The judgment establishes that mere association with a group and circumstantial evidence are insufficient for conviction without credible identification of the accused.

JUDGMENT

Vinod Chandran, J.

Every crime is shocking, but the present one is macabre for reason of it being a random killing, allegedly to instill fear into society; for an organization of Dalits to thus establish themselves as formidable. A conspiracy is said to have been hatched to carry on random killings by the members of the association; the accused arraigned, which in the wee hours of 23.09.2009 led to the death of a morning walker and the near death of a tea shop owner.

2. The prosecution went to Court arraying A1 to A16. A15 died in the course of trial. A6 & A11 are still absconding. A1 & A3 to A5, A7, A10 & A16 were convicted and the other six were acquitted. The convicted accused were sentenced to undergo imprisonment for life for the offence punishable under S.302 r/w S.120B and S.149 IPC . They were also sentenced to undergo RI for a period of ten years each under S.307 r/w S.120B and S.149 . Sentences were imposed under the other provisions charged, for lesser periods, all of which were to run concurrently. Fines were imposed under the various provisions and in default, the accused were sentenced to undergo simple imprisonment for various periods.

3. The appeals are filed by the accused and learned Senior Counsel Sri. Vijaya Bhanu argued on behalf of A5 & A10. Sri. C.Prathapchandran Pillai appeared for A1, A3, A4, A16 & A7. Sri. V.S.Sreejith, learned Senior Public Prosecutor, appears for the respondent State.

4. Sri.Vijaya Bhanu made submissions separately with respect to A5 & A10. At the outset, it was urged that the Dalit Human Rights Movement (for brevity, 'DHRM') is a registered organization and is not a proscribed one. The allegation is that the accused members of DHRM carried out the killing to establish themselves and thus instill fear in the minds of people. Though widespread search was made all over the State and many places, where the office of the organization was situated, nothing incriminating was recovered. There were no publications by the organization regarding the crime nor was the crime owned up. As far as A5 is concerned, it is argued that there is absolutely no evidence of the presence of A5 or his identification in the two scenes of crime. PW2, the injured, had only a fleeting glimpse of A5 when the alleged attack was perpetrated on him. Admittedly, A5 was not known to PW2 and it was the first time he came across that person. When the witness deposed categorically that he was shown A1 by the Police after his arrest, the identification in the dock cannot be believed. The witness had attempted to put forth a contention that an unofficial Test Identification Parade (TIP) was carried out when A5 was brought to his house; who was shown, along with five others for identification. The Investigating Officer (I.O), PW65, categorically denied the same. The prosecution had also attempted to prove A5's presence in the locality through other witnesses; all of whom are planted and untrustworthy.

5. PW7 is a person running an unauthorised taxi, who is said to have seen and identified A5 from a running motor bike. PW10's testimony is also to the effect that he identified A5 from a moving bike. The other incriminating circumstance against A5 is the recovery of MO1 bike. Looking at PW65's evidence, it is clear that A5 was arrested on 03.10.2009 and was taken into custody on 08.10.2009. A5 was taken to the scene of occurrence, to identify it as the crime scene; unacceptable in evidence. The recovery of the bike is on 14.10.2009 by Ext.P12, but the mahazar shows the confession having been made on 08.10.2009 and what is stated by the I.O in his deposition differs drastically from that of the confession in the mahazar. PW21 is the witness to Ext.P5 mahazar by which A5 is said to have identified the scene of occurrence. Interestingly, it was A13 who was identified as A5 by PW21. The testimonies of PW3, PW4, PW29 & PW65 categorically prove that there was a drizzle at the time when the two incidents had occurred. PW7 i