State of Karnataka  INSC 1291 (27 July 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.629
OF 2005 Ramesh ... Appellant Versus State of Karnataka ... Respondent
Accused No.3 before the learned Trial Court is before us aggrieved
by and dissatisfied with a judgment and order dated 17.12.2003 passed by the
High Court of Karnataka at Bangalore in Criminal Appeal No.1820 of 2003
modifying his sentence from death to rigorous imprisonment for life arising out
of a judgment dated 11.11.2003 passed by the I Additional District and Sessions
Judge, Bangalore Rural District, Bangalore in SC No.73 of 2000.
PW3, Manjusetty was the driver of a truck bearing Registration
No.AP-09-4948. Deceased Shivashankar (Shekar) was the cleaner in the said
truck. Accused No.5 Jayamma is said to be a member of a gang of dacoits
comprising of accused Nos. 1 to 4 being Krishna, Manjunath, Ramesh (appellant)
and Shivalinga. The truck belonged to one Natraja Transport Company having its
office at Prashanth Nagar, Bangalore.
A First Information Report was lodged by PW2, Puttaswamy alleging
that on 24.12.1998 when he had gone to Kunigal for work, he received a call in
his mobile phone at about 7.45 am from his office informing him that the
aforementioned truck had been stolen by some persons. He was asked to look into
the matter. He with Driver Eshwara went in search of the said truck in a Maruti
Van bearing Registration No.KA02 7055. Near a factory which is on the side of
highway No.48 at Kunigal, he found that some people had gathered by the side of
the road. Upon enquiries made by them, they came to know that a pair of chappal
was lying at some distance away from the road. They proceeded further and found
one `pant' and two undergarments. Proceeding further they found blood stains
and a severed hand of a man on the field. It now stands established that the
same was that of the driver of the lorry. They thereafter went towards Solur,
Nelamangala, Shivagange and Kudur. On the way from Kudur to Shivagange, they
again 3 found that some people had gathered near Thoreramanahalli and upon
enquiries made, they were informed that one dead body was lying at some
distance. They found the dead body to be that of the cleaner, Shekar. They
informed the owner of the vehicle thereabout. They furthermore went in search
of the truck. They came to learn that the driver of the truck, Manja had been
admitted to Mallige Medical Centre at Bangalore City whereupon they visited the
nursing home and found him to be in a seriously injured condition, his left
hand having been severed. He was instructed by the owner of the truck to lodge
a complaint with the police pursuant where to a First Information Report was
lodged. It was registered under Section 302, 392 and 307 of the Indian Penal
The prosecution case, as disclosed by PW3 is as under :
was driving the said truck on 22.12.1998 with some goods to Bhadravathi, he
visited his sister's house at Marishetty Halli, village in Channaryapattana
Taluk. He left his sister's village at 7.30 pm in the night on 23.12.1998. He
came near the Johnson factory at about 10 pm. The road was under repair. He saw
accused No.5 Jayamma standing by the side of the road. She came to him by
making a signal with her hand whereupon he sent the cleaner Shivashankar to
enquire as to what was the matter about. He 4 returned back after speaking to
her stating that she intended to go to KMDL factory. She had asked him to give
her Rs.50/-. As PW3 had no money with him, he borrowed the said sum from the
cleaner, got down from the truck and proceeded towards the place where she had
led him towards the field. When apparently they were having sex, accused No.1
to 4 came from behind and suddenly caught hold of him.
accused No.1 is said to have inflicted an injury on the backside of his neck
with a hatchet. He tried to run away. He was chased by the other accused
persons. They again tried to hit him on his neck. However, he raised his hand
to protect his neck as a result whereof, the blow fell on his left hand
resulting in severing of his left palm. He became unconscious. He regained his
consciousness at around 3.30. He felt thirsty. When he tried to drink water
from a nearby dhaba, it came down through his neck. He went by the side of the
road to stop some vehicle. He also noticed that the truck was missing. He lost
his consciousness again. He regained his consciousness at Mallige Nursing Home
at Bangalore. He was in hospital for about 20 days.
called to the police station to identify one of the culprits and he identified
the appellant. Fifteen days thereafter he was again called to the police
station and found appellant Jayamma there. She was identified to be 5 the woman
who had actually made signal to stop the truck on the way.
days thereafter he was again called to the police station and found accused
No.2 to be present there. He, however, could not identify accused Nos.1 and 4.
