Prevention of Corruption Act, 1988 – s. 19 – Previous sanction necessary for prosecution – On facts, the trial court summoned the respondent-public servant u/s 319 CrPC to face the trial for the offences u/s. 7/13(2) of the P C Act – High Court set aside the order of the trial court as sanction u/s. 19 was not sought – Correctness: Held: Respondent is a ‘Public Servant’ as defined u/s. 2(c) of the P.C Act – Words and phrases used in s. 19(1) of the P.C Act itself make it evident that the provision is mandatory in nature – Courts cannot take cognizance against any public servant for offences committed u/ss. 7, 11, 13 and 15 of the P.C. Act, even on an application u/s. 319 CrPC, without first following the requirements of s. 19 – On facts, the correct procedure should have been for the prosecution to obtain sanction u/s. 19 from the appropriate Government, before formally moving an application before the Court u/s. 319 CrPC – In fact, the trial court too should have insisted on the prior sanction, which it did not – In absence of the sanction the entire procedure remains flawed – Thus, the impugned order passed by the High Court does not call for interference – ss. 7, 11, 13 and 15 – Code of Criminal Procedure, 1973 – s. 319. [Paras 7, 10, 11]

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[2024] 7 S.C.R. 62 : 2024 INSC 483

The State of Punjab v. Partap Singh Verka

(Criminal Appeal No. 1943 of 2024)

08 July 2024

[Sudhanshu Dhulia* and Prasanna B. Varale, JJ.]

Issue for Consideration

Correctness of the order passed by the High Court setting aside the order of the trial court which had summoned respondent u/s 319 CrPC to face the trial for the offences u/s. 7/13(2) of the Prevention of Corruption Act, 1988, as sanction u/s. 19 of the P.C. Act was not sought.

Headnotes

Prevention of Corruption Act, 1988 – s. 19 – Previous sanction necessary for prosecution – On facts, the trial court summoned the respondent-public servant u/s 319 CrPC to face the trial for the offences u/s. 7/13(2) of the P C Act – High Court set aside the order of the trial court as sanction u/s. 19 was not sought – Correctness:

Held: Respondent is a ‘Public Servant’ as defined u/s. 2(c) of the P.C Act – Words and phrases used in s. 19(1) of the P.C Act itself make it evident that the provision is mandatory in nature – Courts cannot take cognizance against any public servant for offences committed u/ss. 7, 11, 13 and 15 of the P.C. Act, even on an application u/s. 319 CrPC, without first following the requirements of s. 19 – On facts, the correct procedure should have been for the prosecution to obtain sanction u/s. 19 from the appropriate Government, before formally moving an application before the Court u/s. 319 CrPC – In fact, the trial court too should have insisted on the prior sanction, which it did not – In absence of the sanction the entire procedure remains flawed – Thus, the impugned order passed by the High Court does not call for interference – ss. 7, 11, 13 and 15 – Code of Criminal Procedure, 1973 – s. 319. [Paras 7, 10, 11]

Case Law Cited

Dilawar Singh v. Parvinder Singh [2005] Supp. 5 SCR 83 : (2005) 12 SCC 709; Paul Varghese v. State of Kerala [2007] 4 SCR 1155 : (2007) 14 SCC 783; Surinderjit Singh Mand v. State of Punjab [2016] 5 SCR 653 : (2016) 8 SCC 722 – referred to.

List of Acts

Prevention of Corruption Act, 1988; Code of Criminal Procedure, 1973.

List of Keywords

Previous sanction; Public servant; Mandatory in nature.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1943 of 2024

From the Judgment and Order dated 02.08.2018 of the High Court of Punjab & Haryana at Chandigarh in CRR No. 2317 of 2017

Appearances for Parties

Vivek Jain, D.A.G., Ms. Nupur Kumar, Abhinav Jain, Advs. for the Appellant.

R.P. Nagrath, Sr. Adv., Manuj Nagrath, Raktim Gogoi, Kartikeya Singh, Shivam Sharma, S Vinod, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Sudhanshu Dhulia, J.

1.The State of Punjab is in appeal here against the judgment and order dated 02.08.2018, passed by the High Court of Punjab and Haryana setting aside the order dated 20.05.2017 of the Trial Court which had summoned respondent Pratap Singh Verka under Section 319 of Criminal Procedure Code (hereinafter referred to as ‘CrPC’) to face the trial for the offences under sections 7/13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘P.C Act’).

2.Brief facts of the case are that on 25.04.2016, an FIR u/s 7/13 (2) of the P.C Act was lodged against Respondent- Dr. Partap Singh Verka and another co-accused i.e. ‘Vikas’, at Police Station Vigilance Bureau, Amritsar. It was disclosed in the FIR that the present respondent was working as a doctor in Guru Nanak Hospital at the relevant point of time when complainant-Gurwinder Singh sought treatment for his brother who was in jail. The complainant alleged that on 20.04.2016 the Respondent took a bribe of Rs.10,000 from the complainant through the accused-Vikas for admitting the complainant’s brother in his hospital, as he was otherwise reluctant to treat a prisoner. Again on 24.04.2016, the respondent demanded another Rs.10,000/- to keep the patient in the hospital for further treatment and asked the complainant to give that amount to the other accused i.e. ‘Vikas’ in two installments of Rs.5,000 each. The complainant, however, contacted the Vigilance Bureau instead and the officials of Vigilance laid a trap to catch the culprits. On 25.04.2016, the accused-Vikas (ward attendant) was caught red-handed in the parking lot of the hospital receiving Rs.5000 from the complainant. On the same day, the respondent was also arrested from his office.

3.In May 2016, both the accused were released on bail. A chargesheet dated 22.12.2016 was later filed only against the other accused-Vikas. The present respondent was not named in the charge-sheet as an accused.

4.However, during the course of the trial, the complainant-Gurwinder Singh deposed as PW-1 on 12.05.2017 and in his examination-in-chief, he said that it was the present Respondent who had demanded the bribe and it was on his behalf that the other accused, Vikas had received the bribe amount. The trial Court deferred the hearing on the request of the Public Prosecutor of the State who then wanted to move an application under Section 319 of the CrPC for summoning the respondent as an accused. Consequently, an application was moved by the State on 18.05.2017 under Section 319 CrPC, which was allowed on 20.05.2017 and Dr. Partap Singh Verka was summoned to face the trial.

5.The accused Respondent challenged this order of the Trial Court before the High Court which has set aside the order of the Trial Court, as sanction under Section 19 of the P.C Act had not been taken.

6.We have heard the counsel for the Appellant-State as well as for the Respondent and have also perused the material before us.

7.There is no dispute on the fact that the Respondent is a ‘Public Servant’ as defined under Section 2(c) of the P.C Act. Section 19 of the P.C Act puts a bar on Courts to take cognizance of an offence under Sections 7, 11, 13 and 15, without the previous sanction of the State Government, Central Government or the competent authority, as the case may be. The relevant portion of Section 19 of the P.C Act is as follows:

“19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)—

(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.”

8.While allowing the Section 319 (CrPC) application moved by the Public Prosecutor, the Trial Court did not consider the question of sanction. Before this Court the stand of the State of Punjab is that there was no need for this sanction as cognizance was taken in the Court itself under Section 319 of the CrPC.

