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Dacoity – under sec.379 I.P.C r/w sec.102 B of I.P.C – No proper arrest – No proper test identification – No proper recovery – No conspiracy was proved – Trial court rightly acquitted the accused on benefit of doubts – where as high court committed error – High court not discussed the evidence except mentioning chief examination and with out discussing the evidence – Apex court set aside the order of the high court and acquit the accused = Thimmareddy & Ors. …..Appellants Vs. State of Karnataka …..Respondent = 2014 (April.Part)judis.nic.in/supremecourt/filename=41434

Dacoity – under sec.379 I.P.C r/w sec.102 B of I.P.C – No proper arrest – No proper test identification – No proper recovery – No conspiracy was proved – Trial court rightly acquitted the accused on benefit of doubts – where as high court committed error – High court not discussed the evidence except mentioning chief examination and with out discussing the evidence – Apex court set aside the order of the high court and acquit the accused =

 

 “1) Whether the prosecution proves that  the  accused  conspired

together in order to commit robbery on CW-3Y Yousuf in KSRTC bus.  While  he

was travelling and also to other passengers in the bus?

 

The relevant discussion in the judgment of  the

learned trial court on this aspect reads as under:

 

                  “The requirement of criminal conspiracy, there must be  an

           existence of an agreement to commit an  offence.  The  conspiracy

           can be proved by the direct evidence though the  same  is  rarely

           available, or by circumstantial evidence. As could be  seen  from

           the requirement of law there must be  an  agreement  between  the

           accused  to  commit  an  unlawful  act  lead  to   inference   of

           conspiracy. The evidence of this Allabakash is  not  corroborated

           with any other evidence. He never speaks about anything  unlawful

           act to be done  and  anything  about  an  agreement  between  the

           parties with  regard  to  the  commission  of  an  unlawful  act.

           Necessary ingredients are not established by leading the evidence

           of this PW-19 during  the  course  of  cross-examination  he  has

           admitted that the accused were talking in open space. The publics

           were passing besides the accused. He did not hear what they  were

           talking. He did not suspect about the accused. Two  months  after

           the incident the police came and enquired him. Seetharama A-6  is

           a merchant and good man. On that day whatever  the  accused  were

           talking was not in respect of any wrongdoing.  These  answers  of

           this witness during the course of cross-examination clearly gives

           goodbye to the theory  of  criminal  conspiracy.  Therefore,  the

           materials available on record are  not  sufficient  to  establish

           that there was a criminal conspiracy among the accused  in  order

           to commit the offence.”

For want of establishment of charge of conspiracy A-6 and  A-4  are

let off by the High Court also as they were not named  by  any  of  the  eye

witnesses. We are, therefore, quite in agreement with the conclusion of  the

trial court that charge of conspiracy under Section 120-B  of  IPC  has  not

been proved.

 

            2) Whether the prosecution proves  that  as  a  result  of  said

conspiracy the accused committed the  dacoity  in  the  bus  bearing  No.KA-

36/3453 by showing the deadly weapons like sickle, knives near Kapgal  Seema

at Bailmerchad cross on Raichur Manvi road and committed Dacoity?

 

 

The  trial  court  referred  to  Karnataka

Police  Manual  and  observed  that  the  investigation  was  not  done   in

accordance with the procedure for  identifications  contained  therein.  His

analysis in this behalf reads as under:-

 

 “After seeing the above statement the victims of  the  incident,

           before the police, it is clear that none of the victim has given

           any clue to identify the accused persons. Now  the  question  is

           what are the materials available with the police to search these

           accused has to be looked into. Here I would like  to  refer  the

           Karnataka Police Manual, where  a  chapter  is  provided,  which

           gives the procedure for identifications. They have to  ascertain

           the kind of light, which was present at the  time  of  incident.

           The details of the opportunities of seeing the  accused  at  the

           time of offence. Anything outstanding in the features or conduct

           of the accused which impressed him  (identifier).  The  distance

           from which he saw the accused and the context of time during  he

           say the accused.     It is mandatory on the part of the I.O.  to

           record in the case diary, the description  in  detail  with  the

           above said ingredients. As could be seen  from  the  case  diary

           available on  record  there  are  no  materials  placed  by  the

           prosecution to show that they had identification feature of  the

           accused with them after the incident. Therfore, there is a lapse

           on the part of the investigating agency  to collect the material

           information, which gives to the prosecution an opportunities  to

           identify the accused. But they  have  failed  to  establish  the

           identify of the accused persons  of  this  case.  Therefore,  as

           could be seen from the  statements  of  eye  witnesses  who  had

           suffered injuries in  the  hands  of  the  Dacoits  who  had  an

           opportunity of seeing the accused with very close range have not

           given any description  of  the  identification  feature  of  the

           accused.

