NOORAHAMMAD AND ORS Vs. STATE OF KARNATAKA
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 161 - Examination of witnesses by police
Section 314 - Oral arguments and memorandum of arguments
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 324 - Voluntarily causing hurt by dangerous weapons or means
Section 353 - Assault or criminal force to deter public servant from discharge of his duty
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 412 of 2006, Judgment Date: Feb 02, 2016
|NON-REPORTABLE |
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 412 OF 2006
NOORAHAMMAD AND ORS ………APPELLANTS
Vs.
STATE OF KARNATAKA ……RESPONDENT
J U D G M E N T
V.GOPALA GOWDA, J.
This criminal appeal by special leave is directed against the impugned
judgment and order dated 02.06.2005 passed in Crl. A. No. 184 of 1999(A) by
the High Court of Karnataka at Bangalore whereby partly allowing the appeal
filed by the State, the High Court has set aside the acquittal order passed
by the Trial Court and convicted the appellant nos. 1 to 4 for the offences
punishable under Sections 304 part II, 324, 353, 379 and 411 read with
Section 34 of Indian Penal Code, 1860 (for short the “IPC”). However, it
has upheld the acquittal of all the four appellants for the offence
punishable under Section 24(e) of the Karnataka Forest Act.
Brief facts are stated hereunder to appreciate the rival legal contentions
urged on behalf of the parties:
The case of the prosecution is that on 27.06.1995, at around 3.00 am, the
informant party, comprising of about 10 forest officials in a jeep,
intercepted a bullock cart on Yallur-Nitagikoppa Kacha Road. It was alleged
that the appellants herein were present on the said cart and transporting
stolen teak wood log clandestinely and illegally, without a pass or permit.
It was further alleged that an altercation ensued and Papasab (accused-
appellant no.3) attacked V.C. Marambid (PW-8), Forest watcher, with a club.
The aforesaid attack resulted in a bleeding injury to PW-8. It was further
alleged that R.L. Patagar (since deceased), RFO and G.B. Nayak (PW-6),
incharge R.F.O. (Plantation Superintendent) at Hangal tried to catch hold
of the remaining accused, when Noorahammad (accused-appellant no.1) picked
up a club from the cart and hit R.L. Patagar on back of the head. It was
further alleged that Allauddin (accused-appellant no.2) also took up a club
and beat R.L. Patagar. Further, Tajusab (accused-appellant no.4) took up
club and beat G.B. Nayak. Thereafter, all the accused left the teak wood
log and escaped in the bullock cart.
On 27.06.1995 at around 8.00 am, FIR No. 213 of 1995 in respect of the
incident was lodged at the instance of one Timmanna (PW-1) at Hangal Police
Station which was recorded by Sub Inspector, Maruti Raoji Shindhe (PW-19).
R.L. Patagar, who was undergoing treatment at KMC Hospital, Hubli, expired
on 28.06.1995 at about 3.00 pm.
During the course of investigation all the four appellants were arrested
from their house at Hullatti village and bullock cart and bullocks used in
the commission of the said offence were also recovered.
The trial was conducted by Additional Sessions Judge, Dharwad for the
offences punishable under Sections 302, 324, 353, 379 and 411 of IPC read
with Section 34 of IPC and Section 24(e) of the Karnataka Forest Act.
During trial, in order to prove its case, prosecution examined 22
witnesses. All the appellants, in their statement made under Section 313 of
the Cr.P.C., denied all the incriminating circumstances appearing against
them in the prosecution evidence. The Trial Court vide its judgment and
order dated 13.11.1998 acquitted all the accused-appellants from the
charges levelled against them.
Aggrieved by the decision of the Trial Court, the respondent-State
preferred Criminal Appeal No. 184 of 1999(A) before the High Court of
Karnataka, at Bangalore urging various grounds and prayed for setting aside
the judgment and order of acquittal passed by the Trial Court.
The High Court vide its judgment and order dated 02.06.2005 has allowed the
appeal in part and convicted all the accused-appellants for the offences
punishable under Sections 304 part II, 324, 353, 379 and 411 read with
Section 34 of IPC. For the offence punishable under Section 304 part II of
IPC read with Section 34 of IPC, all the four appellants have been
sentenced to undergo rigorous imprisonment for a period of 4 years each and
to pay a fine of Rs. 1,000/- each and in default of fine, to undergo
further rigorous imprisonment for a period of 2 months each. No separate
sentences have been awarded for other offences. However, the acquittal of
all the appellants under Section 24(e) of the Karnataka Forest Act has been
left undisturbed by the High Court. Aggrieved by the judgment and order
passed by the High Court, all the four appellants has preferred this appeal
praying for their acquittal.
Mr. M. Khairati, the learned counsel for the appellants contended that the
High Court has failed to appreciate that there is nothing on record to
establish that R.L. Patagar (deceased) died only due to head injury which
was caused by the appellants and therefore, there is no justification to
convict them under Section 304 part II read with Section 34 of the IPC and
sentence them to undergo rigorous imprisonment for the said offence.
He submitted that the High Court has failed to apply the law laid down by
this Court while setting aside the judgment of acquittal passed by the
Trial Court. He placed strong reliance upon the decision of this Court in
the case of Satvir Singh v. State of Delhi[1], authored by me, wherein this
Court has laid down the circumstances in which the High Court, as an
appellate court, would reverse an order of acquittal passed by the trial
court. In that case it has been held by this Court that while the High
Court has full power to review, re-appreciate and reconsider the evidence,
upon which the order of acquittal is founded, but should not disturb the
finding of the trial court if two reasonable conclusions are possible, on
the basis of the evidence on record. He further placed strong reliance upon
the decision of this Court in the case of S. Govindraju v. State of
Karnataka[2], in which Justice S.A. Bobde was one of the companion Judge,
the relevant para 20 of which, reads thus:
“20. It is a settled legal proposition that in exceptional circumstances,
the appellate court, for compelling reasons, should not hesitate to reverse
a judgment of acquittal passed by the court below, if the findings so
recorded by the court below are found to be perverse i.e. if the
conclusions arrived at by the court below are contrary to the evidence on
record, or if the court’s entire approach with respect to dealing with the
evidence is found to be patently illegal, leading to the miscarriage of
justice, or if its judgment is unreasonable and is based on an erroneous
understanding of the law and of the facts of the case. While doing so, the
appellate court must bear in mind the presumption of innocence in favour of
the accused, and also that an acquittal by the court below bolsters such
presumption of innocence.”
It was further contended by the learned counsel that a perusal of the
judgment passed by the High Court shows that the High Court has not
recorded a finding regarding the ignorance of any relevant evidence by the
Trial Court. Further, the High Court has also not recorded a finding to the
effect that some irrelevant evidence has been considered by the Trial Court
while acquitting the appellants. He further submitted that it is also not
found by the High Court that the Trial Court has proceeded on erroneous
understanding of the law or of the facts of the case. Further, it is also
not found that the Trial Court has dealt with the evidence in an illegal
manner. Hence, the finding of the High Court that the judgment of the Trial
Court is perverse is an incorrect finding. He placed reliance upon the
decision of this Court in the case of Sumitomo Heavy Industries Ltd. v.
ONGC Ltd.[3] to elaborate upon the meaning of the expression “perverse”.
The relevant para 42 relied upon by the learned counsel reads thus:
“42. Can the findings and the award in the present case be described as
perverse? This Court has already laid down as to which finding would be
called perverse. It is a finding which is not only against the weight of
evidence but altogether against the evidence. This Court has held in
Triveni Rubber & Plastics v. CCE that a perverse finding is one which is
based on no evidence or one that no reasonable person would have arrived
at. Unless it is found that some relevant evidence has not been considered
or that certain inadmissible material has been taken into consideration the
finding cannot be said to be perverse. The legal position in this behalf
has been recently reiterated in Arulvelu v. State.”
