Murugan and Nagarajan Vs State

@JUDGMENTTAG-ORDER

S. Palanivelu, J.@mdashThese criminal revisions have been filed to set aside the Judgment passed by the Additional Sessions Judge, Fast Track Court No. II, Tirunelveli, Tirunelveli District, in C.A. Nos. 160 and 171 of 2003, dated 10.02.2005 in confirming the conviction passed in S.C. No. 421 of 2002 dated 29.08.2003, by the Assistant Sessions Judge, Ambasamudram, Tirunelveli District.

2. The following are the prosecution details shorn off unnecessary details:

2 (i). P.W.1 laid a complaint with the Pappakudi Police Station under Ex.P1 stating that on 29.05.2002 while he was proceeding to his relative''s house along with his brother-in-law Esakki at about 8.30 p.m. in his TVS Champ moped bearing Registration No. TN-72-X-1388, along Puthupatti-Pappakudi road towards Thulukkapatti, at about 9.30 p.m. on the north of Odaikarai Thulukkapatti a place known as Vandikidangu, on the east of the road three persons were standing, among whom, two were holding aruval in their hands and one person possessed a stout stick, that they intercepted the vehicle and on seeing them P.W.1 fell down with the vehicle, that the person who was having torch light and aruval showed the same and asked him to give whatever he was having, otherwise, he would behead him, that another person who was having a stout stick in his hand snatched Rs. 1,250/- in cash, which was kept by P.W.1 in his pocket, and the first person relieved P.W.1 of a gold minor chain weighing 12 grams from the neck of P.W.1 and a bracelet that P.W.1 was wearing in his right hand weighing 22 grams and the third person who was having aruval in his hand removed his gold ring weighing 7 grams and also a citizen watch which P.W.1 tied on his left hand and they did not harm Esakki since he did not have anything and fled away from the scene of occurrence after saying that if they divulged the incident to anybody else, they would do away with both P.W.1 and his brother-in-law, that they left the place after seeing the headlights of the mini lorry, that P.W.1 did not know the identity of the persons, that the driver of the mini lorry Karunanithi was informed about the occurrence by P.W.1 and all the three of them came to Odaikarai Thulukkapatti and took some of the villagers to the occurrence place and searched the miscreants but in vain, and that P.W.1 lodged a complaint on 30.05.2002 at 10.00 a.m. before the Pappakudi Police Station since he went to Tirunelveli Railway Station to cancel the ticket reserved by him for the journey in the morning of 30.05.2002.

2 (ii). On receipt of the complaint, P.W.9 Sub Inspector of Police, registered a case in Crime No. 32 of 2002 u/s 397 IPC, lodged First Information Report Ex.P13 and sent the First Information Report to the Judicial Magistrate, Cheranmadevi. After receiving FIR, the Inspector of Police P.W.10 proceeded to the scene of crime, prepared observation mahazar Ex.P2 and drew rough site plan Ex.P14 with respect to the scene of crime. He recorded statements of the witnesses. On 30.05.2002 at 16.00 hours P.W.10 arrested all the three accused at Alangulam-Tirunelveli main road near Nallur diversion, who came in a TVS Moped bearing Registration No. TN-72-B-5383, in the presence of one Athimoolam and Esakki. They voluntarily gave confession statement separately. The first accused produced a gold bracelet, gold ring, gold minor chain, and also a cash of Rs. 1,250 and citizen watch. They are M.Os 1 to 6. Ex.P15 and Ex.P17 are the admissible portions in the confession statement given by the second and first accused respectively. Ex.P16 and 18 are the mahazars for seizure of the material objects above said.

2 (iii). The accused were sent for Judicial custody under remand report Ex.P19. The case properties were also sent to the Court under Form No. 95. P.W.1 was summoned to the police station on 01.06.2002 and identified the properties belonging to him. Since P.W.10 got transfer, his next incumbent P.W.11 after perusal of the records, filed charge-sheet against the accused on 30.06.2002.

2 (iv). When the accused were questioned u/s 313 Code of Criminal Procedure as regards the incriminating materials available against them in the prosecution evidence, they denied the complicity in the offence. They say that false case has been foisted against them. They did not examine any witness and had not produced any document.

3. The following is the point for consideration:

Whether the charges framed against the accused have been proved by the prosecution beyond reasonable doubt.

4. Point: P.W.1 has described about the occurrence in his complaint and in his oral evidence. P.W.2 who accompanied him at the time of occurrence supported his version. As far as the facts of the present case are concerned, in order to bring home the guilt of the accused, the prosecution is bound to establish the identity of the accused as well as the recovery of the material objects from them. As far as the first aspect is concerned, it is admitted in the complaint and evidence of P.W.1 that they were not seen by him and that he could not identify all of them as it was night time. The occurrence is stated to have taken place in a road and naturally, the lights of the vehicles might be there. But it was not spoken by P.Ws.1 and 2 nor had it been mentioned in the complaint. It has been specifically mentioned by P.W.1 that he could not identify the accused. In such circumstances, it is the duty cast upon the prosecuting agency to take initiatives to have the identification of the accused by holding test identification parade. In this case, it was not done.

5. If the witnesses knew the accused earlier to the occurrence, there need not be test identification parade. But when the accused were not at all known or the witnesses who were not aware of their identity, then, test identification parade is essential.