 

There is another important aspect  which  cannot  be  lost  sight  of,

 namely as per PW-1 the faces of all the accused persons were  covered  with

 kerchief. It is not at all stated by any of the witnesses as to when  these

 persons removed those kerchief and their faces became naked which could  be

 seen by  these  witnesses.  

Recovery and Arrest 

 

 In so far as  recovery  on  the  basis  of  purported  voluntary

statement of the accused persons is concerned, the trial  court  found  that

while  recording  alleged  voluntary  statement  of  the  accused   persons,

procedure as laid down under Sections 165 and 166 of the  Code  of  Criminal

Procedure  was not  followed.  The  accused  from  outside  the  State  were

arrested within the limits of some other police  station  without  following

the procedure under Section 166 Cr.P.C. It is further pointed out that  when

the  accused  persons  were  brought  in  Manvi  Police  Station  and  their

voluntary statements were allegedly recorded,  the  police  committed  major

irregularities which  were  incurable. 

  “Now the question that would  arise  is  whey  the  police

           officer  has  requested  the  Tahsildar  to  provide  Government

           official to act as panchas. 

What is the reason  for  taking  the

           Government  official  to  act  as  panchas.  According  to   the

           procedure, the police officer has  to  take  the  assistance  of

           local people as panchas, and he must give reasons if he does not

           take the  assistance  of  local  people.  

Before  recording  the

           voluntary  statements  he  requests  the  Tahsildar  for  giving

           panchs. How he came to know whether these accused persons  would

           give voluntary statements regarding recovery of the cast. 

Then o

           the basis of those voluntary statements the amount was recovered

           from the respective houses  and  subsequently,  the  amount  was

           recovered from other accused  persons  as  per  their  voluntary

           statements. 

The I.O. has not stated about  the  details  of  the

           panchnamas under which the recovery  was  made.  It  has  to  be

           proved by the prosecution by leading cogent evidence.”

 
 

        3) What order?”

High Court has committed grave error in recording the conviction solely  on

 the basis of the statement of the so  called  eye  witnesses,  and  wrongly

 believing their version. From the discussion contained in the  judgment  of

 the High  Court,  it  becomes  apparent  that  except  stating  what  these

 witnesses  have  mentioned  in  their  examination-in-chief,   no   further

 discussion is there in the judgment and  the  testimony  is  of  all  these

 persons are believed as gospel truth. The High  Court  was  duty  bound  to

 consider  their  testimonies  in  entirety  i.e.  along  with  the   cross-

 examination in order to find out their  truthfulness  and  to  see  whether

 their version in examination in chief has remained unshaken and  worthy  of

 credence. No such exercise is done at all. No doubt, the  trial  court  has

 indulged in wholesome discussion while  discarding  the  testimony  of  eye

 witnesses. Fact remains that while doing so, the trial court discussed  the

 infirmities in the procedure adopted which led to the disbelieving  of  all

 these witnesses. The discussion of the  trial  court  adversely  commenting

 upon the faulty procedure and imperfect investigation is completely ignored

 and sidelined by the High Court.

We are, therefore, of the opinion that the judgment of the High  Court

 holding the appellants guilty of the offence is unsustainable. The same  is

 accordingly set aside.  This appeal is allowed holding that charge  against

 the appellants under Section 397 IPC read with Section 120-B has  not  been

 proved beyond reasonable doubt.

 2014 (April.Part)judis.nic.in/supremecourt/filename=41434

SURINDER SINGH NIJJAR, A.K. SIKRI

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903/2014
(arising out of S.L.P.(Crl.) No. 6943/2011)

Thimmareddy & Ors. …..Appellants

Vs.

State of Karnataka …..Respondent

 

J U D G M E N T

 

A.K.SIKRI,J.