It was further contended that the High Court has incorrectly relied upon
the testimonies of eye witness-G.B. Nayak (PW-6) and V.C. Marambid (PW-8)
to reverse the judgment of acquittal passed by the Trial Court. It has
failed to take note of some inherent inconsistencies, contradictions and
improbabilities in the evidence which make the testimonies of the said
witnesses difficult to be believed. The learned counsel, further, drew the
attention of this Court towards certain circumstances which the High Court
has failed to consider. They are, interalia, as follows:
Timmanna (PW-1), at the instance of whom the FIR was registered, claims to
be the eye-witness to the occurrence. In his evidence, he has claimed that
he knew the name of appellant no.1 i.e., Noorahammad at the time of
incident. However, he has lodged FIR against unknown persons. He has failed
to explain this vital contradiction.
The appellants were arrested on 05.07.1995 i.e., after 8 days from the date
of the occurrence, allegedly on the statement of V.C. Marambid (PW-8) given
to the investigation officer under Section 161 Cr.P.C. There is
considerable doubt as to the correctness of the said statement as PW-8
himself in his evidence, has disowned a part of the same. Therefore, it
cannot be said, beyond any reasonable doubt, that the statement projected
by the prosecution is the statement which was given by PW-8 naming the
appellants.
In view of the fact that the FIR was registered against unknown persons and
even description of the accused was not mentioned, a Test Identification
Parade (TIP) ought to have been conducted so as to inspire confidence about
the identity of the assailants. However, the prosecution has not rendered
any explanation as to why said TIP was not conducted. In such
circumstances, dock identification by the witnesses, after 2 years from the
incident was rightly not relied upon by the Trial Court.
The clubs allegedly used by the appellants to attack the forest officials
should have had blood stains but the same were not sent for forensic
examination.
The appellants were alleged to be carrying valuable teakwood. As per the
prosecution story, after assaulting the prosecution party, they fled away
in the bullock-cart after dropping the teakwood log, which is difficult to
believe.
According to the prosecution story, there were 8-9 forest officials and
they had a jeep with them. Only a few of them were allegedly attacked by
the appellants. When the attackers were fleeing away in a bullock cart, the
remaining forest officials could have chased and caught them in a jeep.
In normal circumstances, when serious injuries were caused to forest
officers and subsequently one of them died the next day and moreover, names
of the accused-appellants were also made known to the police officials on
29.06.1995, there should have been an immediate arrest of the appellants.
The fact that the accused were arrested from their house 8 days later
clearly shows that prosecution had no inkling about the involvement of the
appellants and they were subsequently implicated.
V.C. Marambid (PW-8) in his examination-in-chief before the Trial Court has
stated that Papasab accused-appellant no.3 attacked him with club, but,
further, he clearly stated thus: “at this point of time, I am unable to
identify who that Papasab is amongst these accused persons”. This casts a
grave doubt on the prosecution story.
It was further contended by the learned counsel by placing reliance upon
the decision of this Court in the case of Sunil Kumar Shambhudayal Gupta v.
State of Maharashtra[4] that the trial court which has the benefit of
watching the demeanour of witness is the best judge of the credibility of
the witness. In the present case, the Trial Court after considering the
demeanour of the witnesses came to the right conclusion that it would be
unsafe to place conviction on the testimony of the witnesses and hence,
acquitted the appellants.
Per contra, Mr. V.N. Raghupathy, the learned counsel on behalf of the
respondent-State sought to justify the impugned judgment and order passed
by the High Court on the ground that the same is well founded and is not
vitiated in law. Therefore, no interference of this Court is required in
exercise of its appellate jurisdiction.
He contended that the High Court has rightly appreciated both the
documentary and oral evidence on record in its entirety. The evidence of PW-
6 and PW-8 are fully corroborated by the evidence of PW-1, PW-2 and PW-19
in the instant case and therefore, the High Court has rightly set aside the
Trial Court’s decision and convicted the appellants for the charges
levelled against them.
It was further contended that the prosecution witnesses, who were forest
officials and at the time of incident they were equipped with torches has
successfully identified the accused-appellants in the court. He further
submitted that the circumstances under which the incident in question had
occurred, there could be no other witnesses, except the forest officials
themselves, who could have witnessed the said incident. Hence, the High
Court has rightly found these witnesses credible, reliable and trustworthy.
Further, there appears to be no reason to falsely implicate the appellants
as there was no animus or grudge against them.
Mr. Raghupathy further submitted that the High Court has rightly relied on
the evidence of V.C. Marambid (PW-8) to the extent he has supported the
case of the prosecution, though he partially turned hostile. He further
submitted that it is well settled position of law that the evidence of a
hostile witness is not to be rejected in totality. He placed strong
reliance upon the decision of this Court in the case of Rameshbhai
Mohanbhai Koli and Ors. v. State of Gujarat[5], the relevant para 16 of
which reads thus:
“16. It is settled legal proposition that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution chose to
treat him as hostile and cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record altogether but the
same can be accepted to the extent that their version is found to be
dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of
Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of
Karnataka and Khujji v. State of M.P.)”
We have carefully heard both the parties at length and have also given our
conscious thought to the material on record and the relevant provisions of
law. The question for our consideration is whether the prosecution evidence
establishes beyond reasonable doubt the commission of the offences by the
accused-appellants under Sections 304 part II, 324, 353, 379 and 411 of IPC
read with Section 34 of IPC.
A careful reading of the evidence on record clearly highlights the material
contradictions and discrepancies in the prosecution evidence especially the
testimonies of G.B. Nayak (PW-6), V.C. Marambid (PW-8) and Timmanna (PW-1).
In the instant case, the written complaint about the incident was made by
Timmanna (PW-1) on the basis of which FIR was registered. In the said
written complaint, allegations were made against four unknown persons and
not against the appellants despite the fact that the complainant knew the
name of the accused-appellant no.1 i.e., Noorahammad. This factum is clear
from the testimony of the complainant- Timmanna when he deposed before the
Trial Court as PW-1. The relevant portion of his evidence reads thus:
“5. In that Complaint, I have not mentioned the name of those accused
persons. At that time, I knew the name of this A-1. But, IO did not know
the names of other accused persons. Prior to the incident, I did not know
the name of the accused No.1 also. I came to know the names and address of
all those accused persons correctly through that V.C. Marambid.
Subsequently, the police have reached my further statement and at that
time, I have told the name and address of all these accused persons.”
The aforesaid loophole in the evidence adduced by the prosecution has been
rightly appreciated by the Trial Court holding thus:
“11….His evidence is to the effect that he knew the name of the accused
no.1 even at the time of the complaint as per Exh.P-1. According to him, he
did not know the names and addresses of the culprits and that later on, he
came to know the names and addresses of the other culprits through his
subordinate PW-8 V.C. Marambid a forest officer. It is his evidence that 2
or 3 days later, he came to know the names and addresses of the culprits.
Still, he has maintained throughout that he knew the name of the accused
no.1 very much at the time of the complaint though he was not aware of his
address. When that is so, certainly in his complaint at Exh. P-1, he could
have disclosed atleast the name of the accused no.1. On the other hand, it
is the clear recital in Exh. P-1 that the complainant did not know the
names and whereabouts of the culprits.”
