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Monday, April 21, 2014

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

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

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

The relevant discussion in the judgment of  the
learned trial court on this aspect reads as under:

                  “The requirement of criminal conspiracy, there must be  an
           existence of an agreement to commit an  offence.  The  conspiracy
           can be proved by the direct evidence though the  same  is  rarely
           available, or by circumstantial evidence. As could be  seen  from
           the requirement of law there must be  an  agreement  between  the
           accused  to  commit  an  unlawful  act  lead  to   inference   of
           conspiracy. The evidence of this Allabakash is  not  corroborated
           with any other evidence. He never speaks about anything  unlawful
           act to be done  and  anything  about  an  agreement  between  the
           parties with  regard  to  the  commission  of  an  unlawful  act.
           Necessary ingredients are not established by leading the evidence
           of this PW-19 during  the  course  of  cross-examination  he  has
           admitted that the accused were talking in open space. The publics
           were passing besides the accused. He did not hear what they  were
           talking. He did not suspect about the accused. Two  months  after
           the incident the police came and enquired him. Seetharama A-6  is
           a merchant and good man. On that day whatever  the  accused  were
           talking was not in respect of any wrongdoing.  These  answers  of
           this witness during the course of cross-examination clearly gives
           goodbye to the theory  of  criminal  conspiracy.  Therefore,  the
           materials available on record are  not  sufficient  to  establish
           that there was a criminal conspiracy among the accused  in  order
           to commit the offence.”
For want of establishment of charge of conspiracy A-6 and  A-4  are
let off by the High Court also as they were not named  by  any  of  the  eye
witnesses. We are, therefore, quite in agreement with the conclusion of  the
trial court that charge of conspiracy under Section 120-B  of  IPC  has  not
been proved.

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


The  trial  court  referred  to  Karnataka
Police  Manual  and  observed  that  the  investigation  was  not  done   in
accordance with the procedure for  identifications  contained  therein.  His
analysis in this behalf reads as under:-

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

There is another important aspect  which  cannot  be  lost  sight  of,
 namely as per PW-1 the faces of all the accused persons were  covered  with
 kerchief. It is not at all stated by any of the witnesses as to when  these
 persons removed those kerchief and their faces became naked which could  be
 seen by  these  witnesses.  
Recovery and Arrest 

 In so far as  recovery  on  the  basis  of  purported  voluntary
statement of the accused persons is concerned, the trial  court  found  that
while  recording  alleged  voluntary  statement  of  the  accused   persons,
procedure as laid down under Sections 165 and 166 of the  Code  of  Criminal
Procedure  was not  followed.  The  accused  from  outside  the  State  were
arrested within the limits of some other police  station  without  following
the procedure under Section 166 Cr.P.C. It is further pointed out that  when
the  accused  persons  were  brought  in  Manvi  Police  Station  and  their
voluntary statements were allegedly recorded,  the  police  committed  major
irregularities which  were  incurable. 
  “Now the question that would  arise  is  whey  the  police
           officer  has  requested  the  Tahsildar  to  provide  Government
           official to act as panchas. 
What is the reason  for  taking  the
           Government  official  to  act  as  panchas.  According  to   the
           procedure, the police officer has  to  take  the  assistance  of
           local people as panchas, and he must give reasons if he does not
           take the  assistance  of  local  people.  
Before  recording  the
           voluntary  statements  he  requests  the  Tahsildar  for  giving
           panchs. How he came to know whether these accused persons  would
           give voluntary statements regarding recovery of the cast. 
Then o
           the basis of those voluntary statements the amount was recovered
           from the respective houses  and  subsequently,  the  amount  was
           recovered from other accused  persons  as  per  their  voluntary
           statements. 
The I.O. has not stated about  the  details  of  the
           panchnamas under which the recovery  was  made.  It  has  to  be
           proved by the prosecution by leading cogent evidence.”


        3) What order?”

High Court has committed grave error in recording the conviction solely  on
 the basis of the statement of the so  called  eye  witnesses,  and  wrongly
 believing their version. From the discussion contained in the  judgment  of
 the High  Court,  it  becomes  apparent  that  except  stating  what  these
 witnesses  have  mentioned  in  their  examination-in-chief,   no   further
 discussion is there in the judgment and  the  testimony  is  of  all  these
 persons are believed as gospel truth. The High  Court  was  duty  bound  to
 consider  their  testimonies  in  entirety  i.e.  along  with  the   cross-
 examination in order to find out their  truthfulness  and  to  see  whether
 their version in examination in chief has remained unshaken and  worthy  of
 credence. No such exercise is done at all. No doubt, the  trial  court  has
 indulged in wholesome discussion while  discarding  the  testimony  of  eye
 witnesses. Fact remains that while doing so, the trial court discussed  the
 infirmities in the procedure adopted which led to the disbelieving  of  all
 these witnesses. The discussion of the  trial  court  adversely  commenting
 upon the faulty procedure and imperfect investigation is completely ignored
 and sidelined by the High Court.
We are, therefore, of the opinion that the judgment of the High  Court
 holding the appellants guilty of the offence is unsustainable. The same  is
 accordingly set aside.  This appeal is allowed holding that charge  against
 the appellants under Section 397 IPC read with Section 120-B has  not  been
 proved beyond reasonable doubt.
 2014 (April.Part)judis.nic.in/supremecourt/filename=41434
SURINDER SINGH NIJJAR, A.K. SIKRI

                                                       [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

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

Thimmareddy & Ors.                                 …..Appellants

                 Vs.

State of Karnataka                                       …..Respondent



                       J U D G  M E N T



A.K.SIKRI,J.

1.    Leave granted.

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

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

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

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




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

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

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

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

            3) What order?”

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

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

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



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

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

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

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

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

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

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

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

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

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

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



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

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



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

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

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




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

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

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

      (1) The date of alleged offence was 8.10.2004 and the accused  persons
 were arrested on 28.10.2004. However, first TIP was conducted on  9.11.2004
 and second TIP on 30.1. 2005.  Therefore, this abnormal delay in conducting
 the TIPs, that too when the accused persons were not  previously  known  to
 the alleged eye witnesses rendered the entire exercise of TIPs  as  invalid
 to which no credence could be  given.  He  referred  to  few  judgments  in
 support:                                                                 In
 Hari Nath vs. State of U.P. 1988 (1) SCC 14 wherein reliance was placed  on
 the following observations:


           “Even on the premise that there was no such  prior  acquaintance,
           the evidence establishing the identity of  the  culprits  assumes
           particular materiality in a case, as here, of a dacoity occurring
           in  the  darkness  of  the  night.  The  evidence  of  the   test
           identification would call for a careful scrutiny. In  a  case  of
           this kind where the eyewitnesses, on their own admission, did not
           know the appellants before the occurrence,  their  identification
           of the accused persons for the first time in  the  dock  after  a
           long lapse of time would have been improper. In  Halsbury’s  Laws
           of England (Fourth Edn., Vol. 11, para 363) this  passage  occurs
           and is worth recalling:


           “It is undesirable that witnesses should be asked to  identify  a
           defendant for the first time in the dock at his trial; and  as  a
           general practice it is preferable that he should have been placed
           previously on a parade with  other  persons,  so  that  potential
           witnesses can be asked to pick him out.”





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

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


            (2) His next submission was that PW-1 and PW-7 had identified A-
 1 and A-5 in the court and PW-7 had identified A-1 and A-2  in  the  court.
 However, they were never called at the time of conducting TIP.

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

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

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

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

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

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

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

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

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

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

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

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

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




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






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


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