1. Leave granted.

2. With the consent of learned counsel for the parties, matter was heard
finally.

3. Instant is an appeal filed by three persons who were accused of
committing offence punishable under Section 397 read with Section 120-B IPC
along with five others. After the trial of these accused persons, the
Sessions Court had acquitted all the accused person holding that charge
under the aforesaid provisions had not been proved against these accused
persons beyond reasonable doubt. The State had questioned the validity of
the judgment of the trial court by preferring the appeal under Section
378(1) and (3) of the Code of Criminal Procedure. During the pendency of
the appeal, one of the accused persons, namely P.Laxman (A-3) died. Appeal
was heard qua remaining seven accused persons. The High Court vide its
judgment dated 1st December 2010 has convicted five of the seven accused
persons for the offence punishable under Section 397 read with Section 120-
B of the IPC and have imposed the sentence of rigorous imprisonment for a
period of seven years. They have also been directed to pay compensation of
Rs.50,000/- each for the aforesaid offences and in default of such
payment, to undergo simple imprisonment for a period of one year. The
persons who were convicted are accused No.1 to 5, 7 and 8. In respect of
accused No.4 and 6, the judgment of the Sessions Judge is maintained
holding that the charges against them are not proved and appeal in respect
of the said two persons is dismissed. As mentioned above, out of the five
accused convicted, only three have approached this Court with present
appeal, who are A-1, A-2 and A-5.

4. The case of the prosecution has been stated by the High Court in the
impugned judgment, which can be reproduced without any fear or
contradiction, is as follows:-

“On 8.10.2004 at about 10.30 p.m., a KSRTC bus bearing
No.KA.36/3453 was proceeding on the Manvi-Raichur Road near
Kapagal village. At that time, accused No.4 and accused No.6 who
had conspired together andplanned to commit dacoity, gave
information to accused No.1, accused No.2, accused No.3, accused
No.7 & 8 and all of them committed the offence as per their
plan. Accordingly, they went by bus from Gadwal and travelled in
the Raichur Mantralayam-Hubli bus as passengers. A-2 by holding
a sickle to the neck of the driver PW.2, asked him to stop the
bus by assaulting him and threatening to injure him. Immediately
the bus was stopped. Accused No.5 took the knife and accused
No.1 took dagger and pressed on the chest of PW3 and threatened
him with dire consequences. Then, accused No.3 robbed the suit
case of PW6 and A-7 took out a knife and threatened PW15,
Udaykumar, who suffered injuries on his left hand. A-8 snatched
a bag containing money from PW1. Then A-1, A-5 and A-8 robbed
the two suit cases of PW13 Jagadeesh and PW7 Jeelani. They also
snatched the bag of PW20 Hanumanthappa. A-1,A-7 and A-8 snatched
the cash bag from the complainant namely the conductor of the
bus. They went at a distance opened the suit cases, took away
the money and threw away the articles. Thereby all the accused
committed dacoity of an amount of Rs.4,47,100/-. Thereafter, the
complainant went to the Manvi Police Station and lodged a
complaint. PWs.2, 6,7,13 and 15 accompanied him. The statements
of PWs.2,6,7,13 and 15 were also recorded. Accordingly, a case
in Crime No.182/2004 was registered by the Manvi Police Station
for offences punishable under Section 120-B read with 397 IPC
and investigation commenced. Thereafter the accused were
arrested and a sum of Rs.28,000/- was recovered from A-1, a sum
of Rs.54,000/- from A-2, a sum of Rs.32,000/- from A-3, a sum
of Rs.36,000/- from A-4, a sum of Rs.35,000/- from A-5, a sum of
Rs.12,000/- from A-6, a sum of Rs.500/- from A-7 and a sum of
Rs.9,600/- from A-8. The weapons used in the offence was
recovered on their voluntary statement. Various articles were
also recovered. On completion of investigation, a charge sheet
was filed by the prosecution and the accused were charged for
the offence punishable under Section 120-B and 397 of the Indian
Penal Code. “

 
5. The prosecution examined 24 witnesses and produced 78 documents which
were exhibited. The prosecution also marked 37 material objects. The
accused persons in their defence examined two witnesses and produced five
documents.

6. As is clear from the provisions of IPC, charge whereupon was
pressed, it was the case of the prosecution that eight accused persons had
hatched a conspiracy to commit the dacoity and in furtherance of the said
conspiracy they committed dacoity by intercepting KSRTC on 8.10.2004 at
about 10.30 p.m. The trial court, accordingly, formulated following points
which arose for consideration:

“1) Whether the prosecution proves that the accused conspired
together in order to commit robbery on CW-3Y Yousuf in KSRTC bus. While he
was travelling and also to other passengers in the bus?

2) Whether the prosecution proves that as a result of said
conspiracy the accused committed the dacoity in the bus bearing No.KA-
36/3453 by showing the deadly weapons like sickle, knives near Kapgal Seema
at Bailmerchad cross on Raichur Manvi road and committed Dacoity?

3) What order?”

7. Obviously, the first question which fell for consideration was
as to whether the accused persons had conspired together in order to
commit robbery on Yousuf (PW-6). Second aspect of the matter was as to
whether prosecution was able to prove that as a result of the aforesaid
conspiracy these accused persons had, in fact, committed dacoity in the
said bus on the given date and time.