In Dilawar Singh v. Parvinder Singh, [(2005) 12 SCC 709], this Court while explaining the provisions of Section 19 of the P.C Act and also the provisions under Section 319 Cr.PC., said as under:

“This section creates a complete bar on the power of the court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to (c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant…”

(para 4)

Further, in regard to the relation between Section 19 of P.C Act and the provisions of cognizance under CrPC, this Court laid down the law in the following words:

“…….the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 CrPC. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 CrPC if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person.”

(para 8)

9.In Paul Varghese v. State of Kerala, (2007) 14 SCC 783, this Court again reiterated this provision and held:

“As has been rightly held by the High Court in view of what has been stated in Dilawar Singh case [(2005) 12 SCC 709 : (2006) 1 SCC (Cri) 727] the trial court was not justified in holding that Section 319 of the Code has to get preference/primacy over Section 19 of the Act, and that matter stands concluded.”

(para 4)

10.The words and phrases used in Section 19(1) of the P.C Act itself make it evident that the provision is mandatory in nature. In Surinderjit Singh Mand v. State of Punjab (2016) 8 SCC 722, although this court was dealing with the issue of sanction under Section 197 of CrPC but while doing so it referred to various judgments including the two cases discussed above and emphasized the provision of prior sanction:

“The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt that under Section 197 of the Code and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary prerequisite before a court of competent jurisdiction takes cognizance of an offence (whether under the Penal Code, or under the special statutory enactment concerned). The procedure for obtaining sanction would be governed by the provisions of the Code and/or as mandated under the special enactment. The words engaged in Section 197 of the Code are,

“… no court shall take cognizance of such offence except with previous sanction…”.

Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides—

“19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance … except with the previous sanction ….”

The mandate is clear and unambiguous that a court “shall not” take cognizance without sanction. The same needs no further elaboration. Therefore, a court just cannot take cognizance without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of the learned counsel for the respondents that where cognizance is taken under Section 319 of the Code, sanction either under Section 197 of the Code (or under the special enactment concerned) is not a mandatory prerequisite.”

11.It is a well settled position of law that courts cannot take cognizance against any public servant for offences committed under Sections 7,11,13 & 15 of the P.C. Act, even on an application under section 319 of the CrPC, without first following the requirements of Section 19 of the P.C Act. Here, the correct procedure should have been for the prosecution to obtain sanction under Section 19 of the P.C Act from the appropriate Government, before formally moving an application before the Court under Section 319 of CrPC. In fact, the Trial Court too should have insisted on the prior sanction, which it did not. In absence of the sanction the entire procedure remains flawed. We are completely in agreement by the decision of the High Court and therefore are not inclined to interfere with the impugned order passed by the High Court and accordingly this appeal is hereby dismissed.

Pending application(s), if any, shall also stand disposed of.

Result of the case: Appeal dismissed.

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Evidence – Test identification parade – Relevance – Non-conduct of Test Identification Parade-TIP, effect on prosecution case – On facts, in a brutal murder of a teenager girl allegedly by the main accused and co-accused, conviction and sentence u/s. 302/34, ss. 449, 404 and 201 r/w 302 IPC – Appeal by the co-accused, wherein the High Court upheld the conviction and sentence, in absence of TIP, where accused is a stranger to a witness and there was dock identification made by witness in court during trial – Correctness: Held: In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness – On facts, TIP was not conducted – All the prosecution witnesses who identified the accused in the court were not known to the appellant – They had not seen the appellant prior to the said incident – He was a stranger to both of them – More importantly, both of them have seen the appellant on the date of the crime and that too from a distance while he was wearing a monkey cap which majorly covers the face – Under these circumstances, TIP had become necessary particularly when both the accused, who are alleged to have committed this murder were arrested within two days – No explanation whatsoever has been given by the prosecution and the Investigating Officer as to why TIP was not conducted – High Court also recorded this flaw in the investigation – Not conducting a TIP was a fatal flaw in the police investigation and in the absence of TIP, the dock identification of the appellant will always remain doubtful – Doubt always belongs to the accused – Prosecution has not been able to prove the identity of the appellant beyond a reasonable doubt – Not conducting TIP is fatal for the prosecution – Identification of the accused before the court ought to have been corroborated by the previous TIP which was not done – Thus, the identity of the appellant is in doubt – Appellant could not have been convicted on the basis of a very doubtful evidence as to the appellant’s identity – Impugned order of the High Court set aside – Penal Code, 1860 – s. 302/34, s. 449, 404 and 201 r/w 302. [Paras 10, 11, 12, 13, 15, 16]

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[2024] 7 S.C.R. 87 : 2024 INSC 474

P. Sasikumar v. The State Rep. by the Inspector of Police

(Criminal Appeal No. 1473 of 2024)

08 July 2024

[Sudhanshu Dhulia* and Prasanna B. Varale, JJ.]

Issue for Consideration

High Court, if justified in upholding the conviction of the appellant u/s. 302/34 as well as u/ss. 449, 404 and 201 r/w 302 IPC, in absence of test identification parade, where accused is a stranger to a witness and the trial court accepted the dock identification by such a witness.

Headnotes

Evidence – Test identification parade – Relevance – Non-conduct of Test Identification Parade-TIP, effect on prosecution case – On facts, in a brutal murder of a teenager girl allegedly by the main accused and co-accused, conviction and sentence u/s. 302/34, ss. 449, 404 and 201 r/w 302 IPC – Appeal by the co-accused, wherein the High Court upheld the conviction and sentence, in absence of TIP, where accused is a stranger to a witness and there was dock identification made by witness in court during trial – Correctness:

Held: In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness – On facts, TIP was not conducted – All the prosecution witnesses who identified the accused in the court were not known to the appellant – They had not seen the appellant prior to the said incident – He was a stranger to both of them – More importantly, both of them have seen the appellant on the date of the crime and that too from a distance while he was wearing a monkey cap which majorly covers the face – Under these circumstances, TIP had become necessary particularly when both the accused, who are alleged to have committed this murder were arrested within two days – No explanation whatsoever has been given by the prosecution and the Investigating Officer as to why TIP was not conducted – High Court also recorded this flaw in the investigation – Not conducting a TIP was a fatal flaw in the police investigation and in the absence of TIP, the dock identification of the appellant will always remain doubtful – Doubt always belongs to the accused – Prosecution has not been able to prove the identity of the appellant beyond a reasonable doubt – Not conducting TIP is fatal for the prosecution – Identification of the accused before the court ought to have been corroborated by the previous TIP which was not done – Thus, the identity of the appellant is in doubt – Appellant could not have been convicted on the basis of a very doubtful evidence as to the appellant’s identity – Impugned order of the High Court set aside – Penal Code, 1860 – s. 302/34, s. 449, 404 and 201 r/w 302. [Paras 10, 11, 12, 13, 15, 16]

Evidence – Test identification parade – Relevance of:

Held: Test identification parade-TIP is only a part of Police investigation – Identification in TIP of an accused is not a substantive piece of evidence – Substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in Court during trial – In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness – In a given case, TIP may not be necessary – Non-conduct of a TIP may not prejudice the case of the prosecution or affect the identification of the accused – It would all depend upon the facts of the case – It is possible that the evidence of prosecution witness who has identified the accused in a court is of a sterling nature, thus TIP may not be necessary – It is the task of the investigation team to see the relevance of a TIP in a given case. [Paras 12, 13]

Case Law Cited

Kunjumon v. State of Kerala [2012] 9 SCR 1032 : (2012) 13 SCC 750; Rajesh v. State of Haryana [2020] 14 SCR 1 : (2021) 1 SCC 118; Ravi Kapur v. State of Rajasthan [2012] 10 SCR 229 : (2012) 9 SCC 284; Malkhansingh and Ors. v. State of Madhya Pradesh [2003] Supp. 1 SCR 443 : (2003) 5 SCC 7462; Jayan v. State of Kerala (2021) 20 SCC 38; Amrik Singh v. State of Punjab [2022] 7 SCR 451 : (2022) 9 SCC 402 – referred to.

