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Kanan and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Case NumberCriminal Appeal No. 245 of 1973
Judge
Reported inAIR1979SC1127; 1979CriLJ919; (1979)3SCC319
ActsEvidence Act - Sections 9; Indian Penal Code (IPC) - Sections 120-B, 147, 148 and 308
AppellantKanan and ors.
RespondentState of Kerala
Excerpt:
.....to appellant held, conviction of appellant for murder is liable to be altered to section 325. moreover, section 34 could not have been applied when no charge was framed thereunder. - finally the witness has clearly admitted that he knew these two appellants by face and yet named them while identifying them to court. it is well settled that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous t. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court. 27, we find it difficult to accept this evidence which is a very weak type of evidence and has been made to p......the accused was that they had entered into a conspiracy as members of nexalite party to raid the police station kutttadi on the night/morning of the 17th/l8th december, 1969. in the course of the raid the polios station was attacked and its articles were burnt. no member of the police station or staff was able to identify the raiders. the only evidence on the basis of which the appellants have been convicted may be categorised as follows:1. evidence of p. w9. 17 and 18 to the effect that there was conspiracy to raid the police station in question in which the appellants have participated; 2. the evidence of p.w. 25 who identified the appellants running away near the scene of occurrence after the raid took place on the police station,3. the extra-judicial confession of appellant payichi.....
Judgment:

S. Murtaza Fazal Ali, J.

1. This appeal by special leave is directed against a judgment of the Kerala High Court upholding the conviction and sentence passed on the appellants. The appellants were convicted under Section 120-B read with Section 308 and sentenced to eight years R.I. They were also convicted under Sections 147 and 148 and other offenees. The charge against the accused was that they had entered into a conspiracy as members of nexalite party to raid the Police Station Kutttadi on the night/morning of the 17th/l8th December, 1969. In the course of the raid the polios station was attacked and its articles were burnt. No member of the Police Station or staff was able to Identify the raiders. The only evidence on the basis of which the appellants have been convicted may be categorised as follows:

1. Evidence of P. W9. 17 and 18 to the effect that there was conspiracy to raid the Police Station In question in which the appellants have participated;

2. The evidence of P.W. 25 who Identified the appellants running away near the scene of occurrence after the raid took place on the Police Station,

3. The extra-judicial confession of appellant Payichi (accused No. 5) to P.W. 27 widow of Velayudhan who died In the course of the occurrence. This is all the evidence on the basis of which the appellants have been convicted. We have gone through the evidence of all these witnesses and we are unable to agree with the High Court that there was any legal evidence to support the conviction of all the appellants. So far as P.W. 25 is concerned, his evidence is full of serious infirmities. To begin with, he had come to the village in question in order to consult a dentist which was the only occasion for his presence In the village. As there was no accommodation in the travelling bungalow, he persuaded the Chowkidar to let him stay in his room. The evidence of P.W. 25 is that he consulted Dr. Sabestian and got his tooth extracted. Neither Dr. Sabestian was examined by the prosecution nor was any register produced to show that the witness had actually got himself examined by the doctor. This serious omission raises a serious doubt about the very presence of P.W. 25 on the night of the occurrence. Secondly, P.W. 25 says that he heard an explosion, and if this was so, as he was ill, his first Impulse and natural conduct would be to remain confined in the room rather than to go out to look as to what was happening around and invite danger. At any rate, the witness only identified the appellant Kanan and M, P. Valuyudhan as persons who were running away near the place of occurrence. The witness, however, did not say that he saw these appellants either entering the Police Station and attack-fag it or coming out from the Police Station with explosives or arms. There was a hugs crowed after the Police Station was attacked and if these two appellants were seen running away that by itself would not show that they had taken part in the raid. Finally the witness has clearly admitted that he knew these two appellants by face and yet named them while identifying them to Court. It is not understandable as to how the witness gave the names of the appellants when he knew them only by face which indicates that names of the accused must have been supplied by someone else and this introduces an element of doubt in his testimony. Both the Trial Court and the High Court have found that the mere fact that no T. I. parade was held would not destroy the evidence of P.W. 25. With due respect, we feel that the High Court erred in law in taking this view. It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence Is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T. I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T. I. parade and get the identification made before the witness was called upon to identify the appellant in the court. On this ground alone, the testimony of P.W. 25 becomes unworthy of credence and must be excluded from consideration. In this view of the matter, even if the evidence of P. Ws. 17 and 18 regarding the participation of the accused In conspiracy to raid the Police Station be accepted the evidence being of very vague nature, the appellant cannot be convicted because there is no evidence to show that the appellants were members of that conspiracy. Apart from this P.Ws. 17 and 18 named Piyachi as being the person in the meeting where it was decided to raid the Police Station. From the evidence of these witnesses It appears that they were also co-conspiratOrs. In the circumstances, the evidence of these witnesses was that of an accomplice and could not be accepted without further corroboration.

2. Coming to the extra-judicial confession of Piyachi before P.W. 27, we find it difficult to accept this evidence which is a very weak type of evidence and has been made to P.W. 27 who was the widow of one of the conspirators and was helping her husband in making spears and other weapons. For these reasons, therefore, we are unable to rely on the evidence furnished by the extra-judicial confession. Thus the position is, that there is absolutely no legal evidence on the basis of which the appellants could be convicted. The result is that the appeal is allowed, judgment of the High Court is set aside and the appellants are acquitted of the charges framed against them. The appellants are directed to be released forthwith unless released on bail already.


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