8. In so far as charge of conspiracy is concerned, it was noted by the
trial court that the evidence produced in support of this charge was PW-19
Allabaksh and Yusuf (PW-6). The statement of PW-19 was that he knew Yusuf
(PW-6) and Sitaramulu (A-6). One day before 9.30 a.m. before the alleged
incident, eight accused persons were seen standing near the shop of Accused
No.1 which was 50 km away from the shop of A-6 Siddaramyiah beneath the
tree. A-6 was telling other accused persons that on the next date Yousuf
was going out of town and other accused had to do their work. Thereafter
they dispersed. On the next day, this witness (PW-19) came to know that
there was a robbery in which Yousuf was robbed of Rs.3.60 Lakh. The
learned Sessions Judge, after analyzing the testimony of PW-19, as well as
PW-6 on this aspect came to the conclusion that the charge of conspiracy
was not proved inasmuch as, the mere fact that eight accused persons were
gathered on the previous day could not automatically connect to the
commission of alleged crime. The relevant discussion in the judgment of the
learned trial court on this aspect reads as under:

“The requirement of criminal conspiracy, there must be an
existence of an agreement to commit an offence. The conspiracy
can be proved by the direct evidence though the same is rarely
available, or by circumstantial evidence. As could be seen from
the requirement of law there must be an agreement between the
accused to commit an unlawful act lead to inference of
conspiracy. The evidence of this Allabakash is not corroborated
with any other evidence. He never speaks about anything unlawful
act to be done and anything about an agreement between the
parties with regard to the commission of an unlawful act.
Necessary ingredients are not established by leading the evidence
of this PW-19 during the course of cross-examination he has
admitted that the accused were talking in open space. The publics
were passing besides the accused. He did not hear what they were
talking. He did not suspect about the accused. Two months after
the incident the police came and enquired him. Seetharama A-6 is
a merchant and good man. On that day whatever the accused were
talking was not in respect of any wrongdoing. These answers of
this witness during the course of cross-examination clearly gives
goodbye to the theory of criminal conspiracy. Therefore, the
materials available on record are not sufficient to establish
that there was a criminal conspiracy among the accused in order
to commit the offence.”

 

9. It would be pertinent to mention that even the High Court has not
discarded the aforesaid findings of the trial court on the charge of
conspiracy. As would be seen hereinafter, the reason for convicting five
accused persons, out of eight who stood trial, is that testimonies of other
witnesses who were in the bus and had purportedly seen the said accused
persons. For want of establishment of charge of conspiracy A-6 and A-4 are
let off by the High Court also as they were not named by any of the eye
witnesses. We are, therefore, quite in agreement with the conclusion of the
trial court that charge of conspiracy under Section 120-B of IPC has not
been proved.

10. In so far as the charge under Section 397 IPC is concerned, the
prosecution had relied upon the testimony of PW-1 ( conductor of the bus),
PW-2 (driver of the bus), PW-6 Yusuf (one of the victims), PW-7(owner of a
hotel), PW-9 (cleaner in a tempo), PW-16. Testimony of PW-9 has not been
believed either by the trial court or the High Court and therefore no
discussion about his deposition is necessitated.

11. PW-1 who is the conductor of the bus and an eye witness was the
complainant as well. Apart from narrating the incident of dacoity, the
material part of his testimony is that he had identified A-1 and A-5 and
their overt acts. As per him, six persons boarded the bus near the
Bailmerchad Cross and accused 1and 5 came near the driver. A-1 assaulted
and threatened him with a sickle and asked him to stop the bus. PW-1 while
deposing in Court identified A-1 and A-5 who had snatched his cash bag.

12. PW-2 (driver), likewise, deposed that he was hit from the back side
by hand and a chopper was put on his neck. When he turned around he saw it
was accused No.2 who hit him with his hand and put a chopper on his neck
and as a result he suffered an injury. According to him he identified A-2.

13. PW-6 who is the main victim and one of the passengers deposed to the
effect that he was carrying with him cash of Rs.3,53,000/-. He boarded the
bus which was forcibly stopped by two persons who came near him and put a
dragger on the left side of his chest. These two persons were A-1 and A-3
whom he identified.

14. PW-7 is owner of a hotel and according to him, accused persons had
come and stayed there and he identified two of them, namely, A-1 and A-2
(at this stage we would like to point out that even the High Court has not
returned the finding of guilt by referring to his testimony which in any
case is not connected with the actual commission of offence).