List of Acts

Penal code, 1860; Code of Criminal Procedure, 1973.

List of Keywords

Test identification parade; Dock identification by witness; Non-conduct of Test Identification Parade; Police investigation.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1473 of 2024

From the Judgment and Order dated 12.01.2017 of the High Court of Judicature at Madras in CRLA No. 574 of 2016

Appearances for Parties

Jayanth Muth Raj, Sr. Adv., C. K. Sasi, Mrs. Malavika Jayanth, Ms. Anupriya, Advs. for the Appellant.

V. Krishnamurthy, Sr. A.A.G., D. Kumanan, Mrs. Deepa. S, Sheikh F. Kalia, Ms. Richa Vishwakarma, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Sudhanshu Dhulia, J.

1.The appellant before us has challenged the order dated 12.01.2017 of the High Court of Madras which has upheld the conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘IPC’) as well as under Section(s) 449, 404 and 201 r/w 302 IPC. He has been, inter alia, sentenced for life imprisonment under Section 302 IPC.

2.It was a brutal murder of a 14-year-old girl committed inside her house on the night of 13.11.2014, allegedly by two accused, one of them being the present appellant before this Court. There is no direct evidence of the crime although there is both ocular as well as forensic evidence placed by the prosecution to prove the murder of the 14-year-old girl, at the hands of the present appellant and another accused, who is accused no.1 and also the main accused. The present accused is accused no.2.

3.The case of the prosecution is largely based on circumstantial evidence. FIR No.408/2014 was lodged on 13.11.2014 at police station Alagapuram by PW-1 Durairaj, who is the father of the deceased. The complainant states that he is working as a Manager at JSP Granite Company at Salem, Tamil Nadu and he has two daughters. The elder daughter had studied engineering from Mahendra Engineering College and is now working in L&T Company, Chennai. His younger daughter was studying in the 8th standard in a local school in Salem. His wife is working as an accountant in a private company. On 13.11.2014 his wife had gone to Chennai to meet their elder daughter as she was not well. The younger daughter (deceased) was alone in the house. That day he had called his younger daughter about 2-3 times, in order to remind her to receive her tiffin but she did not answer his call. He had then made up his mind to return to his house early. When he was climbing the stairs of his house at about 07:15 p.m., after parking his scooter, he saw a person aged about 25 years, walking down the stairs. This man had a helmet in his hand, which he immediately wore on seeing the complainant. He found the door of his house open and his daughter was bleeding profusely from her neck. Meanwhile, neighbors had gathered on hearing his cries and they informed him that two persons had come to his house who had brutally killed his daughter. The deceased was still alive was rushed to the hospital where she was declared dead.

4.The post mortem was conducted on the body of the deceased by Dr. K. Gokularamanan (PW-14) at 10:30 a.m. next day on 14.11.2014 and the following antemortem injuries were found on the deceased –

“1. A well extended broad cut injury on the front side of neck and on both sides extending up to the upper side of Thyroid ligament bone measuring a depth of 14 x 6 up to the depth of the bone and the neck spinal bone present in the underside of injury, Adams apple, muscles and blood vessels were seen on the edges of the injury and blood outflow was seen in the surrounding areas.

2. On the right hand side of the aforesaid injury a cut injury on the lower and outer side was seen which extended up to the backside of neck measuring 12 x 4 depths in the muscles and blood outflow was seen in the surrounding areas. No other injuries were seen on the external parts of the body.”

According to the postmortem report, the cause of death was shock due to the antemortem injuries on the neck and profuse bleeding and the time of death was 12-18 hours prior to the post mortem.

5.Meanwhile the FIR was registered as Case Crime No.408/2014. The two accused were apprehended by the Police on 15.11.2014, at about 10 p.m.

6.Recoveries were made during the investigation on their pointing out which is as follows :-

From the pointing out of accused No. 1 :-

A black colour Pulsar Vehicle without registration number, a black colour helmet, a black colour cell phone with broken glass, a knife with a maroon handle and a checkered blood-stained shirt were recovered.

From pointing out of accused No. 2 i.e. present appellant :-

A dark green monkey cap, a Samsung Galaxy Pro Cell Phone, a blood-stained elephant-coloured jeans and a white/green shirt were recovered.

7.At this juncture, we must also record that although there are two accused in the case and, both were charged for the above offences and faced the trial and were convicted by the Trial Court under Section 302 read with Section 34 IPC apart from other offences such as 449, 404 and 201 r/w 302 IPC, yet there is no record, before this Court of any appeal being filed before the High Court by accused no. 1 who also stands convicted and sentenced for the same offences like the present appellant. This is also mentioned by the High Court while deciding the appeal that they have before them only the criminal appeal of accused No. 2 i.e. the present appellant- Sasikumar, and the court is not aware of any Criminal Appeal being filed by accused no.1 – Yugadhithan. Before us, thus, is only accused no. 2. Accused no.1, who is the main accused inasmuch as it was accused no.1 against whom the prosecution additionally has a case of motive to commit this murder.

8.The prosecution case is that when Harini (PW2)-the elder sister of the deceased was a student in Mahendra Engineering College, accused no. 1 (Yugadhithan) was also studying in the same college and was totally infatuated by her. His feelings were never reciprocated by the elder sister of the deceased. It is because of this reason that he was enraged and had even started stalking the elder sister of the deceased. He had even reached her present place of work L&T Company at Chennai, causing much anxiety to her. PW2 had also complained against accused no. 1 to the principal of Mahendra Engineering College earlier stating that he had been harassing her. The prosecution case further, is that accused no. 1 had threatened the elder sister of the deceased warning her that if she does reciprocate his feelings, he would kill her entire family.

