2021 (10) TMI 1026 - SC - Indian Laws

Offence punishable under Section 55(a) of Kerala Abkari Act - only evidence against the accused No.1 is of an alleged confession made by the accused No.2 - HELD THAT - 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 the facts of the case, the evidence of PW13 as regards the identification of the accused Nos.2 and 4 in the Court cannot be accepted. PW8 was a police constable working at the concerned police station. He claimed that after the truck was stopped, three persons in the truck ran away. One was caught who disclosed that he was the driver of the truck. He identified the accused No.2 in the Court. However, he has not seen accused No.2 driving the truck. PW10 Shri N. George was a police constable attached to the concerned police station who claimed that after the truck was stopped, three persons inside 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. It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful. The impugned judgment and orders are hereby set aside and the appellants are acquitted of the offences alleged against them. Their bail bonds stand cancelled - Appeal allowed.

Summary

Issues Involved:
1. Conviction under Section 55(a) of the Kerala Abkari Act.
2. Ownership and identity of the truck used for transporting spirit.
3. Reliability of witness testimonies and identification of accused.
4. Admissibility of evidence and procedural lapses.

Detailed Analysis:

1. Conviction under Section 55(a) of the Kerala Abkari Act:
The appellants were convicted for transporting 6090 litres of spirit without a license, punishable under Section 55(a) of the Kerala Abkari Act. The prosecution alleged that the appellants transported the spirit in a truck with fake number plates.

2. Ownership and Identity of the Truck:
The prosecution claimed that the accused No.1 was the owner of the truck used for transporting the spirit. However, the evidence presented was insufficient to prove the ownership. The prosecution's reliance on a statement from PW3, who allegedly sold the truck to accused No.1, was not supported by documentary evidence. The Regional Transport Office (RTO) records were not produced, and there was no investigation into the truck's engine and chassis numbers to verify the correct registration number. This lack of evidence led to doubts about the truck's identity and ownership.

3. Reliability of Witness Testimonies and Identification of Accused:
The prosecution's case relied heavily on witness testimonies, particularly from PW13, an independent witness, and several police officers. However, the identification of the accused in court occurred more than 11 years after the incident, without any Test Identification Parade (T.I Parade) being conducted. The court noted that identification after such a long period, especially without prior acquaintance and without a T.I Parade, is a weak piece of evidence. The witness PW13 admitted difficulty in identifying individuals after 11 years, further weakening the prosecution's case.

4. Admissibility of Evidence and Procedural Lapses:
The court found significant procedural lapses in the prosecution's case. The mahazar (seizure record) included statements from accused No.2 implicating accused No.1, but these statements were inadmissible as they were made to a police officer. The prosecution also failed to produce crucial documentary evidence, such as the R.C book and RTO records, which could have substantiated the ownership and identity of the truck. The absence of these documents and the failure to examine key witnesses (e.g., Shri Balachandran Nair who climbed the truck) further undermined the prosecution's case.

Conclusion:
The Supreme Court found that the prosecution failed to provide sufficient evidence to prove the ownership of the truck and the involvement of the accused beyond a reasonable doubt. The identification of the accused based on witness testimonies was deemed unreliable due to the long gap between the incident and the court proceedings. The procedural lapses and lack of crucial evidence led to the acquittal of the appellants. The impugned judgment and orders were set aside, and the appellants were acquitted of the offences alleged against them. Their bail bonds were cancelled, and any fines paid were ordered to be refunded.