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2021 (10) TMI 1026
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....the accused No.1 was the owner of the truck by which the spirit was transported. The case is that the said truck bearing registration number KLB-7589 was fitted with fake number plates bearing registration number KLY-730. At the time of the commission of the offence, the truck was being driven by the accused No.2 and that the accused Nos.3 and 4 were accompanying the accused No.2 in the truck. 4. The case of the prosecution is that on 25th July 1999, around 12:30, the said truck was stopped at Mandapathin Kadavu check post for checking. When the truck was stopped and while it was being checked, the accused No.2 suddenly started the truck and drove ahead by damaging the barricade put on the road near the check post. One Shri Balachandran Nair, a peon working at the check post had climbed on the top of the truck for inspecting the goods inside the truck. As the accused No.2 started the truck and went ahead after damaging the barricades, the said Shri Balachandran Nair jumped from the truck and saved himself. The sub-inspector of police at Kattakkada Police Station was alerted about the incident. The said sub-inspector Shri R. Prathapan Nair (PW12) along with the police party proceed....
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.... an appeal against the order of conviction. The appeal has been dismissed by the learned Single Judge of the Kerala High Court by the impugned judgment. SUBMISSIONS ON BEHALF OF ACCUSED NO.1 7. Shri R. Basant, the learned Senior Counsel appearing for the accused No.1 has taken us through the evidence of the witnesses. His basic submission is that the only evidence against the accused No.1 is of an alleged confession made by the accused No.2. He submitted that the prosecution has failed to establish that the accused No.1 was the owner of the offending truck. He pointed out that PW3 Shri Rajendra Prasad was examined by the prosecution who deposed that he sold the truck to the accused No.1. The learned Senior Counsel pointed out that apart from the fact that PW3 did not support the prosecution, even the record of the Regional Transport Office (RTO) regarding the name of the registered owner of the truck was not produced by the prosecution. He pointed that though the offending truck was having a number plate bearing number KLY-730, according to the prosecution case, a photocopy of R.C book of Tata HMC Goods vehicle of registration No. KLB-7589 was found in the truck as recorded in m....
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....hu that he identified the accused No.2 in the court nearly after lapse of 12 years cannot be believed. He urged that the same is the case with other official witnesses who identified the accused No.2 in the Court after a gap of 11 to 12 years. He submitted that the prosecution could not prove what was the correct registration number of the truck and even investigation was not carried out to ascertain the correct registration number. He urged that the first part of the prosecution case that when the truck was halted at the check post, the accused No.2 started the truck and took it ahead after the damaging barricade has not been established as the government servant who had climbed over the truck was not even cited as a witness. He would, therefore, submit that the entire prosecution case is doubtful and, therefore, the conviction of the accused No.2 cannot be sustained. He submitted that there is no evidence adduced against the accused No.4. His submission is that the conviction of both the accused Nos.2 and 4 cannot be sustained. SUBMISSIONS OF THE PROSECUTION 9. Shri Abraham C. Mathew, the learned counsel appearing for the respondent stated that identification of the accused No....
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.... Shri Rajendra Prasad. He did not support the prosecution and did not accept that he was the owner of the truck and that he had sold the said truck to the accused No.1. The prosecution relied upon the notice dated 26th December 1999 served by the investigation officer on PW3 in which it was stated that the truck bearing registration number KLB-7589 was registered in the name of Shri Sajan Mathai who sold it to one Shri Chandran and PW3 Shri Rajendra Prasad purchased the same from Shri Chandran. By the said notice, the investigation officer called upon PW3 Shri Rajendra Prasad to respond on the ownership of the vehicle. PW3 by his reply dated 26th December 1999 informed the investigation officer that he had sold the said truck to the accused No.1 on the basis of a sale deed. He claimed that the sale deed has been lost. PW3 Shri Rajendra Prasad denied the signature on the said reply. It is pertinent to note that Shri Sajan Mathai and Shri Chandran who were the alleged prior owners of the truck were not examined by the prosecution. Surprisingly, no investigation was made whether the correct registration number of the truck was KLY-730 or KLB-7589. It appears that the prosecution came ....
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....ny time thereafter, he had not seen the accused. He was examined before the Court on 20th April 2011. Thus, he deposed before the Court after 11 years and 9 months after the date of the incident. It is pertinent to note that admittedly T.I Parade was not held and the witness never knew accused before the incident. 15. It is well settled that T.I Parade is a part of investigation and it is not a substantive evidence. The question of holding T.I Parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, T.I Parade may make the identification of the accused by the witness before the Court trustworthy. However, the absence of T.I Parade may not be ipso facto sufficient to discard the testimony of a witness who has identified the accused in the Court. In a given case, there may be otherwise sufficient corroboration to the testimony of the witness. In some cases, the Court may be impressed ....
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....nside the truck ran away and one person who was stopped, claimed to be the driver of the truck. However, he has not stated that he had seen the accused No.2 driving the truck. He also identified the accused No. 4 as a person who ran away from the truck. 19. Now, we turn to the evidence of PW12 Mr. R. Prathapan Nair who was the investigation officer. He stated that on 25th July 1999, he received information while he was on duty in the police station that a truck bearing number KLY-730 went passed check post causing damage to barricades and it was transporting some illegal articles. He along with the police party went out to locate the truck which was found near Khadi Board at Kizhamachal and tried to stop it. He alleged that on seeing the police party, the driver of the truck stopped the same. According to him, the driver and two others stepped out from the truck and ran away. The police party could get hold of the driver of the truck who was arrested. He stated that in the mahazar, the presence of accused No.2 was noted. He identified the accused No.2 in the Court. In the cross examination, he stated that as a police vehicle was not available, a private vehicle was used and the dr....