1. The appellants are accused Nos. 4 to 6 and they are challenging the conviction and sentence imposed on them for the offences under Sections 452, 382, and 395 r/w 34 IPC as per common judgment dated 08.05.2007 in S.C. Nos. 181 of 2004 and 664 of 2005 on the file of the Additional District and Sessions Judge, (Fast Track Court-I), Thiruvananthapuram.

2. As per the prosecution case, on 15.11.2001, at about 9 p.m., accused Nos. 1 to 6, in furtherance of their common intention to commit robbery, trespassed into the house of the de facto complainant, armed with dangerous weapons and the second accused threatened to cause the death of PWs 1 and 2 by pointing a dagger and the third accused threatened PWs 1 and 2 by pointing a sword and the accused persons committed theft of gold ornaments, wrist watches, camera, mobile phone, torch, cordless phone, stereos, VCP and currency notes. It is alleged that the second accused robbed the thali chain of PW2 weighing 4 1⁄2 sovereigns and also ear rings weighing half sovereign. The accused persons also committed theft of currency notes worth Rs.50,000/- kept in the drawer of the almirah and they are alleged to have committed theft of articles and currency notes together worth Rs.1,24,800/- and thereafter, entrusted the gold ornaments to accused Nos. 7 and 8 and thereby, committed the offences as aforesaid.

3. When the case as against accused Nos. 4, 5 and 6 were committed to the Sessions Court, the same was taken on file as S.C. No. 181 of 2004 and when the case as against the first accused was committed to the Sessions Court, the same was taken on file as S.C. No. 664 of 2005. The trial court clubbed both the cases and charge was framed against accused Nos. 1 and 4 to 6 and they pleaded not guilty to the charge. Subsequently, the first accused absconded and the trial court decided to proceed with the trial of accused Nos.4 to 6.

4. From the side of the prosecution, PWs 1 to 17 were examined and Exhibits P1 to P13 and MOs I to V were marked. No evidence adduced from the side of the defence.

5. After trial and hearing both sides, the trial court found accused Nos. 4 to 6 guilty under Sections 452, 382 and 395 r/w 34 IPC and they are sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo rigorous imprisonment for three months each under Section 452 IPC. For the offence under Section 382 IPC, they are sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.3,000/- each and in default of payment of fine, to undergo rigorous imprisonment for four months each. For the offence under Section 395 IPC, they are sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year each.

6. During the pendency of the appeal, the first appellant/4th accused died and in spite of notice, none of his legal heirs turned up to file impleading petition.

7. Heard Sri. Paul Baby, the learned counsel representing the learned counsel for the appellants and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the State.

8. The learned counsel for the appellants argued that the evidence of PWs 1 and 2 regarding the occurrence and identity of accused Nos. 4 to 6 are not at all reliable and apart from the evidence of PWs 1 and 2, there is no other legally admissible evidence against the appellants. It is pointed out that no recovery is effected on the basis of the disclosure statement of accused Nos. 4, 5 and 6 and the recovery effected on the basis of the disclosure statement of accused No.7 cannot be used against the appellants. It is argued that there is suppression of material facts and the prosecution has not succeeded in removing the suspicious circumstances regarding the presence of the police officers at the place of occurrence several hours before the registration of the crime.

9. PW1 deposed that on 15.11.2001, at 9 p.m., 5 persons trespassed into the hall room of the house and one among them threatened him with a dagger and another person cut the telephone cable with a sword and the other three persons collected the articles from the bed room. He also deposed that one of the accused threatened his wife by pointing a dagger and collected the gold ornaments worn by her. PW1 deposed that accused Nos.4, 5 and 6 were among the 5 persons trespassed into his house. PW1 also deposed that the absconding first accused is known to him; but, he would say that the first accused was not among the persons who trespassed into his house and that the first accused is not his relative.

10. PW2 is the wife of PW1 and she also deposed that accused Nos. 4, 5 and 6 were among the five persons trespassed into their house. According to PW2, she had occasion to see the first accused. But, she would say that the first accused is not her relative.

11. Exhibit P1, First Information Statement, is given by PW1 on 16.11.2001. The learned counsel for the appellants pointed out that there is nothing in Exhibit P1 to indicate in which place and at what time, the same was recorded by PW10, Sub Inspector of Mangalapuram Police Station. Column No.3 of Exhibit P1(a) FIR would show that information was received in the Police Station on 16.11.2001 at 9 hours.

12. In cross examination, PW10, Sub Inspector who registered Exhibit P1(a) FIR stated that he has not conducted any investigation and that the investigation was conducted by Circle Inspector, Sanal Kumar. He also deposed that he was not present when the dog squad and finger print expert reached the place of occurrence. In another part of the cross examination, PW10 deposed that he was in the Police Station till 8.30 p.m., on 15.11.2001 and on the next day morning at 8 hours, he went for duty and he has not received any information regarding the occurrence during the intervening period.

13. In cross examination, PW1 stated that one James Joseph was residing in the up-stair portion of his house on rent. The evidence of PW1 in cross examination shows that the said James Joseph was working as Manager in State Bank of Travancore and he was residing there with his family. PW1 admitted in cross examination that James Joseph and his family reached his house after the occurrence. The evidence of PW1 further shows that at about 1 a.m., two Police Constables from Mangalapuram Police Station reached his house and he told the entire incident to the said Police Constables.