9.But the one who is before us today and whose conviction stands confirmed by the High Court is not accused No.1 but accused no.2. The entire question before us here is of identification of accused no. 2. From all available evidences which the prosecution has placed before the Trial Court, inter alia, in the form of PW-1 and PW-5 have stated that accused No.2 i.e., the present appellant was seen by them wearing a “green colored monkey cap”. When this accused had entered the premises, when he knocked the door of the house of the deceased, when he was coming down from the stairs along with accused no.1 and at all other relevant times the witnesses who have seen and identified the accused no.2 i.e., the present appellant, had seen the appellant for the first time on 13.11.2014 while he was wearing a green colored monkey cap. None of them had seen him earlier. PW-5 who is the closest witness in this case states as under :-

“…I know Duraiaj. It could be 6.30 hours in the evening on 13.11.2014. At that time I was taking good water in balcony at that time a person went wearing monkey cap. Another person went wearing a helmet. The time could be 6.35, 640 hrs in the evening. They both knocked the door of Tejashree house and went inside the house. They both were found talking inside in a sofa. They are the present accused. They were asking phone number with Tejashree for that Tejashree has told them that father has gone out and he has to come. Both the accused and Tejashree were found to be talking. After taking water I went to my home. I informed my house by around 7.00 hrs in the evening that I am going to super market. Later I came back by 7 .25 hrs at that time Sun News was under broadcast when I parked my vehicle and climbed stairs Durairaj came behind me. When I placed the articles in home within 5 minutes I heard the sound of Durairaj. Immediately I went to Durairaj House. After tearing the cloth he was shouting from the place where his daughter was lying. I told Durairaj that 2 person came and went half an hour prior to that. I told Durairaj that they both kept Tejashree sitting and was talking with her. Immediately call was made to ambulance…”

PW-5 is said to have identified the accused later when both the accused were apprehended by the police and were in the hospital. In other words, while these two accused persons were in the custody of the police this particular witness PW-5 was taken to the hospital where he had identified the two accused. This so-called identification, on which much reliance has been placed by the prosecution, was made by PW-5 in the hospital by way of a statement to the police, and it can only be read as a statement under Section 162 of the Criminal Procedure Code which can only be used for the limited purpose as provided under Section 162 of the CrPC itself.

The case of the prosecution is that both the accused were apprehended on 15.11.2014 near the Salem-Coimbatore bye pass fly over. The recovery of incriminating material such as motor bike, weapon, the monkey cap, helmet, clothes etc. were made on the same day. In other words, when the accused were in judicial custody, there is nothing on record to suggest that the investigating officer or the investigating team had taken any permission from the Magistrate for the release of the accused for these recoveries. These recoveries therefore, have no relevance. At this juncture, we must reiterate that our observation in this case and our finding and conclusions are based only on the evidences and the material which is available against the present appellant, it should not be construed in any manner as a finding or a comment on the case of accused no. 1 who is not before us and evidently against whom the prosecution has some more material, including motive. There is also no motive against the present appellant. In fact, the Pulsar bike which has been recovered on pointing out of accused no.1 does not belong to the appellant but was purchased by a person named ‘Satish’ from the showroom and this person ‘Satish’ has never been questioned by the police or produced as a prosecution witness during the trial.

10.The admitted position in this case is that the test identification parade (hereinafter referred to as ‘TIP’) was not conducted. All the prosecution witnesses who identified the accused in the Court such as PW-1 and PW-5 were not known to the present appellant i.e., accused no.2. They had not seen the present appellant prior to the said incident. He was a stranger to both of them. More importantly, both of them have seen the appellant/accused No. 2 on the date of the crime while he was wearing a “green colour monkey cap”!

11.Now, as one is familiar a monkey cap covers the entire face, chin and cheek of a person, leaving only his eyes and nose and part of forehead exposed. These two witnesses (PW-1 and PW-5), had seen the appellant wearing a monkey cap and that too from a distance. Under these circumstances, TIP had become necessary particularly when both the accused, who are alleged to have committed this murder were arrested within two days. The incident is of about 7:00 pm on 13.11.2014 and both of them were arrested at around 10 pm on 15.11.2014. The case of the prosecution is that while they were being arrested, they received injuries as they tried to escape and consequently, they were taken to the Hospital for treatment. It was in the hospital, that PW-1 i.e. father of the deceased and the complainant and PW-5 were taken by the Investigating Officer who are said to have identified the two accused as the one who had committed the crime. No explanation whatsoever has been given by the prosecution as to why TIP was not conducted in this case before a Magistrate as it ought to have been done. In fact, the High Court has recorded this flaw in the investigation at more than one place in its judgment. It has again observed that the Investigating Officer (PW-24) was before the Court and in spite of being questioned as to what the reasons were for not holding TIP in this case, no satisfactory reply was given by him.

12.It is well settled that TIP is only a part of Police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in Court during trial. This identification has been made in Court by PW-1 and PW-5. The High Court rightly dismisses the identification made by PW-1 for the reason that the appellant i.e., accused no.2 was a stranger to PW-1 and PW-1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW-1 made for the first time in the Court was not proper. However, the High Court has believed the testimony of PW-5 who has identified accused no.2 under similar circumstances! The appellant was also stranger to PW-5 and PW-5 had also seen the accused i.e., the present appellant for the first time on that fateful day i.e. on 13.11.2014 while he was wearing a green colour monkey cap. The only reason assigned for believing the testimony of PW-5 is that he is after all an independent witness and has no grudge to falsely implicate the appellant. This is the entire reasoning. We are afraid the High Court has gone completely wrong in believing the testimony of PW-5 as to the identification of the appellant. In cases where accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness (See: Kunjumon v. State of Kerala (2012) 13 SCC 750).

13.After considering the peculiar facts of the present case, we are of the opinion that not conducting a TIP in this case was a fatal flaw in the police investigation and in the absence of TIP in the present case the dock identification of the present appellant will always remain doubtful. Doubt always belongs to the accused. The prosecution has not been able to prove the identity of the present appellant i.e. A-2 beyond a reasonable doubt.

The relevance of a TIP, is well-settled. It depends on the fact of a case. In a given case, TIP may not be necessary. The non conduct of a TIP may not prejudice the case of the prosecution or affect the identification of the accused. It would all depend upon the facts of the case. It is possible that the evidence of prosecution witness who has identified the accused in a court is of a sterling nature, as held by this Court in the case of Rajesh v. State of Haryana (2021) 1 SCC 118 and therefore TIP may not be necessary. It is the task of the investigation team to see the relevance of a TIP in a given case. Not conducting TIP in a given case may prove fatal for the prosecution as we are afraid it will be in the present case.

14.The relevance of TIP has been explained by this Court in a number of cases (Please see: Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284 1, Malkhansingh and Ors. v. State of Madhya Pradesh (2003) 5 SCC 746 2).

15.In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP which has not been done. The emphasis of TIP in a given case is of vital importance as has been shown by this Court in recent two cases of Jayan v. State of Kerala (2021) 20 SCC 38 and Amrik Singh v. State of Punjab (2022) 9 SCC 402. In Jayan (supra), this Court disbelieved the dock identification of the accused therein by a witness and while doing so, this Court discussed the aspect of TIP in the following words:

“It is well settled that TI parade is a part of investigation and it is not a substantive evidence. The question of holding TI parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, TI parade may make the identification of the accused by the witness before the Court trustworthy….”

(Para 18)

16.Under these circumstances, we hold that the identity of the present appellant is in doubt. The appellant could not have been convicted on the basis of a very doubtful evidence as to the appellant’s identity. The appeal is allowed and the impugned order of the High Court dated 12.01.2017 is hereby set aside. The appellant has been in jail for about 8 years as we have been told at the Bar, he shall be released forthwith unless he is required in some other case. We make it absolutely clear that this decision of acquittal is based on the evidence, or lack thereof, which the prosecution has against accused no. 2 i.e. the present appellant. This will absolutely have no bearing on the case of accused no.1.

Result of the case: Appeal allowed.

