IMPORTANT POINT
TI Parade and evidence of child witness.

JUDGMENT

Madan B. Lokur, J.-

The question before us is whether, in the absence of a Test Identification Parade (TIP for short), the evidence of a child witness should have been accepted for convicting the appellant. In our opinion, on the facts of this case both the Trial Court and the High Court were right in convicting the appellant for offences punishable under Section 397 (robbery or dacoity, with attempt to cause death or grievous hurt) and Section 302 (punishment for murder) of the Indian Penal Code. However, no case has been made out for convicting the appellant for an offence punishable Section 449 (house trespass in order to commit offence punishable with death) of the IPC.

The facts:

2. On 20th October 1997, the appellant and Jose Joseph came to the residential premises of PW-1 Jose son of Anthony at about 4.30 p.m. with the common intention of committing robbery. While Jose Joseph stood guard near the house, the appellant made an entry and came upon PW-2 Lidiya daughter of PW-1 Jose son of Anthony, who was then aged about 11 years. Thereupon he caught hold of her neck, threatened to kill her and then robbed her of her gold chain and two gold ear studs.

3. Thereafter, he entered one bed room in the house and attempted to rob Lidiya’s grandmother Annamma, aged about 90 years of her ornaments. When Annamma raised an alarm the appellant pulled her down from the cot on which she was lying and beat her on the head with a wall clock. He then robbed her of her gold chain weighing about 5.500 grams by breaking it from her neck and also took two imitation bangles from a bag kept inside the almirah in the room. The appellant then went away from the house.

4. Upon the departure of the appellant and Jose Joseph from the scene of crime, Lidiya went to the school where she learnt dancing from her father and informed him of the incident. They both rushed back to the house along with some friends and on discovering Annamma’s condition, she was first taken to Kanjirappally Government Hospital and then to the Kottayam Medical College Hospital for treatment. Unfortunately she passed away on 29th October 1997.

5. On a complaint having been lodged of the robbery, the police investigated the case and during the investigations, on 24th October 1997, the Investigating Officer PW-13 T.A. Salim recovered the stolen articles at the instance of the appellant.

6. On conclusion of investigations, a challan was filed and the appellant was charged with offences punishable under Section 449 of the IPC, Section 397 of the IPC and Section 302 of the IPC. Jose Joseph was also similarly charged but the Trial Judge found him guilty of an offence punishable under Section 411 of the IPC.

7. Both the convicts filed appeals in the High Court. While the appeal filed by Jose Joseph was accepted by the High Court, the appeal of the appellant was rejected and his conviction and sentence upheld.

8. We are, therefore, concerned only with the appeal filed by the appellant. Decision of the Trial Court:

9. The Trial Judge found from the medical evidence given by PW-10 Dr. V.P. Rajan, Civil Surgeon in the Kanjirappally Government Hospital that Annamma was aged about 90 years. She had an injury on her forehead above the left eyebrow with suspicion of a fracture, edema of both eyelids and lacerated injury on right side of the forehead. According to him, the injuries could have been caused by a wall clock as alleged by the prosecution. The Trial Judge also considered the medical evidence of PW-11 Dr. Babu, Assistant Professor of Forensic Medicine, Kottayam Medical College that Annamma died on 29th October 1997 as a result of the head injuries sustained by her. The Trial Court found that the evidence of both the doctors was not challenged and proved that Annamma died due to the violence inflicted on her including being hit with a wall clock.

10. The Trial Judge also found no reason to disbelieve the consistent testimony of Jose son of Antony and Lidiya who was an eye w