Jafar vs State Of Kerala

2024 INSC 207 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1607 OF 2009

JAFAR … APPELLANT(S) VERSUS

STATE OF KERALA …RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. This appeal challenges the judgment and order dated

16.01.2009 passed by the learned Single Judge of the High

Court of Kerala at Ernakulam in Criminal Appeal No. 643 of

2008 thereby dismissing the appeal filed by the appellant

herein and confirming the conviction as recorded by the

Court of Addl. Sessions Judge (Adhoc-II), Ernakulam (for

short, ‘trial court’) for the offence punishable under Section

397 read with Section 395 of the Indian Penal Code, 1860

(for short, ‘IPC’) and sentencing him to undergo rigorous

imprisonment for seven years, with a fine of Rs.10,000/-; in Signature Not Verified Digitally signed by Deepak Singh default of payment of fine, to suffer simple imprisonment for Date: 2024.03.15 17:24:07 IST Reason:

a period of three months.

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2. The case of the prosecution in brief is that, on

14.05.2004 at about 1:45 a.m., accused Nos.1 to 8 came in a

vehicle bearing registration number KL 4/C 6021 driven by

accused No.8 to the building at Perumbavoor, where the

retail shops of Kerala State Beverages Corporation were

situated in three rooms bearing Door Nos.17/1221, 1222 and

1223, with the intention to commit dacoity. According to the

prosecution, accused Nos.1 to 4, 6 and 7 armed with deadly

weapons like iron lever and wooden bar, entered into the

room No.17/1238. At the said gate, the security guard (PW-

1) was posted. The appellant herein (accused No.2) kicked on

the naval portion of PW-1. Sijo @ Fijo (accused No.4) beat

him with an iron lever on the right leg, which resulted in

fracture. Accused Nos.1 to 3 beat him with the wooden bar

on various parts of his body. Thereafter, the accused persons

tied the legs and hands of PW-1 with bath towels and made

him lie on the cot. Following which, they fastened his body

on the cot with a piece of bed sheet and the remaining piece

of the bed sheet was pushed into his mouth and they

manhandled him. Thereafter, they committed robbery of

mobile phone, wrist watch and torch belonging to PW-1.

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2.1 It is also the prosecution case that they destroyed the

light in the building and lock of the shutters of the retail

shop of the corporation. On the basis of said allegation,

Crime No.345/2004 came to be registered in the

Perumbavoor Police Station for the offence punishable under

Section 397 of the IPC.

2.2 Upon completion of the investigation, a final report was

filed in the Court of Judicial Magistrate First Class,

Perumbavoor upon which the Court took cognizance and

instituted C.P. No.89/2005. As the accused No.1 was

absconding, the case against him was split up and refiled in

the committal court. Insofar as accused Nos.3 and 6 are

concerned, since they were minors, charge-sheet against

them was filed in the Juvenile Court. The case against

accused Nos.2, 4, 5, 7 and 8 in the original charge-sheet was

committed to the Court of Sessions, Ernakulam wherein

S.C.No.723/2005 was instituted. Before the learned trial

court, the accused were re-arrayed as accused Nos. 1 to 5.

The charges came to be framed for offences punishable under

Section 397 read with Section 395 of the IPC and the

accused pleaded not guilty. Thereafter, the accused Nos.1

3 and 4 absconded and hence trial was proceeded only against

accused Nos. 2, 3 and 5. The trial court only found accused

Nos.2 and 3 guilty and as such convicted them as aforesaid.

Insofar as accused No. 5 is concerned, he was acquitted.

3. We have heard Mr. T.N. Singh, learned counsel for the

appellant and Mr. Harshad V. Hameed, learned counsel for

the respondent/State.

4. Learned counsel for the appellant submits that the

conviction is based on no evidence and as such, the appeal

deserves to be allowed. As against this, learned counsel for

the respondent/State submits that both the Courts have

concurrently, upon appreciation of the evidence, found the

appellant to be guilty and as such, no interference would be

warranted.

5. With the assistance of the learned counsel for the

parties, we have scrutinized the evidence. The conviction of

the appellant herein is basically based on the deposition of

Babu Puttan (PW-1), who was working as a security guard

and was sitting in a chair in front of the said room. No doubt

that he narrates the version, as per the prosecution case. He

has also identified accused No.2-Jafar, appellant herein and

4 accused no.3-Saneesh in the Court. However, he has clearly

admitted that police had shown him these two people and as

such, he has identified them.

6. Anil Kumar (PW-8), who is the Investigating Officer (IO),

has also admitted that PW-1 identified the accused persons

by seeing them at the police station. He has further admitted

that no identification parade was conducted. As such, it can

be seen that the identification of the appellant herein by PW-

1 is quite doubtful as no identification parade has been

conducted. PW-1 clearly states that he has identified the

accused persons since the police had shown him those two

people.

7. In the absence of proper identification parade being

conducted, the identification for the first time in the Court

cannot be said to be free from doubt. We find that the other

circumstance that the Courts relied for resting the order of

conviction is with regard to the recovery of an iron rod. An

iron rod is an article which could be found anywhere. It is

not the case of the prosecution that any stolen article was

recovered from the appellant herein.

8. In the result, we find that the judgment and order

5 passed by the High Court dismissing the appeal and of the

trial court convicting the appellant are not sustainable in

law.

9. The appeal is therefore allowed. The judgment and

order of the trial court convicting the appellant herein and

that of the High Court affirming the same are quashed and

set aside.

10. The appellant herein is acquitted of all the charges

charged with. Since the appellant is on bail, his bail bonds

shall stand discharged.

11. Pending application(s), if any, shall stand disposed of.

..............................J. (B.R. GAVAI)

..............................J. (SANDEEP MEHTA)

NEW DELHI;

MARCH 15, 2024

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