorickshaw along withA3 and P.W.5 was sharing the back seat along with threeaccused. The time was 3.45 a.m. in a remote place at Peria. It istoo good to accept the testimony of P.Ws 2 and 5 to hold thatthere was sufficient light for them to identify any of the culprits. Ext.P7 scene mahazar does not mention the presence of anystreet light at the scene of occurrence. The testimony of P.Ws 2and 5 that they saw the assailants in moon light can be acceptedonly with a pinch of salt. In the first place, P.Ws 2 and 5 musthave been fully tired after their journey up to Peria. Thereafterthey had started walking from Peria towards their respectivehomes. P.W.5 having light luggage whereas P.W.2 had heavybaggage. If under these circumstances, they were to be offereda lift in an autorickshaw, chances are very remote that theymight have seen the co-passengers with sufficient interest as toidentify them later.

Until the autorickshaw stopped under thepretext that petrol had exhausted, it was a smooth ride andP.W2 and 5 had no reason to suspect anybody in theautorickshaw. It was only during the latter part of the occurrencethat the assailants suddenly got down the autorickshaw andassaulted P.Ws 2 and 5. P.W.2 at that time was carrying heavyluggage on his head and could not have been in a position to seethe assailants. Admittedly the four intruders were strangers toP.Ws 2 and 5 who had no previous acquaintance with them. Evengoing by the narrative of P.Ws 2 and 5 they had only a fleetingglimpse of the co-passengers and that too under very poor lightconditions. Hence it cannot be said that the identification of A1 Crl.R.P. 1146 of 2002-:6:-to A4 by P.Ws 2 and 5 is beyond reproach. 9. The only other material to connect the revisionpetitioner with the occurrence is the alleged recovery of shirtpiece by the investigating officer as per Ext.P11 mahazar.

P.W.10the witness to the said mahazar turned disloyal to theprosecution. The only other evidence was that of theinvestigating officer who was evidently forging a recovery under Sec. 27 of the Evidence Act to connect the revision petitioner withthe occurrence. On the materials before court, it cannot beconclusively held that the prosecution has succeeded inestablishing the guilt of the revision petitioner beyond reasonabledoubt. The conviction entered and the sentence passed againstthe revision petitioner overlooking these vital aspects of thematter cannot be sustained and are accordingly dislodged. The revision petitioner is found not guilty of the offencespunishable under Secs. 397 and 323 read with Sec. 34 I.P.C. andis acquitted thereunder. He is set at liberty. He shall be releasedfrom prison forthwith unless his continued detention is foundnecessary in connection with any other case against him. In the result, this Criminal R.P. is allowed as above. V. RAMKUMAR , (JUDGE)ani Crl.R.P. 1146 of 2002-:7:-V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *Crl. R.P. No. 1146 of 2007* * * * * * * * * * * * * * * * * * Dated: 03-09-2008ORDER