1 Para 35

2 Para 16

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Evidence – Test Identification Parade (TIP) – Absence of – When fatal – As per the prosecution, the appellant and the co-accused (now deceased) broke into the house of PW-1 and PW-3 to commit robbery when they were not at home and killed their old mother – However, this was witnessed by PW-1 when she returned home at around 12:30 in the afternoon but, she could not enter the room as it was locked from inside – On raising alarm, PW-2, a neighbour came and they both peeped through the window of the bedroom and saw the incident – TIP not conducted, PW-1 and PW-2 identified accused in Court – Trial Court acquitted the accused persons – Acquittal reversed by High Court – Correctness: Held: As per the eyewitnesses, PW-1 and PW-2 they saw the two accused strangulating PW-1’s mother by pulling both ends of the rope – However, their evidence does not corroborate with the post mortem report – The report does suggest that the deceased was indeed strangulated to death but, it could not be in the manner as seen by PW-1 and PW-2 as the ligature mark extended only from one angle of the mandible to the other and no such mark was seen at the back of the neck – Absence of any reasonable explanation as to how PW-1 reached her house in a short span of time of 21/2 hours, after leaving home at 10:00 AM, creates doubt on the prosecution story – Furthermore, appellant was not known to any of the witnesses and more pertinently, the two eyewitnesses – Co-accused was related to the complainant and was thus, known to the eyewitnesses – Hence, there was no requirement of TIP as regards him – But, the appellant was a total stranger to PW-1 and PW-2 – His name ‘Vishwanatha’ came to their knowledge, only after co-accused called him by name exhorting him to run – The identification of an accused in court is acceptable without a prior TIP and absence of TIP may not be fatal for the prosecution – It would depend on facts of each case – In a case where the identity of the accused is not known and TIP has not been conducted, the court has to see if there was any description of the accused either in the FIR or in any of the statement of witness recorded during the investigation – There was none in the present case – There were six persons by the name of ‘Vishwanatha’ in the locality and when there is doubt on the presence of the two star witnesses PW-1 and PW-2 (who identified the accused), the identity of the present appellant remained in doubt – Not safe to convict the appellant solely only on the basis of the testimony of PW1 and PW2 – Prosecution not able to prove its case beyond reasonable doubt – Appellant acquitted by giving him the benefit of doubt – Impugned judgment set aside as far as it relates to the conviction of the appellant. [Paras 13-17, 19]

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[2024] 7 S.C.R. 50 : 2024 INSC 482

Vishwanatha v. The State of Karnataka by the Secretary, Home Department

(Criminal Appeal No. 129 of 2012)

08 July 2024

[Sudhanshu Dhulia* and Prasanna B. Varale,JJ.]

Issue for Consideration

High Court reversing the order of acquittal found the appellant along with co-accused (now deceased) guilty of offences under Sections 302 and 450 read with Section 34 of Penal Code, 1860 and sentenced them. In view of doubt as regards the identity of the appellant, whether it was the accused persons who were responsible for the death of PW-1 and PW-3’s mother.

Headnotes

Evidence – Test Identification Parade (TIP) – Absence of – When fatal – As per the prosecution, the appellant and the co-accused (now deceased) broke into the house of PW-1 and PW-3 to commit robbery when they were not at home and killed their old mother – However, this was witnessed by PW-1 when she returned home at around 12:30 in the afternoon but, she could not enter the room as it was locked from inside – On raising alarm, PW-2, a neighbour came and they both peeped through the window of the bedroom and saw the incident – TIP not conducted, PW-1 and PW-2 identified accused in Court – Trial Court acquitted the accused persons – Acquittal reversed by High Court – Correctness:

Held: As per the eyewitnesses, PW-1 and PW-2 they saw the two accused strangulating PW-1’s mother by pulling both ends of the rope – However, their evidence does not corroborate with the post mortem report – The report does suggest that the deceased was indeed strangulated to death but, it could not be in the manner as seen by PW-1 and PW-2 as the ligature mark extended only from one angle of the mandible to the other and no such mark was seen at the back of the neck – Absence of any reasonable explanation as to how PW-1 reached her house in a short span of time of 21/2 hours, after leaving home at 10:00 AM, creates doubt on the prosecution story – Furthermore, appellant was not known to any of the witnesses and more pertinently, the two eyewitnesses – Co-accused was related to the complainant and was thus, known to the eyewitnesses – Hence, there was no requirement of TIP as regards him – But, the appellant was a total stranger to PW-1 and PW-2 – His name ‘Vishwanatha’ came to their knowledge, only after co-accused called him by name exhorting him to run – The identification of an accused in court is acceptable without a prior TIP and absence of TIP may not be fatal for the prosecution – It would depend on facts of each case – In a case where the identity of the accused is not known and TIP has not been conducted, the court has to see if there was any description of the accused either in the FIR or in any of the statement of witness recorded during the investigation – There was none in the present case – There were six persons by the name of ‘Vishwanatha’ in the locality and when there is doubt on the presence of the two star witnesses PW-1 and PW-2 (who identified the accused), the identity of the present appellant remained in doubt – Not safe to convict the appellant solely only on the basis of the testimony of PW1 and PW2 – Prosecution not able to prove its case beyond reasonable doubt – Appellant acquitted by giving him the benefit of doubt – Impugned judgment set aside as far as it relates to the conviction of the appellant. [Paras 13-17, 19]

Case Law Cited

Mulla v. State of U.P. [2010] 2 SCR 633 : (2010) 3 SCC 508; Malkhansingh v. State of M.P. [2003] Supp. 1 SCR 443 : (2003) 5 SCC 746 – relied on.

List of Acts

Penal Code, 1860.

List of Keywords

Test identification parade; Absence of test identification parade; Order of acquittal reversed; Doubt as regards the identity of the accused; Robbery; Stareyewitnesses; Identity of accused not known; Identification of accused in court; Prior TIP; Description of accused either in FIR/ statement of witness; Benefit of doubt; Case not proved beyond reasonable doubt.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.129 of 2012

From the Judgment and Order dated 06.06.2009 of the High Court of Karnataka at Bengaluru in CRLA No. 1217 of 2002

Appearances for Parties

X M Joseph, Omanakuttan K. K., Antony Ignatius M J, Advs. for the Appellant.

R Nedumaran, D. L. Chidananda, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Sudhanshu Dhulia, J.

1.The appellant in this Criminal Appeal challenges judgement and order dated 06.06.2009 passed by the High Court of Karnataka which has allowed the Criminal Appeal of the State; thereby reversing the order of acquittal of the Trial Court, thus convicting the present appellant of offences under Sections 302 and 450 read with Section 34 of the Indian Penal Code and sentenced him, inter alia, to life imprisonment, under Section 302 of IPC.

2.The case of the prosecution is that Rohini (PW-1) and Rohithaksha (PW-3) were residing with their mother Devaki (deceased; aged 86 y/o) at Kudupu, Mangalore. Devaki was strangulated to death by the present appellant and co-accused Ravikumar. On 26.12.2000 when PW-1, PW-3 and PW-4 (wife of PW-3) were not present in their home, and their 86-year-old mother was alone, the present appellant and the co-accused broke into their house with the intention to commit robbery and killed Devaki. A written complaint was filed before the police at 2:30 p.m. by PW-1 which formed the basis of the FIR which was registered at PS: Mangalore Rural Circle at approximately 3:00 p.m, in which the two accused Ravikumar and the present appellant Vishwanatha were named.