15. PW-15(Udayakumar) is a Sales Executive Manager in Hubli Pipe
Corporation. He deposed that he was also in the bus and was assaulted by a
knife on his left hand wrist by A-7 and his bag was snatched away. When A-7
took his bag he stood up but was again assaulted. He identified two
persons, namely A-7 and A-8 stating that A-7 caused injuries on him by
knife and A-8 also assaulted him.

16. Apart from relying upon the aforesaid eye witnesses who deposed
against thee accused persons at the time of trial, the prosecution also
stated that after the arrest of the accused persons Test Identification
Parades (TIPs) had been conducted. In these TIPs, PW-2, PW-6 and PW-16 were
called and participated who identified A-2, A-1 and A-3, as well as A-7 and
A-8 respectively.

17. The trial court after analyzing the testimony of the aforesaid
witnesses refused to believe them. Pertinent observation which is made by
the trial court in this behalf is that when the statements of these
witnesses were recorded under Section 161,Cr.P.C., at the time of
investigation by the police officer, none of these witnesses stated that
they had seen the accused persons and were in a position to identify them
if they were brought before them. The trial court referred to Karnataka
Police Manual and observed that the investigation was not done in
accordance with the procedure for identifications contained therein. His
analysis in this behalf reads as under:-

“After seeing the above statement the victims of the incident,
before the police, it is clear that none of the victim has given
any clue to identify the accused persons. Now the question is
what are the materials available with the police to search these
accused has to be looked into. Here I would like to refer the
Karnataka Police Manual, where a chapter is provided, which
gives the procedure for identifications. They have to ascertain
the kind of light, which was present at the time of incident.
The details of the opportunities of seeing the accused at the
time of offence. Anything outstanding in the features or conduct
of the accused which impressed him (identifier). The distance
from which he saw the accused and the context of time during he
say the accused. It is mandatory on the part of the I.O. to
record in the case diary, the description in detail with the
above said ingredients. As could be seen from the case diary
available on record there are no materials placed by the
prosecution to show that they had identification feature of the
accused with them after the incident. Therfore, there is a lapse
on the part of the investigating agency to collect the material
information, which gives to the prosecution an opportunities to
identify the accused. But they have failed to establish the
identify of the accused persons of this case. Therefore, as
could be seen from the statements of eye witnesses who had
suffered injuries in the hands of the Dacoits who had an
opportunity of seeing the accused with very close range have not
given any description of the identification feature of the
accused.

The next stage comes where the I.O. gets an opportunity of
examining the witnesses who have said to have seen the accused
persons. The important witnesses are PW-8 Shankrappa and PW-9
Khaja Pasha. Their statements were also recorded by the police.
The said Khaja Pasha who is the Tempo cleaner, who says that he
came near Gorkal cross at about 7.00 a.m. there 6 persons were
boarded his tempo. Three of them were not wearing chappals and
they were talking in telgue, aged about 25 to 30 years, wearing
pant and shirt and holding a plastic bag and legs of the persons
were with full of mud. They were also taken the tickets and got
down in Gilleasugur. Again they boarded to Mantralayam bus. He
says that if the person were shown to him he can identify the
persons. Therefore, this witness had an opportunity to see the
accused persons from very nearer point and he was capable of
giving the identification feature of the accused, which were not
recorded in his statement by the I.O.”

 

18. The trial court also found serious loopholes in the manner in which
investigation was carried out, leaving serious flaws and the discussion
exposing these flaws in the judgment of the trial court which reads as
under:

“In this case the prosecution has lost several valuable
opportunities where they could very good material for finding out
those culprits. I have already discussed above that the
fingerprints of the accused persons were available on the handles
of the bus fixed near the door. These fingerprints were not
lifted by the I.O. for comparing with the fingerprints of the
accused persons. Secondly, the footprints of the accused persons
were available in the land at Kurdi village they were also not
collected by the agency in order to compare them with the accused
persons. The prosecution should have collected some important
identification features in order to fix the accused in the
offence. The materials aspects are absent then how he can connect
this accused to the crime is a big question. Therefore, the
circle is incomplete. The link to connect the accused with the
crime has lost at Mantralayam. Because all of a sudden the I.O.
visits to Swagat Lodge and verified the register and he gets
suspicion in the name of one Timmareddy. The contention of the
defence Advocate is that Mantralayam is such a place, where the
passangers come from various places, where the passengers come
from various places, and there is no direct bus facility to go
their place. Therefore, they got down at Mantralayam and take the
rooms for bathing and performing the Pooja. After completion of
pooja, immediately they will vacate the rooms and they continue
their travel to their respective places. Can we cannot rule out
and we have to differentiate from such type of passengers with
the accused. Then, how the I.O. came to know that Timmareddy was
one of the accused persons, who gave the information to him. As
could be seen from the eye witnesses have given any
identification feature with regard to the accused. Even during
the second stage of the investigation neither the Shankarappa nor
Khaja Pasha have given identification feature of the accused.
Then the I.O. says that an information has given the clue of the
accused. The only he will capable to give the clue with regard to
the accused persons. Under such circumstances, there is
incomplete investigation and without that link we cannot connect
the crime with the accused and here the prosecution has
completely failed to establish the link of the offence with the
accused. Therefore, the decision relied upon by the prosecutor
are not applicable to the present circumstances of the case at
hand. Because the connecting link is lost in order to identify
the accused.”