Further, V.C. Marambid (PW-8) in his evidence has disclosed the fact that
he knew all the accused-appellants, who were residents of Hullatti Village,
from before the occurrence by virtue of his duty in Nilgiri plantation at
Hassanabadi and Hullatti. If the aforesaid fact as deposed by him is
believed to be true, then he should have disclosed the identities of all
the accused-appellants to the complainant-Timmanna (PW-1) at the time of
the incident. If not at the time of incident, then the same should have
been disclosed to the police officer at the earliest possible occasion. In
this regard, the view taken by the Trial Court is correct as it has
assigned valid and cogent reasons for the same. It has rightly held thus:
“12……An attempt is made by the prosecution to impress upon the court that
PW-8 Veerappa Channappa Maranbid knew about these accused persons
previously. If that was really so, what prevented him from disclosing the
very names and addresses to the complainant at the earliest occasion? It is
the very evidence of the complainant as PW-1 that PW-8 Veerappa Channappa
Maranbid was very much there at the spot at the time of the incident. It
may be that PW-8 was hospitalised when the complaint was lodged. As
revealed, according to PW-1, he complained to the police in the morning at
7 or 8 a.m. itself on the very same day. But,Exh. P-1 complaint discloses
that it was registered at 8 a.m. It has to be seen that Hangal Police
Station is not far away from the hospital where the injured were being
treated at that time. The evidence has probablised that the said hospital
is very close to the said police station. It is not as if PW-8 who
according to him, was one of the injured, had gone unconscious. As
revealed, the injuries sustained by him were simple in nature. Therefore,
when he was very much available in the adjoining hospital, the complainant
could have certainly ascertained the names and addresses of the alleged
culprits through PW-8 if really PW-8 knew about the names and addresses of
the culprits….”
In the instant case, TIP of the accused-appellants should have been carried
out at the instance of the investigating officer. The High Court, in this
regard, has erred in appreciating the evidence on record in the light of
the facts and circumstances of the present case. From the material on
record, it is sufficiently clear that the incident occurred in the night
around 3.00 am, at a place where there was no proper light. From the
material on record it is not clear whether the source of light in the form
of torches and jeep flash light was sufficient to enable the forest
officers to see the accused-appellants for the purpose of their
identification in later stage of the case. No doubt, law with regard to the
importance of TIP is well settled that identification in court is a
substantive piece of evidence and TIP simply corroborates the same. This
Court in the case of Dana Yadav alias Dahu and Ors. v. State of Bihar[6]
has elaborated upon the importance of test identification parade in great
details. The relevant para nos. 6, 7 and 8 read thus:
“6. It is also well settled that failure to hold test identification
parade, which should be held with reasonable dispatch, does not make the
evidence of identification in court inadmissible, rather the same is very
much admissible in law. Question is, what is its probative value?
Ordinarily, identification of an accused for the first time in court by a
witness should not be relied upon, the same being from its very nature,
inherently of a weak character, unless it is corroborated by his previous
identification in the test identification parade or any other evidence. The
purpose of test identification parade is to test the observation, grasp,
memory, capacity to recapitulate what a witness has seen earlier, strength
or trustworthiness of the evidence of identification of an accused and to
ascertain if it can be used as reliable corroborative evidence of the
witness identifying the accused at his trial in court. If a witness
identifies the accused in court for the first time, the probative value of
such uncorroborated evidence becomes minimal so much so that it becomes, as
a rule of prudence and not law, unsafe to rely on such a piece of evidence.
We are fortified in our view by a catena of decisions of this Court in the
cases of Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa, Budhsen, Kanan
v. State of Kerala, Mohanlal Gangaram Gehani v. State of Maharashtra,
Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh, Jaspal
Singh v. State of Punjab, Raju v. State of Maharashtra, Ronny, George v.
State of Kerala, Rajesh Govind Jagesha, State of H.P. v. Lekh Raj and
Ramanbhai Naranbhai Patel v. State of Gujarat.
7. Apart from the ordinary rule laid down in the aforesaid decisions,
certain exceptions to the same have been carved out where identification of
an accused for the first time in court without there being any
corroboration whatsoever can form the sole basis for his conviction. In the
case of Budhsen it was observed:
“There may, however, be exceptions to this general rule, when for example,
the court is impressed by a particular witness, on whose testimony it can
safely rely, without such or other corroboration.”
8. In the case of State of Maharashtra v. Sukhdev Singh it was laid down
that if a witness had any particular reason to remember about the identity
of an accused, in that event, the case can be brought under the exception
and upon solitary evidence of identification of an accused in court for the
first time, conviction can be based. In the case of Ronny it has been laid
down that where the witness had a chance to interact with the accused or
that in a case where the witness had an opportunity to notice the
distinctive features of the accused which lends assurance to his testimony
in court, the evidence of identification in court for the first time by
such a witness cannot be thrown away merely because no test identification
parade was held. In that case, the accused concerned had a talk with the
identifying witnesses for about 7/8 minutes. In these circumstances, the
conviction of the accused, on the basis of sworn testimony of witnesses
identifying for the first time in court without the same being corroborated
either by previous identification in the test identification parade or any
other evidence, was upheld by this Court. In the case of Rajesh Govind
Jagesha it was laid down that the absence of test identification parade may
not be fatal if the accused is sufficiently described in the complaint
leaving no doubt in the mind of the court regarding his involvement or is
arrested on the spot immediately after the occurrence and in either
eventuality, the evidence of witnesses identifying the accused for the
first time in court can form the basis for conviction without the same
being corroborated by any other evidence and, accordingly, conviction of
the accused was upheld by this Court. In the case of State of H.P. v. Lekh
Raj it was observed (at SCC p. 253, para 3) that
“test identification is 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. There may, however,
be exceptions to this general rule, when, for example, the court is
impressed by a particular witness on whose testimony it can safely rely
without such or other corroboration”.
In that case, laying down the aforesaid law, acquittal of one of the
accused by the High Court was converted into conviction by this Court on
the basis of identification by a witness for the first time in court
without the same being corroborated by any other evidence. In the case of
Ramanbhai Naranbhai Patel it was observed:
“It, therefore, cannot be held, as tried to be submitted by learned counsel
for the appellants, that in the absence of a test identification parade,
the evidence of an eyewitness identifying the accused would become
inadmissible or totally useless; whether the evidence deserves any credence
or not would always depend on the facts and circumstances of each case.”
The Court further observed:
“the fact remains that these eyewitnesses were seriously injured and they
could have easily seen the faces of the persons assaulting them and their
appearance and identity would well remain imprinted in their minds
especially when they were assaulted in broad daylight”.
In these circumstances, conviction of the accused was upheld on the basis
of solitary evidence of identification by a witness for the first time in
court.”
Another important fact which the High Court has failed to appreciate is
that the prosecution witness identified the accused-appellants in court for
the first time, during trial, in the year 1997-98 and the incident occurred
in the year 1995. Thus, after considering some undisputed facts like
occurrence of incident at night, at a place with improper lighting and all
the accused-appellants were not known to the forest officers, except one
present at the place of incident, there should have been TIP conducted at
the instance of the investigating officer. Therefore, the identification of
the accused-appellants by the prosecution witness for the first time after
a gap of more than 2 years from the date of incident is not beyond
reasonable doubt, the same should be seen with suspicion.
Further, all the accused-appellants were arrested on 05.07.1995 from their
home at Hullatti village. Prosecution has failed to explain the delay of 8
days on the part of the investigating agency to make arrest of all the
accused-appellants, when the incident occurred on 27.06.1995 and allegedly
V.C. Marambid (PW-8) in his statement under Section 161 of Cr.P.C. had
already revealed the identity of all the culprits involved in the incident.
Though the prosecution tried to explain the delay in making arrest by
pressing upon the ground that the accused-appellants were absconding. But
the same was rightly not believed by the Trial Court. If they were really
absconding, then they should have remained absconding. Their arrest from
their home casts a shadow of doubt on the prosecution story rendering the
same to be concocted and dubious. Rather the aforesaid fact, on the other
hand, fortifies the plea taken by all the accused-appellants that they have
been falsely implicated in the case.
