1. Accused Nos.1 and 2 in S.C. No.222/2006 on the files of the Additional Sessions Court (ADHOC)-II, Kalpetta, have filed this appeal, under Section 374 of the Code of Criminal Procedure, 1973 [hereinafter referred as ‘Cr.P.C.’ for short], challenging the conviction and sentence imposed by the Sessions Judge, against them as per the judgment dated 16.04.2008. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

2. Heard the learned counsel for the appellants and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Sessions Court.

3. Parties in this appeal shall be referred as ‘accused Nos.1 and 2’ and ‘prosecution’, hereafter.

4. The prosecution case is that, at about 9.45 a.m. on 07.01.2006, accused Nos.1 and 2 along with two others assaulted the defacto complainant by beating him with iron rode and wooden stick and caused hurt to him. The further allegation is that, the accused did so with the knowledge that the said act might cause death of the defacto complainant. On this premise, the prosecution alleges commission of offences punishable under Sections 452, 308 and 506(i) read with 34 of the Indian Penal Code [hereinafter referred as ‘IPC’ for short], by the accused.

5. After framing charge for the above said offences, the Sessions Court recorded evidence and completed trial. During trial, PWs 1 to 9 were examined, Exts.P1 to P6 and MOs 1 to 2 were marked on the side of the prosecution. Even though, the accused were given opportunity to adduce defence evidence after questioning them under Section 313(1)(b) of the Cr.P.C., they did not opt to adduce any defence evidence.

6. On appreciation of evidence, the Sessions Court found that the accused were guilty for the offences punishable under Sections 452, 324 and 506(i) read with 34 of the IPC. Accordingly, the accused were convicted for the said offences and sentenced as under:

                  “The accused are convicted and sentenced to undergo Simple Imprisonment for 3 (Three) months w/s. 452 r/w. Section 34 IPC, to pay fine of Rs. 5,000/-(Rupees Five Thousand only) each u/s. 324 r/w. Section 34 IPC and to pay fine of Rs. 1,000/- (Rupees One thousand only) each u/s. 506 (i) r/w. Section 34 IPC. In default of payment of fine they are to undergo Simple Imprisonment for 1 (One) month u/s. 324 IPC and for 2 (Two) weeks u/s. 506 (i) IPC. Period of remand it any is allowed to be set off towards period of sentence. Material objects 1 and 2 shall be destroyed after expiry of the period of appeal.”

7. While assailing the verdict impugned, the learned counsel for accused Nos.1 and 2 raised two valid contentions to unsustain the verdict. The first point argued is that, there is no proper identification of accused Nos.1 and 2 specifically by the witnesses. He has placed decision of this Court reported in Mohanan v. State of Kerala [2025 KHC OnLine 662 : 2025 KHC 662 : 2025 KLT OnLine 2205] with reference to paragraph No.16 to substantiate his contention. Paragraph No.16 reads as under:

                  “16. It is interesting to note that in order to fasten criminal culpability upon an accused, there must be identification of the accused with certainty. It is true that A1 is the father of A2 and according to PW2, they were familiar to each other since they worked in Kuttikkad Devi Temple committee. But on perusal of the evidence of PW2, it could not be found that PW2 identified the accused persons specifically, instead of PW2 identified A1, A2, A3 and A4 at the dock in common. When more than one accused involved in a crime, the victim or the occurrence witness must identify them specifically with certainty. That is to say, the identification must be by deposing the specific overt act/s done by the particular accused after pointing him at the dock specifically. Mere evidence given by the victim or witnesses stating that A1, A2, A3 etc., the accused at the dock, committed the offence is not proper way of identification. If the role of each accused is not specifically deposed by pointing a particular accused, the identification is insufficient to hold that the particular accused involved in this crime by doing particular overt acts. It is relevant to note that the identification of A1 to A4 as the assailants without specifically saying who had beaten on the legs and head of PW2, without identifying the accused by pointing him specifically at the dock, could not be sufficient to prove the identity of the accused. It is true that PW4 testified that he was so familiar with the 2nd accused when he witnessed the departure of the assailants in a car after the occurrence. But PW4 did not witness the occurrence. Then the crucial evidence of PW2 is relevant in the matter of identification of the assailants. PW2 did not identify accused Nos.1 and 2 or other accused specifically as already observed. Thus in the instant case, though the ingredients to attract the offences under Sections 326 and 308 of IPC could be gathered, the identity of accused Nos.1 and 2 not established so as to fasten the criminal culpability upon them. It is interesting to note that the other accused, who involved in the incident and who caused fracture to both bones of PW2, were acquitted while convicting accused Nos.1 and 2 alone, though their complicity in the matter is much lesser than the other accused, where offences under Sections 143 and 149 of IPC could not be found. Since the identity of accused Nos.1 and 2 was not established to hold that he had committed the offences, conviction for offences punishable under Sections 326 and 308 of IPC also would not stand in the eye of law. In such view of the matter, the verdict under challenge would require interference.”

8. The learned counsel for accused Nos.1 and 2 also read out the depositions of PW2, the injured witness, PW3, the mother of PW2 as well as the cousin brother, who reached the place of occurrence, examined as PW4 to substantiate the said point.

9. The second point argued by the learned counsel for accused Nos.1 and 2 is that, MO1 and MO2 weapons alleged to be used for assaulting PW2 were failed to be recovered from the house by the Investigating Officer on the date of preparation of Ext.P3 mahazar as on 08.01.2006, later produced by PW2 after nine days of the occurrence (possibly on 16.01.2006) and the same were recovered as per Ext.P3 mahazar. Therefore, the production of MO1 and MO2 by PW2 after failure on the part of the Investigating Officer to locate the same while preparing Ext.P3 mahazar, is in the midst of doubt. Accordingly, the learned counsel for accused Nos.1 and 2 pressed for interference in the verdict impugned.