6. Mr. V. Kathirvelu, learned Counsel appearing for the accused would place strong reliance upon a decision of the Hon''ble Supreme Court reported in 2002 SCC 1698 (Dana Yadav alias Dahu and Ors. v. State of Bihar), wherein the Apex Court has formulated the principles in the matter of holding of test identification parade for the purpose of unearthing the truth, after referring to earlier decisions of the Hon''ble Supreme Court. The operative portions of the judgment with the relevant citations are as follows:

5. 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. This Court has dealt with this question on several occasions. In the case of Vaikuntam Chandrappa and Others Vs. State of Andhra Pradesh, which is a three-Judge Bench decision of this Court, Wanchoo, J., with whom A.K. Sarkar and K. Subba Rao, JJ. agreed, speaking for the Court, observed that the substantive evidence of a witness is his statement in court but the purpose of test identification is to test that evidence and 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 law laid down in the aforesaid decision has been reiterated in the cases of Budhsen and Another Vs. State of U.P., , Sheikh Hasib alias Tabarak Vs. The State of Bihar, , Bollavaram Pedda Narsi Reddy and others Vs. State of Andhra Pradesh, , Ronny @ Ronald James Alwaris Etc. Vs. State Of Maharashtra, and Rajesh Govind Jagesha Vs. State of Maharashtra, . It is well settled that identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits. Reference in this connection may be made to the decisions of this Court in the cases of Rameshwar Singh Vs. State of Jammu and Kashmir, and Ravindra @ Ravi Bansi Gohar Vs. The State of Maharashtra and Others, .

7. Their Lordships have also held that if a witness identifies the accused in the Court for the first time, the probative value of such uncorroborated evidence of the witness 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 and the Supreme Court has referred the following decisions to fortify its view:

1. Kanta Prashad Vs. Delhi Administration, ,

2. Vaikuntam Chandrappa and Others Vs. State of Andhra Pradesh, ,

3. Budhsen and Another Vs. State of U.P., ,

4. Kanan and Others Vs. State of Kerala, ,

5. Mohanlal Gangaram Gehani Vs. State of Maharashtra, ,

6. Bollavaram Pedda Narsi Reddy and others Vs. State of Andhra Pradesh, ,

7. State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, ,

8. Jaspal Singh alias Pali and others Vs. State of Punjab, ,

9. Raju alias Rajendra Vs. State of Maharashtra, ,

10. Ronny @ Ronald James Alwaris Etc. Vs. State Of Maharashtra, ,

11. George and Others Vs. State of Kerala and Another, ,

12. Rajesh Govind Jagesha Vs. State of Maharashtra, ,

13. State of Himachal Pradesh Vs. Lekh Raj and Another,

14. Raman Bhai Naran Bhai Patel and Others Vs. State of Gujarat, .

8. In view of the above said illuminating judicial pronouncements on this subject, it has to be held that failure on the part of the prosecution to arrange for holding test identification parade is fatal. When the identity of the accused is not known, no question of recording of conviction against them would arise.

9. Insofar as the recovery of the material objects portion of the case is concerned, there is no iota of evidence to hold that the recovery is proved. P.Ws.7 and 8 are stated to have been present at the time of the arrest of the accused, who are alleged to have attested the confession statement and the seizure mahazars. But, they did not speak about the above said aspects. P.W.7, while he was examined on 08.04.2003 stated about his attestation to observation mahazar. He had not disclosed anything with regard to the arrest in the confession statement and mahazars. He was again recalled by the prosecution on 31.05.2003. He has not stated anything about the arrest and confession statement nor the recovery of material objects. He has admitted the signatures as Ex.P9 to Ex.P12 in the confession statements and mahazars. He has added that he saw certain currency notes, bracelet, minor chain, watch and ring, but not about their recovery. He was not treated as hostile evidence and was not examined in cross by the prosecution.

10. In the cross-examination, P.W.7 has stated that in the police jeep three persons were sitting, that he did not know who they were, that after showing some articles and they got his signatures in the papers which were written already, that the articles were in the possession of the police and that he did not see from whom they were recovered.

11. P.W.8 has also not supported the prosecution. He has admitted his signature alone in the confession statement and Athatchi as Ex.P5 to Ex.P7. He was treated as hostile witness and examined by the prosecution. The evidence of P.Ws.7 and 8 do not in any way support nor establish the case of the prosecution. The recovery of the material objects has not been proved by their examination. In this circumstance, there is no ground to see the nexus on the accused with the material objects. Consequently, the accused are not connected to the alleged crime.

12. In view of the above said discussion, I am of the considered view that the prosecution has woefully failed to bring home the guilt of the accused beyond all reasonable doubt. The findings recorded by the Courts below are not sustainable in view of the legal position holding the field as regards the conduct of test identification parade. When there is no material on record to connect the accused with the crime, there can be no conviction and sentence upon the accused. The judgment challenged before this Court is liable to be set aside and accordingly it is set aside.

13. P.W.1 has identified the material objects, namely, the jewels and the citizen watch reportedly snatched from him by the accused. He has also deposed to that effect. Even if the recovery of the material objects stands unproved, still in the absence of any claim on the part of the accused, that they are of their own a direction shall be issued to return the articles to P.W.1.

In the result, both the criminal revision petitions are allowed. The revision petitioners are directed to be released forthwith if they are not required in connection with any other case. The material objects excepting M.O. 7 shall be returned to the P.W.1 and if he had already taken custody of the properties, he may retain them.