The High Court has further failed to appreciate some other important facts
which create reasonable suspicion and shadow of doubt in the truthfulness
of the prosecution story, namely, instead of confronting with the forest
officers, who were on patrolling duty in jeep, the accused-appellants would
have tried to conceal their presence either by hiding themselves or by
running away. Further, the forest officers, including the driver of the
jeep, were 10 in number and on the other hand, accused-appellants were 4.
It is difficult to believe that the forest officers made no frantic efforts
to nab the culprits when they allegedly assaulted them. The forest officers
could have easily apprehended the culprits had they tried, as they
outnumbered them. Further, it is clear from the record that all the forest
officers were deployed on patrolling duty to keep a check on the then
increasing forest offences. It means incident, like in the instant case,
could reasonably be anticipated. It has been rightly appreciated by the
Trial Court that under such circumstances, they should have been armed with
weapons atleast for their own safety. As per record, when the incident
occurred all the forest officers were found to be without weapons. It
cannot be believed that the forest officers on patrolling duty were without
any weapon. In this regard, the High Court has erred in observing that the
Forest Department being poorly equipped failed to provide weapons to meet
the situations, like in the instant case. Further, the accused-appellants
were caught with a teak wood log in their bullock cart. The prosecution
version is that after the assault, all the accused-appellants ran away in
their bullock cart leaving behind the said wooden log. It has rightly been
observed by the Trial Court that if the accused-appellants had any
intention to carry away the said wooden log, they would have easily done so
as after the alleged assault, they had no hurdle, whatsoever, in that
regard. Thus, the aforesaid story certainly casts a shadow of doubt on the
truthfulness of the prosecution case and renders the same to be unreliable.
The reasoning given by the High Court in its judgment and order in itself
is contrary. On the one hand, it has observed that when the accused-
appellants started assaulting the forest officers, none of the officers,
who were unarmed, dared to go near the culprits with a view to catch them,
thus, placing the accused-appellants in a dominating position. On the other
hand, it has further observed that the accused-appellants had dropped the
said wooden log to make their bullock cart light in weight with a view to
move swiftly. This Court finds the aforesaid reasons assigned by the High
Court to be incorrect. Once the accused-appellants were in a dominating
position, none of the forest officers could go near them for the purpose of
nabbing them. Thus, there can be no justification for leaving behind the
said wooden log. They could have easily carried it away with them, if they
had the intention of doing so. The prosecution has failed to explain the
reason behind the accused-appellants not taking away the said wooden log
with them.
In the post mortem report of the deceased, the presence of a surgical wound
on the left side of the head, measuring 13cms long extending vertically
upwards from point 1.5cms above and in front of left ear, has remained
unexplained by the prosecution, is another lacuna in the prosecution story
which casts a shadow of doubt on the same and the benefit of which should
certainly go to the accused-appellants.
There are many more material contradictions in the prosecution evidence
which the High Court failed to notice, namely, Kanayya (PW-5), Forest
Guard, an eye-witness to the incident, in his examination before the Trial
Court, has stated that there were some teakwood logs present on the cart.
However, as per the prosecution story there was one teakwood log discovered
in the cart by the forest officials. Further, V.C. Marambid (PW-8) in his
examination before the Trial Court stated thus:
“At that time, one these accused persons very strongly hit on my head with
a club and I fell down. There was a bleeding injury on my head on account
of that blow. Accused Papasab had so bet me with that club. At this point
of time, I am unable to identify who that Papasab is amongst these accused
persons. I got up and went to the jeep and sat inside the jeep. Since I had
received a severe blow on my head I did not notice what had happened
thereafter. However, myself and G.B.Nayak were taken to Hangal in that jeep
for treatment. That G.B.Nayak had also sustained injury. On reaching the
hospital at Hangal, I came to know that R.L.Patagar was also assaulted and
injured. I did not know how exactly that T.G.Nayak and that R.L.Patagar
sustained injuries.”
He did not support the prosecution story and was declared a hostile
witness. In his cross-examination by Public Prosecutor he stated thus:
“It is not true to say that I have stated before the police that I saw
G.B.Nayak being assaulted by accused Tajusab with club and that Patagar is
being assaulted by the accused Noorahamed and Allauddin with clubs and that
on account of these blows that G.B.Nayak had sustained bleeding injury and
that Pategar also sustained injury and that the accused persons thereafter
dropped that wooden log at that spot and ran away in that cart…”
The High Court has failed to appreciate another important piece of evidence
that when the injuries sustained by the deceased were more serious in
nature than the injuries sustained by other two forest officers, which were
minor in nature, then the deceased should have been taken to hospital first
or atleast along with other two injured forest officials, who were taken to
hospital in the first instance. In this regard, the Trial Court has rightly
observed thus:
“It is the evidence of the PW-1,4 and PW-6 that the condition of
Ramakrishna Lingappa Patagar was more serious than the other two injured
persons at the spot. But, it is strange that the other two injured persons
namely, PW-6 and PW-8 were taken to the hospital at the first instance in
the jeep leaving that Ramakrishna Lingappa Patagar at the spot. It is the
case of the prosecution that after return, that Ramakrishna Lingappa
Patagar was taken in that jeep, to the hospital.”
The recovery of bullocks and cart used by the accused-appellants at the
time of incident is also under a cloud of suspicion as the panch witness-PW-
11 has turned hostile with regard to the alleged recovery. Hence, the
prosecution evidence in this regard cannot be relied upon.
Thus, for the aforesaid reasons, the evidence adduced by the prosecution to
support its version does not prove beyond reasonable doubt the offences
levelled against all the accused-appellants. This Court in the case of Raj
Kumar Singh v. State of Rajasthan[7] has held thus:
“21. Suspicion, however grave it may be, cannot take the place of proof,
and there is a large difference between something that “may be” proved and
“will be proved”. In a criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of proof. This is for the
reason that the mental distance between “may be” and “must be” is quite
large and divides vague conjectures from sure conclusions. In a criminal
case, the court has a duty to ensure that mere conjectures or suspicion do
not take the place of legal proof. The large distance between “may be” true
and “must be” true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the prosecution, before an accused is
condemned as a convict, and the basic and golden rule must be applied. In
such cases, while keeping in mind the distance between “may be” true and
“must be” true, the court must maintain the vital distance between
conjectures and sure conclusions to be arrived at, on the touchstone of
dispassionate judicial scrutiny based upon a complete and comprehensive
appreciation of all features of the case, as well as the quality and
credibility of the evidence brought on record. The court must ensure that
miscarriage of justice is avoided and if the facts and circumstances of a
case so demand, then the benefit of doubt must be given to the accused,
keeping in mind that a reasonable doubt is not an imaginary, trivial or a
merely probable doubt, but a fair doubt that is based upon reason and
common sense.”
(emphasis supplied by this Court)
In the instant case, the material contradictions in prosecution evidence
cast a shadow of doubt upon the prosecution story and render the same
unreliable and not trustworthy in the eyes of law, which the High Court has
failed to appreciate. Therefore, the impugned judgment and order passed by
the High Court must be set aside by this Court in exercise of its appellate
jurisdiction.
|NON-REPORTABLE |
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 412 OF 2006
NOORAHAMMAD AND ORS ………APPELLANTS
Vs.
STATE OF KARNATAKA ……RESPONDENT
J U D G M E N T
V.GOPALA GOWDA, J.
This criminal appeal by special leave is directed against the impugned
judgment and order dated 02.06.2005 passed in Crl. A. No. 184 of 1999(A) by
the High Court of Karnataka at Bangalore whereby partly allowing the appeal
filed by the State, the High Court has set aside the acquittal order passed
by the Trial Court and convicted the appellant nos. 1 to 4 for the offences
punishable under Sections 304 part II, 324, 353, 379 and 411 read with
Section 34 of Indian Penal Code, 1860 (for short the “IPC”). However, it
has upheld the acquittal of all the four appellants for the offence
punishable under Section 24(e) of the Karnataka Forest Act.