10. Repelling the contentions raised by the learned counsel for accused Nos.1 and 2, the learned Public Prosecutor submitted that, going by the evidence of PW2, supported by the evidence of PW3 and PW4, identification of the accused could be found. Therefore, the challenge against the identification of the accused would not stand.

11. The learned Public Prosecutor submitted further that, merely because production of MO1 and MO2 was at a later point of time, the same would not efface the prosecution case, since recovery of weapon is not at all mandatory to fasten criminal culpability on the accused and even without recovery of weapon, conviction and sentence can safely be imposed on the accused relying on other evidence found to be wholly reliable. Therefore, the impugned verdict does not require any interference.

12. In view of the rival submissions, the points arise for consideration are:

                  1. Whether the Sessions Court is justified in finding that accused Nos.1 and 2 committed the offence punishable under Section 452 read with 34 of the IPC?

                  2. Whether the Sessions Court is justified in finding that accused Nos.1 and 2 committed the offence punishable under Section 324 read with 34 of the IPC?

                  3. Whether the Sessions Court is justified in finding that accused Nos.1 and 2 committed the offence punishable under Section 506(i) read with 34 of the IPC?

                  4. Whether the verdict of the Sessions Court would require interference?

                  5. Order to be passed?

13. Point Nos.1 to 3:- In this matter, PW2 is the injured witness and according to him, he had been residing at Mangod, Vellamunda and he sustained injuries in this occurrence and the same was at about 9.45 a.m. on 07.01.2006, while he was engaged in reading at his room. During the occurrence, he had been studying for B.A. first year at Government College, Mananthavadi. According to him, he heard a call from the outside and he came outside on the varanda, an unknown person caught hold on his face. Then the accused uttered that, they belong to XXX party (real name not stated) and threatened PW2 that, “if you mess with us, we would finish you off”. Thereafter, Nurshad, the 1st accused and Ashraf, the 2nd accused beat him by using an iron rod and wooden stick and PW2 ran away to avoid the attack. He also deposed that, if he would not have escaped, he could have sustained grievous injuries. PW2 also deposed about the witnessing of this occurrence by PW3 and PW4. PW2 further deposed that, Nurshad beat him by using an iron rod and Ashraf beat him by using a wooden stick. He also identified MO1 and MO2 weapons.

14. Going through the evidence of PW2 regarding identification of the accused, though PW2 named them with specific overt acts, he did not identify them at the dock by pointing them individually.

15. PW3 also supported the prosecution case regarding the occurrence stating that one person among the accused beat PW2 by using an iron road and other beat him by using a wooden stick. According to her, PW2 was beaten by accused Nos.1 and 2 herein. But, PW3 also did not identify the accused specifically pointing out them at the dock.

16. Coming to the evidence of PW4, he had supported the prosecution case as to the occurrence in similar terms as deposed by PW2 and PW3. He also deposed that accused Nos.1 and 2 as the persons, who beat PW2, though he also did not specifically identify the accused.

17. It is the settled law as per the ratio laid down in Mohanan’s case (supra) that, in order to fasten criminal culpability upon an accused, there must be identification of the accused with certainty. When more than one accused involved in a crime, the victim or the occurrence witness must identify them specifically with certainty. That is to say, the identification must be by deposing the specific overt act/s done by the particular accused after pointing him at the dock specifically. Mere evidence given by the victim or witnesses stating that A1, A2, A3 etc., the accused at the dock, committed the offence is not proper way of identification. If the role of each accused is not specifically deposed by pointing a particular accused, the identification is insufficient to hold that the particular accused involved in this crime by doing particular overt acts.

18. In this case, the identification of accused Nos.1 and 2 by the witnesses by deposing the specific overt act/s done by them after pointing them at the dock specifically, could not be found. Thus, in the instant case, the identity of accused Nos.1 and 2 not established so as to fasten the criminal culpability upon them. Therefore, as argued by the learned counsel for accused Nos.1 and 2, the doubt regarding identity of the accused as the assailants to be adjudged in favour of accused Nos.1 and 2. If so, accused Nos.1 and 2 are entitled to get the benefit of doubt.

19. The point secondly argued by the learned counsel for accused Nos.1 and 2 is concerned, as deposed by PW2, MO1 and MO2 were produced by PW2, after nine days from the date of occurrence, without producing the same before PW9, the Investigating Officer on the date of preparation of Ext.P3 mahazar and the same would make the recovery of MO1 and MO2 in the midst of doubt to render the prosecution case doubtful. Thus, again benefit of doubt emerges in the matter of delayed production of MO1 and MO2 by the complainant (PW2) and also the manner in which the same were produced.

20. Since the identity of accused Nos.1 and 2 as the assailants not established satisfactorily, the prosecution case is in the midst of doubts, as discussed. Thus, benefit of doubt shall go in favour of accused Nos.1 and 2/appellants herein. In the said circumstances, it is unsafe to hold that the prosecution succeeded in establishing that accused Nos.1 and 2 had committed the offences alleged, beyond reasonable doubt. Therefore, the conviction and sentence imposed upon them, on finding commission of offences punishable under Sections 452, 324 and 506(i) of IPC also would not stand in the eye of law.

21. Point Nos.4 and 5:- In the result, the appeal is allowed. The conviction and sentence imposed upon accused Nos.1 and 2 stand set aside and they are set at liberty, forthwith, after canceling their bail bonds.

Registry is directed to forward a copy of this judgment to the trial court, forthwith, for information.