3.In the FIR, it was mentioned that on that fateful day (26.12.2000), she (i.e. PW-1/Complainant), had gone out for some work and when she returned home at about 12:30 in the afternoon, she heard some sound coming from inside her house which alerted her, but she could not enter the room as it was locked from inside. PW-1 then raised an alarm and as a result PW-2, who is a neighbour came for her help. Then both PW-1 and PW-2 managed to peep through the window of the bedroom, where they saw that the accused had twisted a cloth around the neck of the deceased (PW-1’s 86-year-old mother), which they were pulling at the two ends, each holding one end of the rope. PW-1 recognised the first accused as Ravikumar as he was the nephew of PW-4 (the daughter-in-law of the deceased). PW-1 called Ravikumar by name which alerted the two and they escaped.

4.The police submitted its chargesheet on 05.03.2001 against both the accused, who were caught the same day. The case was committed to Sessions and ultimately assigned to the Court of IInd Additional Sessions Judge, Mangalore who framed charges against the accused on 20.09.2001 under sections 450 and 302 read with 34 of IPC. The prosecution examined 18 witnesses and 11 documents as exhibits placed by the prosecution. The Sessions Judge passed its order on 18.12.2001 acquitting both the accused.

5.What weighed with the Sessions Court was the apparent contradictions between the oral testimony and autopsy report. PW-1 and PW-2 who were eye-witnesses to the crime and had identified both the accused and had deposed that the two had committed the murder of Devaki. Dr. Bhaskar Alva, (PW-6) Sr. Specialist in Wedlock District Hospital, Mangalore who conducted the post-mortem of deceased-Devaki on 26.12.2000 had given his opinion that the cause of death was asphyxia as a result of strangulation. The Sessions Court observed that PW-1 and 2 had deposed that cloth was tied around the neck of the deceased which was used to strangulate her, however, PW-6 had deposed there were no ligature marks on the back of the neck of the deceased. Under these circumstances, the Sessions Court discredited the two eye-witnesses, PW-1 and PW-2 and also noted the discrepancies in the deposition of PW-1 as regards the identity of the appellant and consequently his role in the crime.

6.The appeal of the State against this acquittal was allowed by the High Court on 06.06.2009, which reversed the order of acquittal, and found both the accused guilty of offences under Sections 302 and 450 read with Section 34 of IPC and sentenced them to Rigorous Imprisonment for 5 years and Rigorous Imprisonment for life along with fine of Rs. 5,000/- respectively. The High Court held that the contradictions in the case of prosecution were minor and not material enough to warrant acquittal of the accused persons. These were the observations made by the High Court at paragraph 27 of the Impugned Judgement:

“27. Test Identification Parade not being conducted for the identification of accused No. 2 is also not fatal to the prosecution because by 6’O clock in the evening both accused Nos. 1 and 2 were apprehended and produced before the investigating officer P.W.18. It is also apparent on record that when accused No. 1 uttered the name of accused No. 2 both P.Ws. 1 and 2 learnt the name and they had seen exactly what was happening inside the bedroom. Therefore, question of mistaking in identifying accused Nos. 1 and 2 does not arise. However, both P.Ws. 1 and 2 identified accused Nos. 1 and 2 before the Court. The time gap between the date of crime and the evidence being only 10 months, we are of the opinion that it was quite possible for any who witnesses and especially P.W.1 to remember the details of the assailants who took the life of her mother. Therefore, this discrepancy also would not come in the way of the prosecution.”

7.Shortly after the Judgement was passed by the High Court, Ravikumar, who was accused no. 1 passed away. The present criminal appeal thus has been filed on behalf of the remaining accused Vishwanatha.

8.The learned counsel on behalf of the appellant would argue that PW-1 and PW-2 are not credible witnesses pointing again towards the contradictions in their testimony and autopsy report. He would submit that there has been no test identification parade (hereinafter referred to as ‘TIP’) to establish the identity of the appellant who was a total stranger to the two witnesses and in the absence of TIP, the appellant cannot be convicted, as then it cannot be said that the prosecution has proved its case beyond a reasonable doubt.

9.The learned counsel for the State would argue that the High Court has rightly observed that this is not a case of mistaken identity. Further, TIP is not a substantive piece of evidence and absence of TIP would not be fatal for the prosecution case as PW-1 & PW-2 had already identified the accused before the court. As far as discrepancies in the testimonies of the witnesses are concerned, they are minor in nature and do not affect the case of prosecution in any manner.

10.We have heard the submissions of the learned counsel of the State and that of the State and also perused the material on record.

11.In the present case, there are concurrent findings by both the courts below as to the death of the deceased Devaki, being a homicidal death and these findings are corroborated by the testimony of PW-6, the doctor who conducted the autopsy and issued the post-mortem report on 26.12.2000. There cannot be any doubt that the death of the deceased was homicidal and the only question for determination before this Court is whether it is the accused persons who were responsible for this death?

12.PW-1 and PW-2 are the star witnesses of the prosecution. They had deposed during the trial that the two accused had strangulated the deceased to death. PW-1 had said that on the day of the incident, she left home at around 9:30 in the morning and when she returned at 12:30 in the afternoon she found that her room was bolted from inside and then she heard her mother screaming. It was then that she called PW-2 for help. PW-1 further states that she saw through the window both the accused strangulating her mother by pulling the rope at the two ends. She further states, that when PW-1 called one of the accused Ravikumar by name, who she immediately recognised being their relative, Ravikumar called the name of the other accused i.e., the present appellant and the two escaped. The relevant extract of the deposition given by PW-1 on 22.10.2001 before the trial court is reproduced below:

“…When I came to courtyard of our house I heard sound full of pain and scream. I found that both the bolts of the house was locked inside. Immediately I called my neighbour Rajesh. He came there. Since Northern side of window was kept opened my self and Rajesh peeped inside the room…………we saw in the western side of the room and found Accused Ravi, who is standing before the Court now and he used to twist the cloth rope and put round the neck and caught one end of rope. Another end of the rope was in the hands of another person. They were tightening the rope, which was round the neck of my mother. I made a big noise. I addressed Accused Ravi “what he is doing” (In Tulu ‘Dane Malpuva’). What is he doing, I asked. Immediately he (Accused Ravi) told Accused Vishwananth that “the work is spoiled”, you run (In Tulu ‘KelasaKettand’). Said accused ran through the back door of the house, after unlocking bolts. My neighbour Rajesh followed them in the back of them……..when seeing my mother I found her right leg and right hand was in twisting condition and found no clothes on the body of my mother and found little temperature in the body. Immediately called Dr.K.B Shetty by phone…..After 10 minutes from my phone call, doctor came there. After coming to our house, said doctor examined my mother and told us that she was dead….”

PW-2 also claimed to have seen the incident from the window along with PW-1 and he then narrates his unsuccessful attempt to catch the accused persons. The relevant portion of PW-2’s examination-in-chief is as follows:

“When seeing through the window we found mother of Rohini (PW-1), Smt. Devaki (deceased) was on the cot. On the right side of Devaki, Ravikumar was standing and in another side another accused was standing. We found cloth was rolled round neck of Devaki. The one end of cloth rope was found in the hands of 1st Accused and cloth ropes another end was found in the hands of 2nd Accused. Both accused were, found dragging the cloth rope on both sides…………Accused ran away through back door of the house.”