Brief facts are stated hereunder to appreciate the rival legal contentions
urged on behalf of the parties:
The case of the prosecution is that on 27.06.1995, at around 3.00 am, the
informant party, comprising of about 10 forest officials in a jeep,
intercepted a bullock cart on Yallur-Nitagikoppa Kacha Road. It was alleged
that the appellants herein were present on the said cart and transporting
stolen teak wood log clandestinely and illegally, without a pass or permit.
It was further alleged that an altercation ensued and Papasab (accused-
appellant no.3) attacked V.C. Marambid (PW-8), Forest watcher, with a club.
The aforesaid attack resulted in a bleeding injury to PW-8. It was further
alleged that R.L. Patagar (since deceased), RFO and G.B. Nayak (PW-6),
incharge R.F.O. (Plantation Superintendent) at Hangal tried to catch hold
of the remaining accused, when Noorahammad (accused-appellant no.1) picked
up a club from the cart and hit R.L. Patagar on back of the head. It was
further alleged that Allauddin (accused-appellant no.2) also took up a club
and beat R.L. Patagar. Further, Tajusab (accused-appellant no.4) took up
club and beat G.B. Nayak. Thereafter, all the accused left the teak wood
log and escaped in the bullock cart.
On 27.06.1995 at around 8.00 am, FIR No. 213 of 1995 in respect of the
incident was lodged at the instance of one Timmanna (PW-1) at Hangal Police
Station which was recorded by Sub Inspector, Maruti Raoji Shindhe (PW-19).
R.L. Patagar, who was undergoing treatment at KMC Hospital, Hubli, expired
on 28.06.1995 at about 3.00 pm.
During the course of investigation all the four appellants were arrested
from their house at Hullatti village and bullock cart and bullocks used in
the commission of the said offence were also recovered.
The trial was conducted by Additional Sessions Judge, Dharwad for the
offences punishable under Sections 302, 324, 353, 379 and 411 of IPC read
with Section 34 of IPC and Section 24(e) of the Karnataka Forest Act.
During trial, in order to prove its case, prosecution examined 22
witnesses. All the appellants, in their statement made under Section 313 of
the Cr.P.C., denied all the incriminating circumstances appearing against
them in the prosecution evidence. The Trial Court vide its judgment and
order dated 13.11.1998 acquitted all the accused-appellants from the
charges levelled against them.
Aggrieved by the decision of the Trial Court, the respondent-State
preferred Criminal Appeal No. 184 of 1999(A) before the High Court of
Karnataka, at Bangalore urging various grounds and prayed for setting aside
the judgment and order of acquittal passed by the Trial Court.
The High Court vide its judgment and order dated 02.06.2005 has allowed the
appeal in part and convicted all the accused-appellants for the offences
punishable under Sections 304 part II, 324, 353, 379 and 411 read with
Section 34 of IPC. For the offence punishable under Section 304 part II of
IPC read with Section 34 of IPC, all the four appellants have been
sentenced to undergo rigorous imprisonment for a period of 4 years each and
to pay a fine of Rs. 1,000/- each and in default of fine, to undergo
further rigorous imprisonment for a period of 2 months each. No separate
sentences have been awarded for other offences. However, the acquittal of
all the appellants under Section 24(e) of the Karnataka Forest Act has been
left undisturbed by the High Court. Aggrieved by the judgment and order
passed by the High Court, all the four appellants has preferred this appeal
praying for their acquittal.
Mr. M. Khairati, the learned counsel for the appellants contended that the
High Court has failed to appreciate that there is nothing on record to
establish that R.L. Patagar (deceased) died only due to head injury which
was caused by the appellants and therefore, there is no justification to
convict them under Section 304 part II read with Section 34 of the IPC and
sentence them to undergo rigorous imprisonment for the said offence.
He submitted that the High Court has failed to apply the law laid down by
this Court while setting aside the judgment of acquittal passed by the
Trial Court. He placed strong reliance upon the decision of this Court in
the case of Satvir Singh v. State of Delhi[1], authored by me, wherein this
Court has laid down the circumstances in which the High Court, as an
appellate court, would reverse an order of acquittal passed by the trial
court. In that case it has been held by this Court that while the High
Court has full power to review, re-appreciate and reconsider the evidence,
upon which the order of acquittal is founded, but should not disturb the
finding of the trial court if two reasonable conclusions are possible, on
the basis of the evidence on record. He further placed strong reliance upon
the decision of this Court in the case of S. Govindraju v. State of
Karnataka[2], in which Justice S.A. Bobde was one of the companion Judge,
the relevant para 20 of which, reads thus:
“20. It is a settled legal proposition that in exceptional circumstances,
the appellate court, for compelling reasons, should not hesitate to reverse
a judgment of acquittal passed by the court below, if the findings so
recorded by the court below are found to be perverse i.e. if the
conclusions arrived at by the court below are contrary to the evidence on
record, or if the court’s entire approach with respect to dealing with the
evidence is found to be patently illegal, leading to the miscarriage of
justice, or if its judgment is unreasonable and is based on an erroneous
understanding of the law and of the facts of the case. While doing so, the
appellate court must bear in mind the presumption of innocence in favour of
the accused, and also that an acquittal by the court below bolsters such
presumption of innocence.”
It was further contended by the learned counsel that a perusal of the
judgment passed by the High Court shows that the High Court has not
recorded a finding regarding the ignorance of any relevant evidence by the
Trial Court. Further, the High Court has also not recorded a finding to the
effect that some irrelevant evidence has been considered by the Trial Court
while acquitting the appellants. He further submitted that it is also not
found by the High Court that the Trial Court has proceeded on erroneous
understanding of the law or of the facts of the case. Further, it is also
not found that the Trial Court has dealt with the evidence in an illegal
manner. Hence, the finding of the High Court that the judgment of the Trial
Court is perverse is an incorrect finding. He placed reliance upon the
decision of this Court in the case of Sumitomo Heavy Industries Ltd. v.
ONGC Ltd.[3] to elaborate upon the meaning of the expression “perverse”.
The relevant para 42 relied upon by the learned counsel reads thus:
“42. Can the findings and the award in the present case be described as
perverse? This Court has already laid down as to which finding would be
called perverse. It is a finding which is not only against the weight of
evidence but altogether against the evidence. This Court has held in
Triveni Rubber & Plastics v. CCE that a perverse finding is one which is
based on no evidence or one that no reasonable person would have arrived
at. Unless it is found that some relevant evidence has not been considered
or that certain inadmissible material has been taken into consideration the
finding cannot be said to be perverse. The legal position in this behalf
has been recently reiterated in Arulvelu v. State.”
It was further contended that the High Court has incorrectly relied upon
the testimonies of eye witness-G.B. Nayak (PW-6) and V.C. Marambid (PW-8)
to reverse the judgment of acquittal passed by the Trial Court. It has
failed to take note of some inherent inconsistencies, contradictions and
improbabilities in the evidence which make the testimonies of the said
witnesses difficult to be believed. The learned counsel, further, drew the
attention of this Court towards certain circumstances which the High Court
has failed to consider. They are, interalia, as follows:
Timmanna (PW-1), at the instance of whom the FIR was registered, claims to
be the eye-witness to the occurrence. In his evidence, he has claimed that
he knew the name of appellant no.1 i.e., Noorahammad at the time of
incident. However, he has lodged FIR against unknown persons. He has failed
to explain this vital contradiction.