 

19. In so far as recovery on the basis of purported voluntary
statement of the accused persons is concerned, the trial court found that
while recording alleged voluntary statement of the accused persons,
procedure as laid down under Sections 165 and 166 of the Code of Criminal
Procedure was not followed. The accused from outside the State were
arrested within the limits of some other police station without following
the procedure under Section 166 Cr.P.C. It is further pointed out that when
the accused persons were brought in Manvi Police Station and their
voluntary statements were allegedly recorded, the police committed major
irregularities which were incurable. According to the prosecution the
voluntary statements were recorded on 29.10.2004 in respect of Timmareddy,
Venkateshagouda, T.Laxman, Anjaneyallu, P.Devanna by PW-23. PW-23 says that
after the arrest of the above said accused persons he requested the
Tahsildar Manvi to provide 2 official panchas at 4.00 A.M. In the
meanwhile, he recorded the voluntary statements of A-1 to 5 as per Ex.p-66
to P-70. Thereafter, on the basis of the said voluntary statements and in
the presence of 2 official panchas deputed by the Tahsildar Manvi, he
proceeded to recover the cash from their houses under the panchanamas.

20. The aforesaid procedure is commented by the trial court in the
following manner:

“Now the question that would arise is whey the police
officer has requested the Tahsildar to provide Government
official to act as panchas. What is the reason for taking the
Government official to act as panchas. According to the
procedure, the police officer has to take the assistance of
local people as panchas, and he must give reasons if he does not
take the assistance of local people. Before recording the
voluntary statements he requests the Tahsildar for giving
panchs. How he came to know whether these accused persons would
give voluntary statements regarding recovery of the cast. Then o
the basis of those voluntary statements the amount was recovered
from the respective houses and subsequently, the amount was
recovered from other accused persons as per their voluntary
statements. The I.O. has not stated about the details of the
panchnamas under which the recovery was made. It has to be
proved by the prosecution by leading cogent evidence.”

 
21. On the basis of the aforesaid analysis, the trial court did not
believe the version of eye witnesses, faulty TIP as well as legality of the
recoveries at the instance of the accused persons. With this discussion,
the trial court concluded that even if there was some incriminating
material against the accused persons that was not sufficient to prove the
guilt of the accused persons beyond reasonable doubt as cogent evidence was
not produced and the investigation was faulty. This resulted in the
acquittal of all the persons by the trial court.

22. Coming to the judgment of the High Court, we find that the High Court
has referred to the testimonies of PW-1,2 ,6, 7 and 15 briefly and
highlighted the fact that they had identified, between themselves, A-1,A-
2,A-5,A-7 and A-8. Since these are the eye witnesses who had identified
these five accused persons, the trial court failed to consider the
statements of these witnesses and a generalized finding was recorded to
the effect that the accused persons had not been identified. Primarily, on
this ground and believing the aforesaid persons’ version as eye witnesses,
the High Court has convicted these five accused persons.

23. Mr. K.L. Janjani, learned counsel appearing for the appellants
questioned the wisdom of the High Court in arriving the aforesaid finding
by making following submissions:

(1) The date of alleged offence was 8.10.2004 and the accused persons
were arrested on 28.10.2004. However, first TIP was conducted on 9.11.2004
and second TIP on 30.1. 2005. Therefore, this abnormal delay in conducting
the TIPs, that too when the accused persons were not previously known to
the alleged eye witnesses rendered the entire exercise of TIPs as invalid
to which no credence could be given. He referred to few judgments in
support: In
Hari Nath vs. State of U.P. 1988 (1) SCC 14 wherein reliance was placed on
the following observations:
“Even on the premise that there was no such prior acquaintance,
the evidence establishing the identity of the culprits assumes
particular materiality in a case, as here, of a dacoity occurring
in the darkness of the night. The evidence of the test
identification would call for a careful scrutiny. In a case of
this kind where the eyewitnesses, on their own admission, did not
know the appellants before the occurrence, their identification
of the accused persons for the first time in the dock after a
long lapse of time would have been improper. In Halsbury’s Laws
of England (Fourth Edn., Vol. 11, para 363) this passage occurs
and is worth recalling:
“It is undesirable that witnesses should be asked to identify a
defendant for the first time in the dock at his trial; and as a
general practice it is preferable that he should have been placed
previously on a parade with other persons, so that potential
witnesses can be asked to pick him out.”