13.The above evidence of PW-1 and PW-2, all the same, does not corroborate with the post mortem report, which shows that the ligature marks, though round the neck, but are missing on the back of the neck. If the testimony of PW-1 and PW-2 is to be believed then the ligature marks should have been all round the neck, including the back. The ante mortem injuries in the post mortem report are as follows:

“On examination, I found the following external injuries:

(i)Ligature mark round the neck above the thyroid cartilage, extending from 1 angle of mandible to the other- size 8”× ¾”

(ii)Finger nail marks over the tip of the nose.

(iii)Fracture of both legs below the knee and fracture of right forearm below the elbow”

The report does suggest that the deceased was indeed strangulated to death. But it could not be in the manner as seen by PW-1 and PW-2 (who had seen the two accused strangulating the 86 years old woman by pulling both ends of the rope) as the ligature mark extended only from one angle of the mandible to the other and no such mark was seen at the back of the neck. Had the strangulation been in the manner as described by PW-1 and PW-2, the ligature marks would have been different.

14.The aspect which perhaps weighed heavily in the mind of the Trial Court which had acquitted the two accused was the fact that the first complaint, inquest report, the ‘autopsy report’ and the ocular evidence of PW-1 (also of PW-2) did not match. Having regard to the positioning of the bed on which the deceased was allegedly strangulated, the trial court has given a finding that it would be highly improbable for two persons to strangulate the deceased by pulling the two ends of the rope of cloth from behind, since the cot was touching the northern and western walls. Moreover, the fact that Dr. K.B Shetty, (who was the first doctor to examine the deceased within 10 minutes of the incident), was never examined by the prosecution. The absence of any reasonable explanation as to how PW-1 reached her house in a short span of time of 21/2 hours, after leaving home at 10:00 AM1, creates doubt on the prosecution story. Trial Court also expressed its doubt as to the involvement of the present appellant (Accused No.2), as no TIP was conducted. This aspect was argued at length before this Court as well, since it goes to the very root of any criminal trial. Admittedly, no TIP was conducted in the present case. This Court in Mulla v. State of U.P., (2010) 3 SCC 508 had emphasized the scope and object of TIP as follows:

“55. The identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.”

15.This Court in Malkhansingh v. State of M.P (2003) 5 SCC 746 2 has held that:

“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.”

In the case at hand, it is an admitted position that the Appellant was not known to any of the witnesses and more pertinently, the two eyewitnesses, PW1 and PW2.

16.Coming back to the facts and circumstances of the present case, it is an admitted fact that Ravikumar (Accused No.1, now deceased) was known to the eyewitnesses and was also related to the complainant. Hence, there was no requirement of TIP as regard to Ravikumar (accused no.1). But the case of appellant- Vishwananth stands on a different footing. He was a total stranger to the two eye witnesses i.e. PW-1 and PW-2. The name ‘Vishwanath’ came to their knowledge, only after Ravikumar (Accused no. 1) called his co-accused, by name exhorting him to run. In a case where the identity of the accused is not known and TIP has not been conducted, the court has to see if there was any description of the accused either in the FIR or in any of the statement of witness recorded during the investigation. There is none in the present case.

The identification of an accused in court is acceptable without a prior TIP and absence of TIP may not be fatal for the prosecution. It would depend on facts of each case. In the case at hand, though the appellant was identified in court by PW-1 and PW-2, the Trial Court did not attach much weight to it, as no identification proceedings were conducted, and the Court found it unsafe to acknowledge the identity merely on the basis of identification in the Court.

In the present case, where there are six persons by the name of ‘Vishwanatha’ in the locality and where this Court has doubts on the presence of the two star witnesses PW-1 and PW-2 (who have identified the accused), we are of the opinion that the identity of the present appellant remained in doubt.

17.Another fact which casts a doubt on the identity of the present appellant, is that there is no description in the FIR of ‘Vishwanatha’ except that his name is mentioned. He then becomes the first of the two to be arrested by the police. Learned counsel of the appellant would submit that there were six persons by the name of ‘Vishwanantha’ in Kudupu village at the relevant point of time, a fact which was placed by the defence during trial, which has not been confronted. In such a situation, it was the duty of the prosecution to show as to how and on what basis, the appellant came to be apprehended by the police. The Sub-Inspector, PS-Mangalore Rural (PW-19), who apprehended the appellant, had also failed to explain how he came to apprehend the appellant without any information regarding his description. In his examination-in-chief, the Sub-Inspector (PW-19) explained the arrest of the appellant in the following manner:

“2. In respect of this case, crime no.388-2000 on 26.12.2000 my inspector instructed me to find out the accused. The same day myself and my staff taken into custody the accused Vishwananth at 4:30 PM near Goraksha Jnana Mandira, Near Kadri Park, Mangalore. Said accused is before the Court. I identify him. With the help of Vishwanath we had arrested another accused, Ravi Kumar at 5 P.M in a ‘Galli’ near State Bank of Mysore, Silver gate, Kulashekara, Mangalore…”

A perusal of the testimony of the Sub-Inspector/PW-19 indicates that there is not even a whisper as to what formed the basis of the appellant’s arrest. He was cross-examined and what was gathered from his cross-examination is that the appellant was arrested in absence of any independent witnesses and without preparing any arrest memo. All these facts combined together cast a doubt on the identity of the appellant. Thus, it is not safe to convict the appellant solely only on the basis of the testimony of PW1 and PW2, which itself.

18.Another aspect which needs to be considered is that the prosecution case rests primarily on the evidence of PW-1 and PW-2, who were the star witnesses. The admitted case of the prosecution is that PW-1, who is the daughter of the deceased, had gone out for some household work and there was no one in the house when the crime was committed. First, PW-1 had gone to a place named ‘Kulshekara’ and then to the Post Office, and in the end to her uncle’s house at ‘Ullal’. The distance between her residence at Kudupu and Ullal is about 20 km. She first walks some distance and then catches a bus to reach Kulshekara and from there she went to the post office, and after attending to her work, she takes a bus to go to her uncle’s house at Ullal. Finally, she returned home in Kudupu and all of this was done by her within a period of 2½ hours. But this is not enough, as per the prosecution version, she also reached her house at the very moment when the deceased was being strangulated and then peeping through the window pane, she witnessed the two accused pulling the two ends of the rope. She called Accused no. 1-Ravikumar by his name, which led to the two accused fleeing from the spot and PW-2 who is the neighbour, chased them but in vain. This whole story of the prosecution is unbelievable for more reasons than one. Even if it is assumed for the sake of argument that PW-1 had reached the house at the exact time when the crime was being committed, the testimony to the effect that her mother was strangulated to death by a rope-like material, in the manner narrated by her, is not corroborated by the post-mortem report where ligature marks on the neck were not found to be encircling the neck in a round manner, as it should have been in such a case of strangulation. There were no ligature marks on the back of the neck. As discussed earlier, the marks were only on the front side extending from one angle of the mandible to the other. We therefore conclude that the prosecution has not been able to prove its case beyond reasonable doubt.