The appellants were arrested on 05.07.1995 i.e., after 8 days from the date
of the occurrence, allegedly on the statement of V.C. Marambid (PW-8) given
to the investigation officer under Section 161 Cr.P.C. There is
considerable doubt as to the correctness of the said statement as PW-8
himself in his evidence, has disowned a part of the same. Therefore, it
cannot be said, beyond any reasonable doubt, that the statement projected
by the prosecution is the statement which was given by PW-8 naming the
appellants.
In view of the fact that the FIR was registered against unknown persons and
even description of the accused was not mentioned, a Test Identification
Parade (TIP) ought to have been conducted so as to inspire confidence about
the identity of the assailants. However, the prosecution has not rendered
any explanation as to why said TIP was not conducted. In such
circumstances, dock identification by the witnesses, after 2 years from the
incident was rightly not relied upon by the Trial Court.
The clubs allegedly used by the appellants to attack the forest officials
should have had blood stains but the same were not sent for forensic
examination.
The appellants were alleged to be carrying valuable teakwood. As per the
prosecution story, after assaulting the prosecution party, they fled away
in the bullock-cart after dropping the teakwood log, which is difficult to
believe.
According to the prosecution story, there were 8-9 forest officials and
they had a jeep with them. Only a few of them were allegedly attacked by
the appellants. When the attackers were fleeing away in a bullock cart, the
remaining forest officials could have chased and caught them in a jeep.
In normal circumstances, when serious injuries were caused to forest
officers and subsequently one of them died the next day and moreover, names
of the accused-appellants were also made known to the police officials on
29.06.1995, there should have been an immediate arrest of the appellants.
The fact that the accused were arrested from their house 8 days later
clearly shows that prosecution had no inkling about the involvement of the
appellants and they were subsequently implicated.
V.C. Marambid (PW-8) in his examination-in-chief before the Trial Court has
stated that Papasab accused-appellant no.3 attacked him with club, but,
further, he clearly stated thus: “at this point of time, I am unable to
identify who that Papasab is amongst these accused persons”. This casts a
grave doubt on the prosecution story.
It was further contended by the learned counsel by placing reliance upon
the decision of this Court in the case of Sunil Kumar Shambhudayal Gupta v.
State of Maharashtra[4] that the trial court which has the benefit of
watching the demeanour of witness is the best judge of the credibility of
the witness. In the present case, the Trial Court after considering the
demeanour of the witnesses came to the right conclusion that it would be
unsafe to place conviction on the testimony of the witnesses and hence,
acquitted the appellants.
Per contra, Mr. V.N. Raghupathy, the learned counsel on behalf of the
respondent-State sought to justify the impugned judgment and order passed
by the High Court on the ground that the same is well founded and is not
vitiated in law. Therefore, no interference of this Court is required in
exercise of its appellate jurisdiction.
He contended that the High Court has rightly appreciated both the
documentary and oral evidence on record in its entirety. The evidence of PW-
6 and PW-8 are fully corroborated by the evidence of PW-1, PW-2 and PW-19
in the instant case and therefore, the High Court has rightly set aside the
Trial Court’s decision and convicted the appellants for the charges
levelled against them.
It was further contended that the prosecution witnesses, who were forest
officials and at the time of incident they were equipped with torches has
successfully identified the accused-appellants in the court. He further
submitted that the circumstances under which the incident in question had
occurred, there could be no other witnesses, except the forest officials
themselves, who could have witnessed the said incident. Hence, the High
Court has rightly found these witnesses credible, reliable and trustworthy.
Further, there appears to be no reason to falsely implicate the appellants
as there was no animus or grudge against them.
Mr. Raghupathy further submitted that the High Court has rightly relied on
the evidence of V.C. Marambid (PW-8) to the extent he has supported the
case of the prosecution, though he partially turned hostile. He further
submitted that it is well settled position of law that the evidence of a
hostile witness is not to be rejected in totality. He placed strong
reliance upon the decision of this Court in the case of Rameshbhai
Mohanbhai Koli and Ors. v. State of Gujarat[5], the relevant para 16 of
which reads thus:
“16. It is settled legal proposition that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution chose to
treat him as hostile and cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record altogether but the
same can be accepted to the extent that their version is found to be
dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of
Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of
Karnataka and Khujji v. State of M.P.)”
We have carefully heard both the parties at length and have also given our
conscious thought to the material on record and the relevant provisions of
law. The question for our consideration is whether the prosecution evidence
establishes beyond reasonable doubt the commission of the offences by the
accused-appellants under Sections 304 part II, 324, 353, 379 and 411 of IPC
read with Section 34 of IPC.
A careful reading of the evidence on record clearly highlights the material
contradictions and discrepancies in the prosecution evidence especially the
testimonies of G.B. Nayak (PW-6), V.C. Marambid (PW-8) and Timmanna (PW-1).
In the instant case, the written complaint about the incident was made by
Timmanna (PW-1) on the basis of which FIR was registered. In the said
written complaint, allegations were made against four unknown persons and
not against the appellants despite the fact that the complainant knew the
name of the accused-appellant no.1 i.e., Noorahammad. This factum is clear
from the testimony of the complainant- Timmanna when he deposed before the
Trial Court as PW-1. The relevant portion of his evidence reads thus:
“5. In that Complaint, I have not mentioned the name of those accused
persons. At that time, I knew the name of this A-1. But, IO did not know
the names of other accused persons. Prior to the incident, I did not know
the name of the accused No.1 also. I came to know the names and address of
all those accused persons correctly through that V.C. Marambid.
Subsequently, the police have reached my further statement and at that
time, I have told the name and address of all these accused persons.”
The aforesaid loophole in the evidence adduced by the prosecution has been
rightly appreciated by the Trial Court holding thus:
“11….His evidence is to the effect that he knew the name of the accused
no.1 even at the time of the complaint as per Exh.P-1. According to him, he
did not know the names and addresses of the culprits and that later on, he
came to know the names and addresses of the other culprits through his
subordinate PW-8 V.C. Marambid a forest officer. It is his evidence that 2
or 3 days later, he came to know the names and addresses of the culprits.
Still, he has maintained throughout that he knew the name of the accused
no.1 very much at the time of the complaint though he was not aware of his
address. When that is so, certainly in his complaint at Exh. P-1, he could
have disclosed atleast the name of the accused no.1. On the other hand, it
is the clear recital in Exh. P-1 that the complainant did not know the
names and whereabouts of the culprits.”
Further, V.C. Marambid (PW-8) in his evidence has disclosed the fact that
he knew all the accused-appellants, who were residents of Hullatti Village,
from before the occurrence by virtue of his duty in Nilgiri plantation at
Hassanabadi and Hullatti. If the aforesaid fact as deposed by him is
believed to be true, then he should have disclosed the identities of all
the accused-appellants to the complainant-Timmanna (PW-1) at the time of
the incident. If not at the time of incident, then the same should have
been disclosed to the police officer at the earliest possible occasion. In
this regard, the view taken by the Trial Court is correct as it has
assigned valid and cogent reasons for the same. It has rightly held thus:
“12……An attempt is made by the prosecution to impress upon the court that
PW-8 Veerappa Channappa Maranbid knew about these accused persons
previously. If that was really so, what prevented him from disclosing the
very names and addresses to the complainant at the earliest occasion? It is
the very evidence of the complainant as PW-1 that PW-8 Veerappa Channappa
Maranbid was very much there at the spot at the time of the incident. It
may be that PW-8 was hospitalised when the complaint was lodged. As
revealed, according to PW-1, he complained to the police in the morning at
7 or 8 a.m. itself on the very same day. But,Exh. P-1 complaint discloses
that it was registered at 8 a.m. It has to be seen that Hangal Police
Station is not far away from the hospital where the injured were being
treated at that time. The evidence has probablised that the said hospital
is very close to the said police station. It is not as if PW-8 who
according to him, was one of the injured, had gone unconscious. As
revealed, the injuries sustained by him were simple in nature. Therefore,
when he was very much available in the adjoining hospital, the complainant
could have certainly ascertained the names and addresses of the alleged
culprits through PW-8 if really PW-8 knew about the names and addresses of
the culprits….”