Admittedly, no identification parade was held. It was alleged that
from the truck, a tape recorder, one watch, two tyres, one jack and one
tarpaulin with a rope was stolen. Those articles were said to have been
recovered at the instance of the accused. At the instance of the appellant, a
blue coloured tarpaulin was said to have been recovered from PW4.
The place of occurrence is said to be the Johnson factory which is
situated at a distance of three kilometers ahead of Kunigal as one proceeds
towards Bangalore. Near the said factory, there was a Dhaba on the left side. A
little ahead, there was another dhaba on the right side. Behind the dhaba, on
the left side there are agricultural fields. The area where the incident took
place is known as Karikal Gudda cross. There were lights in the Johnson
factory. PW3, in his evidence, stated that near the place of occurrence, only
he, Shivashankar (the cleaner) and accused No.1 to 5 were present. He removed
his pant and chappal. Accused No.5 removed her undergarments for having illicit
sex. The accused had caught hold of him 6 from behind. He allegedly had
conversation with them as to who else were in there in the lorry and as to
where he had been going. The staid place is said to be at a distance of about
100 ft. from the road. Ragi crops were standing in the field, when the assault,
in the manner stated, took place.
No.1 Krishna was said to have been holding a Machu. Accused No.4 was holding a
chaku. Accused No.2, however, was unarmed.
During the course of investigation whereas at the instance of the
appellant, the tarpaulin was recovered from PW4, the jack, tape recorder and
two tyres were stated to have been recovered at the instance of accused No.1
from different persons.
Relying on or on the basis of the statement of PW3 as also the
recovery of the said articles, a judgment of conviction and sentence was
recorded. Death sentence was awarded to accused No.1 to 4. Accused No.5,
however, was awarded life imprisonment. All the accused were furthermore convicted
under Section 307 of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for 10 years.
On appeals having been preferred by the accused, the same were
allowed in part and the death sentence awarded against respondent Nos.1 to 4
were reduced to life imprisonment.
This appeal has been filed by the appellant who was accused No.3
Ms. Deepshikha Bharati, learned amicus, appearing on behalf of the
appellant, would submit that the place of occurrence being about 400 meters to
500 meters from the Johnson factory and the appellant being unknown to the said
PW3, it was impossible to identify him in a dark night. The purported
substantial evidence whereupon reliance has been placed by the learned Sessions
Judge as also the High Court was not such which would lead to the conclusion
that the prosecution case was proved beyond all reasonable doubts.
Mr. Mishra, learned counsel appearing on behalf of the State,
however, supported the impugned judgment.
noticed heretobefore that no test identification parade was held. In the First
Information Report, the appellant was not named. We, however, are conscious of
the fact that PW2, Puttaswamy, when lodged the First Information Report, might
not have received the details of incident from PW3 as he was undergoing
treatment in the nursing home. According to PW3, however, he came to know the
names of all the assailants during the incident as one would call the other by
his name. In his statement before the 8 police, however, admittedly he did not
disclose the name of the appellant.
enough, according to PW30, the Head Constable, PW23, and another constable
produced accused No.5 before him at about 3.45 pm on 12.1.1999. She was
arrested and interrogated. It was on that day itself, he called PW3 who
identified her whereupon his further statement was recorded. The said
prosecution witness, however does not state that even accused No.5, on
interrogation, disclosed the name of accused No.s 1 to 4.