 

 

Other judgment relied upon was on Rajesh Govind Jagesha vs. State of
Maharashtra 1999 (8) SCC 428 wherein the proposal of law is discussed as
under:

“This Court in State of A.P. v. M.V. Ramana Reddy (Dr) held that
where there is unexplained delay in holding the identification
parade, the evidence of the prosecution regarding identity of an
accused cannot be held absolutely reliable and in such a case the
accused is entitled to the benefit of doubt. The explanation for
delay in holding the identification parade offered by the
prosecution in the instant case is not trustworthy. The non-
availability of a Magistrate in a city like Bombay for over a
period of five weeks from the date of the arrest of Accused 1 and
2 and three weeks from the arrest of Accused 3 and 4 cannot be
accepted. It is not denied that scores of Magistrates are
available in the city of Bombay and that the investigating agency
was not obliged to get the parade conducted from a specified
Magistrate. The High Court was not justified in holding that the
parade could not be held early on account of alleged difficulties
of the Special Executive Magistrate. It was not for the defence
to prove that the parade held was suffering from legal
infirmities because, admittedly, the onus of proof in criminal
case never shifts as the accused is presumed to be innocent till
proved otherwise, beyond all reasonable doubts, by the
prosecution. In cases where a person is alleged to have committed
the offence and is not previously known to the witnesses, it is
obligatory on the part of the investigating agency to hold
identification parade for the purposes of enabling the witnesses
to identify the person alleged to have committed the offence. The
absence of test identification may not be fatal if the accused is
known or sufficiently described in the complaint leaving no doubt
in the mind of the court regarding his involvement. Such a parade
may not be necessary in a case where the accused person is
arrested on the spot immediately after the occurrence. The
evidence of identifying the accused person at the trial, for the
first time, is from its very nature, inherently of a weak
character. This Court in Budhsen v. State of U.P. held that the
evidence in order to carry conviction should ordinarily clarify
as to how and under what circumstances the complainant or the
witnesses came to pick out the accused person and the details of
the part which such persons played in the crime in question with
reasonable particularity. The test identification is considered
as a safe rule of prudence for corroboration. Though the holding
of the identification proceedings may not be substantive
evidence, yet such proceedings are used for corroboration
purposes in order to believe or not the involvement of the person
brought before the court for the commission of the crime. The
holding of identification parade being a rule of prudence is
required to be followed strictly in accordance with the settled
position of law and expeditiously. The delay, if any, has to be
explained satisfactorily by the prosecution.”
(2) His next submission was that PW-1 and PW-7 had identified A-
1 and A-5 in the court and PW-7 had identified A-1 and A-2 in the court.
However, they were never called at the time of conducting TIP.

(3) In respect of all these eye witnesses, namely PW-1,PW-2, PW-
6, PW-7 and PW-15 his submission was that the High Court had simply taken
into account their version in the examination-in-chief and did not discuss
the cross-examination at all, which exposed the falsity of their statement.

(4) It was further argued that PW-2 (driver) had categorically
stated that the faces of all these persons who boarded the bus gathered
with kerchief and since their faces were hidden there was no question of
identifying these persons by any of the witnesses.

(5) It was also submitted that there is no discussion in the
judgment at all as to how the trial court went wrong and the reasons given
by the trial court particularly with reference to Karnataka Police Manual
and faulty investigation are not dealt with at all.

(6) Another submission of the learned counsel was that at the
time when their statements were recorded under Section 161,Cr.P.C. none of
these witnesses stated that they were in a position to identify the
culprits. There was, thus, clear violation of the procedure contained in
Karnataka Police Manual and it was a clear case of improvement by these
witnesses at a later stage either in belated TIPs or before the court when
they were examined as witnesses.

24. Mr. C.B.Gururaj, learned counsel appearing for the State referred to
the testimonies of the aforesaid eye witnesses and argued that the eye
witnesses were believable and the conviction based on their testimony was
just and legal. In a sense, he relied upon the discussion contained in the
judgment of the High Court returning the finding of guilt against the
appellants.