In the instant case, TIP of the accused-appellants should have been carried
out at the instance of the investigating officer. The High Court, in this
regard, has erred in appreciating the evidence on record in the light of
the facts and circumstances of the present case. From the material on
record, it is sufficiently clear that the incident occurred in the night
around 3.00 am, at a place where there was no proper light. From the
material on record it is not clear whether the source of light in the form
of torches and jeep flash light was sufficient to enable the forest
officers to see the accused-appellants for the purpose of their
identification in later stage of the case. No doubt, law with regard to the
importance of TIP is well settled that identification in court is a
substantive piece of evidence and TIP simply corroborates the same. This
Court in the case of Dana Yadav alias Dahu and Ors. v. State of Bihar[6]
has elaborated upon the importance of test identification parade in great
details. The relevant para nos. 6, 7 and 8 read thus:
“6. It is also well settled that failure to hold test identification
parade, which should be held with reasonable dispatch, does not make the
evidence of identification in court inadmissible, rather the same is very
much admissible in law. Question is, what is its probative value?
Ordinarily, identification of an accused for the first time in court by a
witness should not be relied upon, the same being from its very nature,
inherently of a weak character, unless it is corroborated by his previous
identification in the test identification parade or any other evidence. The
purpose of test identification parade is to test the observation, grasp,
memory, capacity to recapitulate what a witness has seen earlier, strength
or trustworthiness of the evidence of identification of an accused and to
ascertain if it can be used as reliable corroborative evidence of the
witness identifying the accused at his trial in court. If a witness
identifies the accused in court for the first time, the probative value of
such uncorroborated evidence becomes minimal so much so that it becomes, as
a rule of prudence and not law, unsafe to rely on such a piece of evidence.
We are fortified in our view by a catena of decisions of this Court in the
cases of Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa, Budhsen, Kanan
v. State of Kerala, Mohanlal Gangaram Gehani v. State of Maharashtra,
Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh, Jaspal
Singh v. State of Punjab, Raju v. State of Maharashtra, Ronny, George v.
State of Kerala, Rajesh Govind Jagesha, State of H.P. v. Lekh Raj and
Ramanbhai Naranbhai Patel v. State of Gujarat.
7. Apart from the ordinary rule laid down in the aforesaid decisions,
certain exceptions to the same have been carved out where identification of
an accused for the first time in court without there being any
corroboration whatsoever can form the sole basis for his conviction. In the
case of Budhsen it was observed:
“There may, however, be exceptions to this general rule, when for example,
the court is impressed by a particular witness, on whose testimony it can
safely rely, without such or other corroboration.”
8. In the case of State of Maharashtra v. Sukhdev Singh it was laid down
that if a witness had any particular reason to remember about the identity
of an accused, in that event, the case can be brought under the exception
and upon solitary evidence of identification of an accused in court for the
first time, conviction can be based. In the case of Ronny it has been laid
down that where the witness had a chance to interact with the accused or
that in a case where the witness had an opportunity to notice the
distinctive features of the accused which lends assurance to his testimony
in court, the evidence of identification in court for the first time by
such a witness cannot be thrown away merely because no test identification
parade was held. In that case, the accused concerned had a talk with the
identifying witnesses for about 7/8 minutes. In these circumstances, the
conviction of the accused, on the basis of sworn testimony of witnesses
identifying for the first time in court without the same being corroborated
either by previous identification in the test identification parade or any
other evidence, was upheld by this Court. In the case of Rajesh Govind
Jagesha it was laid down that the absence of test identification parade may
not be fatal if the accused is sufficiently described in the complaint
leaving no doubt in the mind of the court regarding his involvement or is
arrested on the spot immediately after the occurrence and in either
eventuality, the evidence of witnesses identifying the accused for the
first time in court can form the basis for conviction without the same
being corroborated by any other evidence and, accordingly, conviction of
the accused was upheld by this Court. In the case of State of H.P. v. Lekh
Raj it was observed (at SCC p. 253, para 3) that
“test identification is 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. There may, however,
be exceptions to this general rule, when, for example, the court is
impressed by a particular witness on whose testimony it can safely rely
without such or other corroboration”.
In that case, laying down the aforesaid law, acquittal of one of the
accused by the High Court was converted into conviction by this Court on
the basis of identification by a witness for the first time in court
without the same being corroborated by any other evidence. In the case of
Ramanbhai Naranbhai Patel it was observed:
“It, therefore, cannot be held, as tried to be submitted by learned counsel
for the appellants, that in the absence of a test identification parade,
the evidence of an eyewitness identifying the accused would become
inadmissible or totally useless; whether the evidence deserves any credence
or not would always depend on the facts and circumstances of each case.”
The Court further observed:
“the fact remains that these eyewitnesses were seriously injured and they
could have easily seen the faces of the persons assaulting them and their
appearance and identity would well remain imprinted in their minds
especially when they were assaulted in broad daylight”.
In these circumstances, conviction of the accused was upheld on the basis
of solitary evidence of identification by a witness for the first time in
court.”
Another important fact which the High Court has failed to appreciate is
that the prosecution witness identified the accused-appellants in court for
the first time, during trial, in the year 1997-98 and the incident occurred
in the year 1995. Thus, after considering some undisputed facts like
occurrence of incident at night, at a place with improper lighting and all
the accused-appellants were not known to the forest officers, except one
present at the place of incident, there should have been TIP conducted at
the instance of the investigating officer. Therefore, the identification of
the accused-appellants by the prosecution witness for the first time after
a gap of more than 2 years from the date of incident is not beyond
reasonable doubt, the same should be seen with suspicion.
Further, all the accused-appellants were arrested on 05.07.1995 from their
home at Hullatti village. Prosecution has failed to explain the delay of 8
days on the part of the investigating agency to make arrest of all the
accused-appellants, when the incident occurred on 27.06.1995 and allegedly
V.C. Marambid (PW-8) in his statement under Section 161 of Cr.P.C. had
already revealed the identity of all the culprits involved in the incident.
Though the prosecution tried to explain the delay in making arrest by
pressing upon the ground that the accused-appellants were absconding. But
the same was rightly not believed by the Trial Court. If they were really
absconding, then they should have remained absconding. Their arrest from
their home casts a shadow of doubt on the prosecution story rendering the
same to be concocted and dubious. Rather the aforesaid fact, on the other
hand, fortifies the plea taken by all the accused-appellants that they have
been falsely implicated in the case.
The High Court has further failed to appreciate some other important facts
which create reasonable suspicion and shadow of doubt in the truthfulness
of the prosecution story, namely, instead of confronting with the forest
officers, who were on patrolling duty in jeep, the accused-appellants would
have tried to conceal their presence either by hiding themselves or by
running away. Further, the forest officers, including the driver of the
jeep, were 10 in number and on the other hand, accused-appellants were 4.
It is difficult to believe that the forest officers made no frantic efforts
to nab the culprits when they allegedly assaulted them. The forest officers
could have easily apprehended the culprits had they tried, as they
outnumbered them. Further, it is clear from the record that all the forest
officers were deployed on patrolling duty to keep a check on the then
increasing forest offences. It means incident, like in the instant case,
could reasonably be anticipated. It has been rightly appreciated by the
Trial Court that under such circumstances, they should have been armed with
weapons atleast for their own safety. As per record, when the incident
occurred all the forest officers were found to be without weapons. It
cannot be believed that the forest officers on patrolling duty were without
any weapon. In this regard, the High Court has erred in observing that the
Forest Department being poorly equipped failed to provide weapons to meet
the situations, like in the instant case. Further, the accused-appellants
were caught with a teak wood log in their bullock cart. The prosecution
version is that after the assault, all the accused-appellants ran away in
their bullock cart leaving behind the said wooden log. It has rightly been
observed by the Trial Court that if the accused-appellants had any
intention to carry away the said wooden log, they would have easily done so
as after the alleged assault, they had no hurdle, whatsoever, in that
regard. Thus, the aforesaid story certainly casts a shadow of doubt on the
truthfulness of the prosecution case and renders the same to be unreliable.
