KARUPPA VALAYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The third accused, who is the appellant in this appeal, and accused 1 & 2 have been convicted by the Sessions Judge at Palghat, for offences under S.395 read with S.397 of the Indian Penal Code. Accused 1&2 have not preferred any appeal. The third accused has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 100/-. The case against the accused is, that at about 9 P. M. on the 12th October, 1958, they and two others not identified, committed dacoity in the house of Pw. 1 and caused hurt to him and his wife, Pw. 3. The third accused was said to have caused hurt to Pw. 2, by cutting him with a chopper and by beating him. Pws. 1 to 3 were removed to the hospital on the next morning and Pw. 1 gave the first information of the occurrence at 11.15 A. M. on that day. After the case was registered, the Police Inspector arrested the accused on the 22nd October, 1958, - when they were found hiding in a forest. It is the prosecution case, that some weapons and some of the stolen properties were recovered from them at the time of their arrest, and some more property was recovered afterwards, on the same day, pursuant to information furnished by them. The Assistant Sessions Judge, believing Pws. 1 to 3 and acting upon the evidence as to the recovery of the stolen articles, came to the conclusion, that the case was proved as against the three accused, and accordingly entered the conviction.

(2.) The evidence as against the third accused consists of only the testimony of Pws. 1 to 3 and the alleged recovery of some of the stolen articles. It would appear, that there was an identification parade before the Magistrate on the 17th December, 1958, at which, the third accused was identified only by Pw. 1, and not by Pws. 2 & 3. The identification of the accused by Pws. 2 & 3 in court, is of very little value, and their evidence as against this accused has to be discarded on that ground. The prosecution is therefore left with the testimony of Pw. 1, who stated in his evidence before the Sessions Court, that after be was attacked by accused 1 and 2, he fell down, and could not see clearly what happened afterwards. He admitted, that the third accused had come to the scene only after he had fallen. It is unsafe therefore to act upon the identification of this accused by Pw. 1 in court, and also before the Magistrate, at the time of the identification parade.

(3.) Admittedly, at the time of the arrest, only the knife, M. O.16, had been recovered from this accused. It was not proved by the prosecution, that this weapon had been used by him or by any one of the offenders or participants in the crime at the time of the dacoity. The recovery of M.O. 16 is inconsequential.