14. In cross examination, PW1 also stated that on the next day, in between 7 and 8 a.m., Sub Inspector—Pramod, Circle Inspector—Sanal and Dy.S.P., Attingal reached his house and he told them about the entire occurrence on the previous day. In cross examination, PW1 admitted that the persons who trespassed into his house on 15.11.2001 were not previously known to him and that he has no acquaintance with accused Nos. 4 to 6 prior to the occurrence. The evidence of PW1 shows that police dog and finger print expert reached his house at about 8 a.m., on the next day and he saw the finger print expert collecting finger prints from the almirah. However, he would say that he is not sure whether any finger print was traced out. According to PW1, the brother of his wife reached his house on the next day morning and he discussed the matter with him before giving Exhibit P1, First Information Statement, to the police.

15. In cross examination, PW1 admitted that three of his elder brothers were working abroad; but, he denied the suggestion that he collected money from several persons by offering to arrange them visa for working abroad. PW1 also denied the suggestion that several persons were having enmity towards him for the reason that he failed to arrange the visa as promised. PW1 denied the suggestion that some of the persons from whom he collected money by offering visa, reached his house at the time of the alleged occurrence and created problems demanding money. He also denied the suggestion that he created a false story of robbery with the ulterior motive to escape from the persons who demanded back the money.

16. The evidence of PW2 in cross examination shows that the tenant residing in the up-stair portion of the house reached there 10 minutes after the occurrence. In this case, accused Nos. 4 and 5 were arrested on 07.07.2002 and the 6th accused was arrested 07.08.2002. The evidence of PW14, Circle Inspector, shows that MOs I, III and IV, were recovered on the basis of the disclosure statement of the 7th accused and the prosecution has no case that any material object is recovered on the basis of the disclosure statement of the appellants herein.

17. It is well settled that confession of one accused cannot be used as evidence against the co-accused and that the same can be used only to tilt the balance against the co-accused, when the rest of the evidence is sufficient for a conviction.

18. The evidence of PW15, Circle Inspector, shows that after the arrest of accused Nos. 4, 5 and 6, no test identification parade was conducted. The object of conducting a test identification parade is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime and to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence and also to test the memory of the witnesses based on first impression to enable the prosecution to decide whether all or any of them could be cited as eye witnesses to the crime, as held by the Honourable Supreme Court in Mulla v. State of U.P. [(2010) 3 SCC 508]. Even though, the evidence of a test identification parade is admissible under Section 9 of the Indian Evidence Act, the same is not a substantive piece of evidence and it can be used only to corroborate the evidence given by the witnesses before the court at the time of trial.

19. The learned counsel for the appellants argued that there is no proper dock identification of accused Nos. 4, 5 and 6 by PWs 1 and 2 and in this connection, cited the decision of this Court in Vayalali Girishan and Others v. State of Kerala [2016 KHC 204], wherein it was held that even if the witness and the accused are persons known to each other, it is obligatory for the witness to identify the accused in court by pointing out that the person referred to by him in the evidence is the person who is standing in the dock and it is obligatory for the court to record in the deposition that the witness had identified the accused in the dock.

20. It is true that in this case, the trial court recorded in the deposition of PWs 1 and 2 that they identified accused Nos. 4, 5 and 6. But, it is pertinent to note that PWs 1 and 2 identified accused Nos. 4, 5 and 6 only as three persons among the five persons trespassed into the house and they have not deposed the specific overt acts committed by accused Nos. 4, 5 and 6 at the time of occurrence and therefore, I find that the evidence of PWs 1 and 2 regarding the identity of the appellants is extremely sketchy. In this connection, it is also pertinent to note that the evidence of PWs 1 and 2 clearly shows that the absconding first accused is known to them and that he is not involved in the crime. investigation from 16.11.2001 onwards and his evidence shows that PWs 1 and 2 have not stated anything to him regarding the identity of accused Nos.4, 5 and 6. The evidence of PW13 shows that PWs 1 and 2 have not stated the identifying features of accused Nos. 4, 5 and 6 in their statement to the police. PW13 further deposed that in his investigation, it is revealed that the first accused is a relative of PW1. It is in evidence that the dog squad and finger print expert reached the place of occurrence. But, PW13 would say that he has not received any report from the finger print expert.

22. I find force in the argument of the learned counsel for the appellants that the prosecution has suppressed the report of the finger print expert and normally when the finger print expert examines the place of occurrence, there will be a report as to whether any finger print was collected from the place of occurrence and the prosecution has no case that any attempt was made for comparison of the finger prints of accused Nos. 4, 5 and 6 with any finger print collected from the place of occurrence. There is also no satisfactory explanation from the side of the prosecution as to why James Joseph, the tenant residing in the up-stair portion of the same building who reached the place of occurrence within ten minutes of the occurrence, was not cited or examined as a witness.

23. In Shinoj Singh v. State of Kerala (2024 KHC 62), the Honourable Supreme Court held that if a material witness, who would unfold the genesis of incident or an essential part of the prosecution case, is not convincingly brought to fore, or where there is a gap or infirmity in the prosecution case, which could have been bridged or made good by examining a witness who, though available, is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution.

24. Thus, taking into consideration all these aspects, in the facts and circumstances of this case, I find that the appellants are entitled to be acquitted as the benefit of doubt weighs in their favour.

In the result, the appeal is allowed and the conviction and sentence imposed by the trial court against the appellants/accused Nos. 4 to 6 is set aside and they are acquitted of the offences under Sections 452, 382 and 395 r/w 34 IPC. The bail bonds executed by the appellants/accused Nos. 4 to 6 shall stand cancelled and they are set at liberty forthwith.