Ramesh vs State Of Karnataka

Ramesh ... Appellant

Versus

State of Karnataka ... Respondent

JUDGMENT

S.B. Sinha, J.

1. 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. 2

2. 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.

3. 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 whereto a

First Information Report was lodged. It was registered under Section 302,

392 and 307 of the Indian Penal Code.

4. The prosecution case, as disclosed by PW3 is as under :

While he 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 been standing.

Jayamma 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.

Krishna, 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.

He was 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.

Seven 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.

5. 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.

6. 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 said 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.

Accused No.1 Krishna was said to have been holding a Machu. Accused

No.4 was holding a chaku. Accused No.2, however, was unarmed.

7. 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.

8. 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.

9. 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.

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10. This appeal has been filed by the appellant who was accused No.3

alone.

11. 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.

12. Mr. Mishra, learned counsel appearing on behalf of the State,

however, supported the impugned judgment.

We have 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.

Strangely 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.

Accused 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.

13. 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.

14. 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. 9

PW13, 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.

In his statement, the appellant was a regular customer as he had been

transporting sand in his truck regularly. He was examined on 19.11.2002.

According 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.

After one 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.

It 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.

15. 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.

16. 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.

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17. 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.

18. 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 :

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"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. This rule 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."

It was furthermore held :

"It 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."

19. Judged by the aforementioned legal principles laid down therein, in

our opinion, the identification of appellant PW3 in court cannot be held to be

trustworthy.

Reliance 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 :

"Hence, only one identification cannot eliminate the possibility of the pointing out being purely through chance and for this reason is insufficient to establish the charge."

In Heera & 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.

In 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 opined:

14

"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. The 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."

The decision of the Allahabad High Court in Asharfi lal (supra) was

followed therein.

In Kanan & Ors. V. State of Kerala [AIR 1979 SC 1127], this Court

held :

"It 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. 15

I. 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."

20. 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.

21. 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] New Delhi;

July 27, 2009