No.3 was arrested on 9.2.1999. It is not in dispute that he is a taxi driver.
He was kept in custody during the night. On the next day, allegedly, he was
taken to the house of one Ibrahim who is said to have purchased from him the
tarpaulin in question.
PW4, in his evidence disclosed that the tarpaulin purchased by him
was blue in colour. PW2 and PW3, in their evidences, however, stated that the
tarpaulin which was used in the truck was of mash green colour. Yet again when
the tarpaulin was produced, its colour had faded but despite the same, it was
identified as the same tarpaulin.
We have noticed hereinbefore that according to PW3, he was called
upon to identify the accused No.3 first in the police station. He, after three
weeks, was again called to the police station to identify accused No.5.
however, as indicated hereinbefore, in his statement stated the date of arrest
of accused No.5 as 12.1.1999. The incident having taken place on 24.12.1998 and
PW3 being in hospital for at least 20 days and he having been called to police
station three weeks thereafter, it is beyond comprehension as to how he could
be asked to identify accused No.3 first and then accused No.5, although accused
No.5 was arrested on 12.1.1999 and the appellant was arrested on 9.2.1999. PW4,
Ibrahim, was the owner of hotel. He knew the appellant No.3 as he used to take
his meals in his hotel.
statement, the appellant was a regular customer as he had been transporting
sand in his truck regularly. He was examined on 19.11.2002.
to him, about four years prior thereto, he had asked for some loan stating that
he had no money to pay for food. When, however, he expressed his inability to
pay the said sum stating that he had no money, he allegedly borrowed the said
amount from another person on pledging a terpauline.
and a half months, he came with the Kudur police and asked him to give his
money back. At the instance of the police, the terpauline was produced.
Measurement of the terpauline was taken. A panchnama was prepared. What was the
measurement of the terpauline, however, has not been disclosed. The purported
measurement of the terpauline said to have been stolen had not been verified
with the recovered one. None of the 10 prosecution witnesses denied or disputed
the fact that appellant was a driver.
appears rather strange that Shanthakumar PW6 would be panch witnesses for
recovery of MO.12 although he had advanced the amount of Rs.500 to PW4. If the
tarpauline was pledged to him, there was no reason as to why it should be
recovered from PW4. The special features of the tarpauline which could be
identified by PW2 and PW3 have not been stated. Tarpaulines are common goods
being available in the market. It has also been accepted by Shanthakumar, PW6.
In view of the fact that other accused are not before us, we are of
the opinion that it is difficult to uphold the judgment of conviction and
sentence against the appellant herein. The place where the assault took place
was said to be at a distance of 400 to 500 meters from the factory. Not only
the place of occurrence was agricultural fields as stated by PW3 but the crop
had also been standing thereon.
If accused No.5 was arrested first and accused No.3 one month
thereafter, it does not stand to any reason as to why PW3 would be called to
identify accused No.3 first which according to him took place 20 days after his
discharge from the hospital and 15 days thereafter he was again summoned to
identify accused No.5.
We have noticed hereinbefore the respective dates of arrest of
accused No.5 and accused No.3 respectively. It is difficult to conceive that
accused No.5 would still be available so that the Investigating Officer could
ask the witnesses to come to the police station. There is nothing to show that
she was in custody of the police for more than 30 days. A presumption must be
drawn that by that time, she was in judicial custody. It is also wholly
unlikely that names of all the accused person would be disclosed during
commission of the offence by one another. It furthermore appears to be somewhat
unusual that although PW3 and accused No.5 were caught while they were
indulging in illicit sex and all of them came from behind and the first attack
was on the back of his neck, still conversations would not only took place by
and between PW3 and the accused persons; the former even in that condition
would be able to follow the same.
Mr. Chaudhary would submit that in all cases, it is not necessary
to hold test identification parade. That may be so. In a case of this nature,
the test identification parade would have been meaningless as appellant were
shown to PW3 in the police station. Appellant was shown to PW3 at the police
station. He was identified in court also. Reliance has been placed by Mr.