The reasoning given by the High Court in its judgment and order in itself
is contrary. On the one hand, it has observed that when the accused-
appellants started assaulting the forest officers, none of the officers,
who were unarmed, dared to go near the culprits with a view to catch them,
thus, placing the accused-appellants in a dominating position. On the other
hand, it has further observed that the accused-appellants had dropped the
said wooden log to make their bullock cart light in weight with a view to
move swiftly. This Court finds the aforesaid reasons assigned by the High
Court to be incorrect. Once the accused-appellants were in a dominating
position, none of the forest officers could go near them for the purpose of
nabbing them. Thus, there can be no justification for leaving behind the
said wooden log. They could have easily carried it away with them, if they
had the intention of doing so. The prosecution has failed to explain the
reason behind the accused-appellants not taking away the said wooden log
with them.
In the post mortem report of the deceased, the presence of a surgical wound
on the left side of the head, measuring 13cms long extending vertically
upwards from point 1.5cms above and in front of left ear, has remained
unexplained by the prosecution, is another lacuna in the prosecution story
which casts a shadow of doubt on the same and the benefit of which should
certainly go to the accused-appellants.
There are many more material contradictions in the prosecution evidence
which the High Court failed to notice, namely, Kanayya (PW-5), Forest
Guard, an eye-witness to the incident, in his examination before the Trial
Court, has stated that there were some teakwood logs present on the cart.
However, as per the prosecution story there was one teakwood log discovered
in the cart by the forest officials. Further, V.C. Marambid (PW-8) in his
examination before the Trial Court stated thus:
“At that time, one these accused persons very strongly hit on my head with
a club and I fell down. There was a bleeding injury on my head on account
of that blow. Accused Papasab had so bet me with that club. At this point
of time, I am unable to identify who that Papasab is amongst these accused
persons. I got up and went to the jeep and sat inside the jeep. Since I had
received a severe blow on my head I did not notice what had happened
thereafter. However, myself and G.B.Nayak were taken to Hangal in that jeep
for treatment. That G.B.Nayak had also sustained injury. On reaching the
hospital at Hangal, I came to know that R.L.Patagar was also assaulted and
injured. I did not know how exactly that T.G.Nayak and that R.L.Patagar
sustained injuries.”
He did not support the prosecution story and was declared a hostile
witness. In his cross-examination by Public Prosecutor he stated thus:
“It is not true to say that I have stated before the police that I saw
G.B.Nayak being assaulted by accused Tajusab with club and that Patagar is
being assaulted by the accused Noorahamed and Allauddin with clubs and that
on account of these blows that G.B.Nayak had sustained bleeding injury and
that Pategar also sustained injury and that the accused persons thereafter
dropped that wooden log at that spot and ran away in that cart…”
The High Court has failed to appreciate another important piece of evidence
that when the injuries sustained by the deceased were more serious in
nature than the injuries sustained by other two forest officers, which were
minor in nature, then the deceased should have been taken to hospital first
or atleast along with other two injured forest officials, who were taken to
hospital in the first instance. In this regard, the Trial Court has rightly
observed thus:
“It is the evidence of the PW-1,4 and PW-6 that the condition of
Ramakrishna Lingappa Patagar was more serious than the other two injured
persons at the spot. But, it is strange that the other two injured persons
namely, PW-6 and PW-8 were taken to the hospital at the first instance in
the jeep leaving that Ramakrishna Lingappa Patagar at the spot. It is the
case of the prosecution that after return, that Ramakrishna Lingappa
Patagar was taken in that jeep, to the hospital.”
The recovery of bullocks and cart used by the accused-appellants at the
time of incident is also under a cloud of suspicion as the panch witness-PW-
11 has turned hostile with regard to the alleged recovery. Hence, the
prosecution evidence in this regard cannot be relied upon.
Thus, for the aforesaid reasons, the evidence adduced by the prosecution to
support its version does not prove beyond reasonable doubt the offences
levelled against all the accused-appellants. This Court in the case of Raj
Kumar Singh v. State of Rajasthan[7] has held thus:
“21. Suspicion, however grave it may be, cannot take the place of proof,
and there is a large difference between something that “may be” proved and
“will be proved”. In a criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of proof. This is for the
reason that the mental distance between “may be” and “must be” is quite
large and divides vague conjectures from sure conclusions. In a criminal
case, the court has a duty to ensure that mere conjectures or suspicion do
not take the place of legal proof. The large distance between “may be” true
and “must be” true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the prosecution, before an accused is
condemned as a convict, and the basic and golden rule must be applied. In
such cases, while keeping in mind the distance between “may be” true and
“must be” true, the court must maintain the vital distance between
conjectures and sure conclusions to be arrived at, on the touchstone of
dispassionate judicial scrutiny based upon a complete and comprehensive
appreciation of all features of the case, as well as the quality and
credibility of the evidence brought on record. The court must ensure that
miscarriage of justice is avoided and if the facts and circumstances of a
case so demand, then the benefit of doubt must be given to the accused,
keeping in mind that a reasonable doubt is not an imaginary, trivial or a
merely probable doubt, but a fair doubt that is based upon reason and
common sense.”
(emphasis supplied by this Court)
In the instant case, the material contradictions in prosecution evidence
cast a shadow of doubt upon the prosecution story and render the same
unreliable and not trustworthy in the eyes of law, which the High Court has
failed to appreciate. Therefore, the impugned judgment and order passed by
the High Court must be set aside by this Court in exercise of its appellate
jurisdiction.
For the reasons stated supra, this criminal appeal is allowed. The impugned
judgment and order passed by the High Court is set aside. All the accused-
appellants are acquitted of all the charges levelled against them. The bail
bonds shall stand discharged.
…………………………………………………………J.
[V. GOPALA GOWDA]
…………………………………………………………J.
[S.A. BOBDE]
New Delhi,
February 2, 2016
ITEM NO.1B-For Judgment COURT NO.10 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 412/2006
NOORAHAMMAD AND ORS Appellant(s)
VERSUS
STATE OF KARNATAKA Respondent(s)
Date : 02/02/2016 This appeal was called on for pronouncement of JUDGMENT
today.
For Appellant(s) Mr. Gaurav Agrawal, Adv.
Mr. M. Khairati, Adv.
Ms. Sunita Gautam, Adv.
Mr. Irshad Ahmad,Adv.
For Respondent(s)
Mr. V. N. Raghupathy,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S.A.
Bobde.
The appeal is allowed in terms of the signed Non-
Reportable Judgment. The impugned judgment and order passed by the High
Court is set aside. All the accused-appellants are acquitted of all the
charges levelled against them. The bail bonds shall stand discharged.
|(VINOD KUMAR) | |(CHANDER BALA) |
|COURT MASTER | |COURT MASTER |
(Signed Non-Reportable Judgment is placed on the file)
-----------------------
[1] [2] (2014) 13 SCC 143
[3] [4] (2013) 15 SCC 315
[5] [6] (2010) 11 SCC 296
[7] [8] (2010) 13 SCC 657
[9] [10] (2011) 11 SCC 111
[11] [12] (2002) 7 SCC 295
[13] [14] (2013) 5 SCC 722
For the Latest Updates
Join Now