1. The revision petitioner herein is the first accused in C.C No.294/2007 on the files of the Judicial First Class Magistrate Court, Thalassery. He was convicted by the learned Magistrate for the commission of offence under Sections 341 and 326 I.P.C, and sentenced to rigorous imprisonment for two years and fine Rs.1,000/- for the offence under Section 326 I.P.C, and simple imprisonment for one month for the offence under Section 341 I.P.C. In the appeal filed as Crl.A No.229/2012, the Additional Sessions Judge-IV, Thalassery set aside the conviction and sentence for the offence under Section 341 I.P.C, and confirmed the conviction and sentence for the offence under Section 326 I.P.C. Aggrieved by the aforesaid verdict of the Appellate Court, the petitioner is here before this Court with this revision petition.

2. Heard the learned counsel for the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

3. The prosecution case is that on 22.01.2007 at about 4:45 p.m, the petitioner, along with three other accused, wrongfully restrained PW1 in front of the bus stop near the Mosque at Punnol, and inflicted voluntary grievous hurt upon him by hitting with iron pipe. The reason for the aforesaid assault is said to be the political animosity of the accused.

4. The petitioner alone was convicted in the trial, since the second accused was reported to be no more, and the other two accused went absconding. The prosecution relied on the evidence of 10 witnesses, examined as PW1 to PW10, and four documents marked as Exts.P1 to P4, in support of the charge levelled against the petitioner and the other accused. PW1 to PW5 were the witnesses examined for proving the occurrence of the crime. However, PW2 to PW4 turned hostile and discredited the prosecution story. PW1, the injured, testified before the Trial Court about the criminal acts attributed to the petitioner and the other accused. PW5, an autorickshaw driver, stated before the Trial Court about the physical assault of the accused hitting PW1 with a weapon which looked like a stick. However, he further stated that, at that time he did not understand the identity of the victim, who suffered injuries at the hands of the accused. The Appellate Court found the above statement of PW5 totally contradictory to the statement which he gave to the investigating officer, as revealed from the evidence of PW9. For the above reason, the Appellate Court concluded that PW5 had no occasion to see the incident. However, the Appellate Court concurred with the findings of the Trial Court that the evidence on record was sufficient to show that the petitioner, along with the other accused, inflicted blows upon PW1 with an iron pipe, and caused grievous hurt.

5. The Trial Court as well as the Appellate Court failed to take note of the fact that there was no identification of the petitioner as the accused, by PW1 at the time when he was examined before the Trial Court. The prosecution did not venture to put any question to PW1 as to whether the petitioner, who was standing in the dock, was the person whom he referred to as the first accused, who mounted physical assault upon him by inflicting blows with an iron pipe. It is curious to note that no effort for dock identification of the petitioner was made, though the prosecution took care to get the weapon of offence identified as MO1. True that, PW5 had identified the petitioner in Court during the course of his examination as witness. However, the aforesaid identification of the petitioner by PW5 is of no help for the prosecution since the Appellate Court has concluded that PW5 had no occasion to see the incident. The failure of the prosecution to get the petitioner identified by PW1 during the course of trial, has created a serious dent in the prosecution evidence, which is sufficient to hold that the prosecution has failed to establish the offence alleged against the petitioner.

6. In Tukesh Singh v. State of Chattisgarh [2025 KHC 6479], the Hon’ble Supreme Court has held that, in a case where the eye witnesses knew the accused before the incident, they must identify the accused in dock as the same accused whom they had seen committing the crime. It was further observed thereunder that, unless the eye witnesses identify the accused present in Court, it cannot be said that the guilt of the accused has been proved based on the testimony of those witnesses. The relevant paragraph in the judgment of the Hon’ble Supreme Court is extracted hereunder:

                  “21. In a case where there are eyewitnesses, one situation can be that the eyewitness knew the accused before the incident. The eyewitnesses must identify the accused sitting in the dock as the same accused whom they had seen committing the crime. Another situation can be that the eyewitness did not know the accused before the incident. In the normal course, in case of the second situation, it is necessary to hold a Test Identification Parade. If it is not held and if the evidence of the eyewitness is recorded after a few years, the identification of such an accused by the eyewitness in the Court becomes vulnerable. Identification of the accused sitting in the Court by the eyewitness is of utmost importance. For example, if an eyewitness states in his deposition that “he had seen A, B and C killing X and he knew A, B and C”. Such a statement in the examination-in-chief is not sufficient to link the same to the accused. The eyewitness must identify the accused A, B and C in the Court. Unless this is done, the prosecution cannot establish that the accused are the same persons who are named by the eyewitness in his deposition. If an eyewitness states that “he had seen one accused assaulting the deceased with a sword, another accused assaulting the deceased with a stick and another accused holding the deceased to enable other accused to assault the deceased.” In such a case, the eyewitness must identify the accused in the open Court who, according to him, had assaulted the accused with a stick, who had assaulted the deceased with a sword and who was holding the deceased. Unless the eyewitnesses identify the accused present in the Court, it cannot be said that, based on the testimony of the eyewitnesses, the guilt of the accused has been proved.”

7. As far as the present case is concerned, neither the Trial Court nor the Appellate Court had considered the aforesaid anomaly in the prosecution evidence regarding the omission to get the petitioner/accused identified by PW1. The error in the above regard is one capable of stultifying the entire prosecution case.

8. Another important aspect to be noted is that the Trial Court failed to comply with the requirement under Section 313 Cr.P.C, to put the specific incriminating circumstance brought out in evidence to the petitioner herein. The one and only question put to the petitioner under Section 313 Cr.P.C in connection with the evidence pertaining to the act of the petitioner inflicting blows upon PW1 with iron pipe, is the second question which reads as follows:

                

9. It has to be stated at the outset that even the date of offence is mistakenly mentioned in the aforesaid question put to the petitioner. That apart, what the petitioner was asked to explain in the aforesaid question is about Ext.P1 complaint of PW1 about the allegation against accused causing injuries upon him by inflicting blows with MO1 iron pipe. The Trial Court did not put any question to the petitioner about the testimony of PW1 that the petitioner inflicted blows upon the head, arms and leg of that witness with an iron pipe at about 4:45 p.m on 22.01.2007, while he was standing at the bus stop near the Mosque at the place called Punnol. It appears that the Trial Court had considered the questioning of accused under Section 313 Cr.P.C as an empty formality and put the questions in a perfunctory manner. The non-compliance of the requirement of getting the explanation of the accused on the incriminating circumstances brought out in evidence, would vitiate the trial conducted in this case. For that reason also, the conviction recorded and the sentence awarded by the courts below are liable to be set aside.

                  In the result, the revision petition stands allowed as follows:

                  i) The concurrent verdicts of conviction of the petitioner/accused for the commission of offence under Section 326 I.P.C by the Courts below, and the sentence awarded for the said offence, are hereby set aside.

                  ii) The petitioner/accused is acquitted of the aforesaid offence found against him by the courts below.

                  iii) The bail bond of the petitioner stands cancelled and he is set at liberty.