Chaudhary on Malkhansingh & Ors. V. State of M.P. [(2003) 5 SCC 746],
wherein this Court opined :
"The evidence of mere identification of the accused person at the trial
for the first time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is accordingly considered a safe rule
of prudence to generally look for corroboration of the sworn testimony of
witnesses in court as to the identity of the accused who are strangers to them,
in the form of earlier identification proceedings.
of prudence, however, is subject to exceptions, when, for example, the court is
impressed by a particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the Code of Criminal
Procedure, which obliges the investigating agency to hold, or confers a right
upon the accused to claim, a test identification parade. They do not constitute
substantive evidence and these parades are essentially governed by Section 162
of the Code of Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in court. The weight
to be attached to such identification should be a matter for the courts of
fact. In appropriate cases it may accept the evidence of identification even
without insisting on corroboration."
furthermore held :
is no doubt true that much evidentiary value cannot be attached to the
identification of the accused in court where identifying witness is a total
stranger who had just a fleeting glimpse of the person identified or who had no
particular 13 reason to remember the person concerned, if the identification is
made for the first time in court."
Judged by the aforementioned legal principles laid down therein,
in our opinion, the identification of appellant PW3 in court cannot be held to
has also been placed by Mr. Chaudhary on a judgment of this Court in Asharfi
& Ors. V. The State [AIR 1961 All. 153], wherein it was held that
identification by only one person may not be relied upon stating :
only one identification cannot eliminate the possibility of the pointing out
being purely through chance and for this reason is insufficient to establish
& Anr. V. State of Rajasthan [(2007) 10 SCC 175], a test identification had
been held in presence of a Civil Judge and a Judicial Magistrate. The said
decision, therefore, is not applicable.
Ravindra Laxman Mahadik v. State of Maharashtra [(1997 Criminal Law Journal
3833) in a case involving Section 395 of the Code of Criminal Procedure, it was
"I find merit in Mr. Mooman's submission that it would not be safe to
accept the identification evidence of Manda Sahani. Manda Sahani in her
examination-in-chief stated that on the place of the incident, there was no
light. In her cross- examination (para 6) she stated that it was dark at the
place of the incident but, slight light was emanating from the building situate
on the shore.
distance between the building and the place where Manda Sahani and her husband
were looted has not been unfolded in the evidence. The learned trial Judge has
observed that the evidence of Vinod Sahani is that the incident took place at a
distance of about 100 ft. from the Gandhi statute, where the meeting was held.
What he wanted to convey was that hence there must have been light at the place
of incident in my view, on the face of the definite statement of Manda that it
was dark as there was only slight light, and bearing in mind that the incident
took place at 9.30 p.m. in the month of February, 1992, it would not be safe to
conclude that there was sufficient light on the place of the incident enabling
Manda Sahani to identify the appellant."
decision of the Allahabad High Court in Asharfi lal (supra) was followed
& Ors. V. State of Kerala [AIR 1979 SC 1127], this Court held :
is well settled that where a witness Identifies an accused who is not known to
him in the Court for the first time, his evidence Is absolutely valueless
unless there has been a previous T. I. parade to test his powers of
observations. The Idea of holding T.
parade under Section 9 of the Evidence Act is to test the veracity of the
witness on the question of his capability to identify an unknown person whom
the witness may have seen only once. If no T. I. parade is held then it will be
wholly unsafe to rely on his bare testimony regarding the identification of an
accused for the first time in Court."
As identification of PW3 is highly doubtful, in our opinion,
having regard to the nature of other evidences brought on record by the State,
i.e., purported recovery of a tarpauline by itself cannot be said to be
sufficient to convict the appellant for a charge of such grave offence.
The appeal is allowed. The appellant should be set at liberty
forthwith unless wanted in connection with any other case.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]