25. After considering the respective submissions and going through the
record, we are inclined to accept this appeal as we are of the opinion that
High Court has committed grave error in recording the conviction solely on
the basis of the statement of the so called eye witnesses, and wrongly
believing their version. From the discussion contained in the judgment of
the High Court, it becomes apparent that except stating what these
witnesses have mentioned in their examination-in-chief, no further
discussion is there in the judgment and the testimony is of all these
persons are believed as gospel truth. The High Court was duty bound to
consider their testimonies in entirety i.e. along with the cross-
examination in order to find out their truthfulness and to see whether
their version in examination in chief has remained unshaken and worthy of
credence. No such exercise is done at all. No doubt, the trial court has
indulged in wholesome discussion while discarding the testimony of eye
witnesses. Fact remains that while doing so, the trial court discussed the
infirmities in the procedure adopted which led to the disbelieving of all
these witnesses. The discussion of the trial court adversely commenting
upon the faulty procedure and imperfect investigation is completely ignored
and sidelined by the High Court.

26. In so far as eye witnesses are concerned, as pointed out above, the
High Court has accepted his truthfulness and relied upon the testimonies of
PW-1 (conductor who had identified A-1 and A-5), PW-2 (the driver who had
identified A-2), PW-6 (victim who had identified A-1 and A-3) and PW-15
(passenger who had identified A-7 and A-8). It is stated by the High Court
that these witnesses stood by their statement, their evidence is
unimpeachable and there are no discrepancies in their evidence. However, as
pointed out, these observations are on the basis of examination in chief of
these witnesses without taking into consideration their cross-examination.
In so far as PW-1 is concerned, in his cross-examination he has accepted
the faces of the two persons covered with kerchief. If that was so, he has
not at all explained as to whether their faces were uncovered at any point
of time how and when he was able to see their faces. He did not explain in
his statement recorded under Section 161 Cr.P.C. as to why he did not state
he would be in a position to identify two persons. In that statement, he is
conspicuously silent about having seen two persons.

27. Likewise, in so far PW-2, driver is concerned, apart from the features
pointed out qua PW-1 which apply in his case, he mentioned in his
examination in chief that “somebody hit me from back side by means of hand.
They put chopper on neck from back side.” In his cross-examination he not
only accepted that when he was hit on the back of the neck, he did not
shout, he further specifically stated that “there was no chance for me to
see back side since the vehicle was in a running vehicle. The vehicle was
moving at the speed of 20 kms. I did not turn back till the accused get
down from the bus.”

28. In so far as PW-6 is concerned, he has allegedly identified A1 and A-
3. Out of these two i.e. A-1 is identified by PW-1 as well. However, as
stated above PW-1 mentioned that face of A-1 was covered. Again, he had not
explained as to under what circumstances he could identify these accused
persons. PW-15 was another passenger in the bus who has identified A-7 and
A-8. He, inter-alia, has stated that two persons had knife on the chest of
PW-6 and snatched his bag and came towards him. He was assaulted by means
of knife on his left hand wrist and his bag was also snatched. The two
persons who snatched the bag from PW-6, according to PW-6 were A1 and A-3.
However, PW-15 identified two other persons namely A-7 and A-8. That apart
he has also admitted that one of them had covered his face that one person
has closed his face upto nose by means of the cloth. In these
circumstances, how he could identify that person is not explained.

29. There is another important aspect which cannot be lost sight of,
namely as per PW-1 the faces of all the accused persons were covered with
kerchief. It is not at all stated by any of the witnesses as to when these
persons removed those kerchief and their faces became naked which could be
seen by these witnesses. PW-1 was subsequently confronted with the
statement under Section 161, Cr.P.C. to this effect that in the cross-
examination he accepted that he made the statement. Therefore, it was for
him to clarify as to under what circumstances he could see the faces of A-1
and A-5 on the same ground how their faces could be seen by other
witnesses, remains a mystery which is not explained by the prosecution.

30. In this backdrop, the flaws in the investigation pointed out by the
trial court become crucial. Curiously, High Court has not even adverted to
those flaws.

31. We are, therefore, of the opinion that the judgment of the High Court
holding the appellants guilty of the offence is unsustainable. The same is
accordingly set aside. This appeal is allowed holding that charge against
the appellants under Section 397 IPC read with Section 120-B has not been
proved beyond reasonable doubt.

32. The appellants are entitled to be released forthwith and it is
directed accordingly.

 
………………………………….J.
(Surinder Singh
Nijjar)

 

 
………………………………….J.
(A.K.
Sikri)
New Delhi,
April 21, 2014

 

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