19.In view of the above, we allow this appeal and acquit the appellant in this case by giving him the benefit of doubt. Consequently, the impugned judgment and order dated 06.06.2009 is set aside as far as it relates to the conviction of the appellant, and the order of acquittal of the Trial Court is upheld qua the appellant. The appellant, who is already on bail, need not surrender. His bail bonds and sureties stand discharged.

Pending application(s), if any, also stand(s) disposed of.

Result of the case: Appeal allowed.

1 The complaint (Ex.P1) given by PW-1 to the PSI on the spot, mentions that she left her house at around 10.00 am, whereas in her deposition before the Trial Court, she mentions the time as 9.30 am.

2 Para 7.

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Evidence – Extra-judicial confession – Dying declaration – Reliance upon, when – Murder case wherein prosecution case based on the evidence of eyewitnesses, extra-judicial confession made by the appellant-accused to his employer, and the dying declaration made by the victim to one of the prosecution witness – Though few prosecution witnesses who were eyewitnesses turned hostile, courts below relied upon certain parts of their testimony – High Court disbelieved the testimony of the appellant’s employer and the prosecution witness to whom dying declaration was made – Conviction and sentence of the appellant for offence punishable u/s. 302 IPC – Correctness: Held: Normal rule of human conduct is that a person would confess the commission of a serious crime to a person in whom he has implicit faith – It is unnatural that the appellant-accused would call his employer-prosecution witness with whom he worked barely for five months on the phone and confess, and further call him to the Bus Station – Furthermore, the employer admittedly did not disclose to the police the telephone number from which he allegedly received a call from the appellant – No investigation was made to ascertain the said phone number as also the phone number from which the employer called PSI – It was necessary for the prosecution to collect evidence on these aspects and place it before the Court – Though the employer stated that the appellant again made extra-judicial confession at the Bus Station in the presence of PSI, the prosecution did not examined PSI as a witness – Statement of PSI not recorded during the investigation – Alleged confession made by the appellant before PSI could not be proved against the appellant – Hence, the prosecution’s evidence regarding extra-judicial confession cannot be believed – It was PSI who took the appellant into custody – Hence, PSI was a crucial witness – Vital prosecution witness was withheld from the Court – Moreover, the manner in which the appellant was taken into custody becomes highly suspicious as it was not even recorded in the arrest panchnama that PSI arrested the appellant – Thus, not possible to rely upon the evidence of the employer – Prosecution case regarding the dying declaration made to one of the prosecution witness does not inspire confidence at all – Also, on perusal of the evidence of the hostile prosecution witnesses, nothing in the evidence to be relied upon by the prosecution for connecting the appellant with the murder of the deceased – Appellant’s conviction cannot be sustained – Conviction and sentence of the appellant set aside – Penal Code, 1860 – s. 302 – Evidence Act, 1872. [Paras 7, 8, 10, 14, 15]

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[2024] 7 S.C.R. 41 : 2024 INSC 475

Lal Mohammad Manjur Ansari v. The State of Gujrat

(Criminal Appeal No. 3524 of 2023)

08 July 2024

[Abhay S. Oka* and Ujjal Bhuyan, JJ.]

Issue for Consideration

Conviction and sentence of the appellant for offence punishable u/s. 302 IPC, if justified.

Headnotes

Evidence – Extra-judicial confession – Dying declaration – Reliance upon, when – Murder case wherein prosecution case based on the evidence of eyewitnesses, extra-judicial confession made by the appellant-accused to his employer, and the dying declaration made by the victim to one of the prosecution witness – Though few prosecution witnesses who were eyewitnesses turned hostile, courts below relied upon certain parts of their testimony – High Court disbelieved the testimony of the appellant’s employer and the prosecution witness to whom dying declaration was made – Conviction and sentence of the appellant for offence punishable u/s. 302 IPC – Correctness:

Held: Normal rule of human conduct is that a person would confess the commission of a serious crime to a person in whom he has implicit faith – It is unnatural that the appellant-accused would call his employer-prosecution witness with whom he worked barely for five months on the phone and confess, and further call him to the Bus Station – Furthermore, the employer admittedly did not disclose to the police the telephone number from which he allegedly received a call from the appellant – No investigation was made to ascertain the said phone number as also the phone number from which the employer called PSI – It was necessary for the prosecution to collect evidence on these aspects and place it before the Court – Though the employer stated that the appellant again made extra-judicial confession at the Bus Station in the presence of PSI, the prosecution did not examined PSI as a witness – Statement of PSI not recorded during the investigation – Alleged confession made by the appellant before PSI could not be proved against the appellant – Hence, the prosecution’s evidence regarding extra-judicial confession cannot be believed – It was PSI who took the appellant into custody – Hence, PSI was a crucial witness – Vital prosecution witness was withheld from the Court – Moreover, the manner in which the appellant was taken into custody becomes highly suspicious as it was not even recorded in the arrest panchnama that PSI arrested the appellant – Thus, not possible to rely upon the evidence of the employer – Prosecution case regarding the dying declaration made to one of the prosecution witness does not inspire confidence at all – Also, on perusal of the evidence of the hostile prosecution witnesses, nothing in the evidence to be relied upon by the prosecution for connecting the appellant with the murder of the deceased – Appellant’s conviction cannot be sustained – Conviction and sentence of the appellant set aside – Penal Code, 1860 – s. 302 – Evidence Act, 1872. [Paras 7, 8, 10, 14, 15]

List of Acts

Penal Code, 1860; Evidence Act, 1872.

List of Keywords

Extra-judicial confession; Dying declaration; Eyewitnesses.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3524 of 2023

From the Judgment and Order dated 05.03.2013 of the High Court of Gujarat at Ahmedabad in CRLA No. 2436 of 2005

Appearances for Parties

Rajat Bhardwaj, Mohd.Ainul Ansari, Manoj Kumar Goyal, Ms. Ankita M.Bhardwaj, Rishabh Goyal, Kaustubh Khanna, Advs. for the Appellant.

Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

1.The appellant-accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code (for short, ‘IPC’) by the Sessions Court. By the impugned judgment, the High Court has confirmed the appellant’s conviction. The appellant has been sentenced to undergo life imprisonment.

FACTUAL ASPECT

2.The appellant raised a plea of juvenility. By the order dated 10th April 2023, this Court directed the Trial Court to hold an inquiry into the plea of juvenility. Accordingly, an order was made by the learned Trial Judge on 8th April 2023. The learned Trial Judge held that the appellant was not a juvenile in conflict with the law on the date of the commission of the offence. After that, leave was granted, and the appeal was heard on merits.

3.The incident occurred on 6th September 2004. The accused was staying in room no. 3 rented to him by PW-3 - Alimuddin Amiruddin Shaikh. According to the prosecution, the deceased – Mohmed Akhtar Gafur Ansari, was also staying in the room no. 3, along with the appellant. There was a dispute between them about playing music. The dispute led to an altercation in which the appellant attacked the deceased. The injuries sustained by the deceased caused his death. The prosecution case is based on the evidence of eyewitnesses PW-3 to PW-9, extra-judicial confession by the appellant made to PW-19 - Mohammad Afroz and dying declaration made by the deceased to PW-24 - Mohd. Rafiq. Though PW-3 to PW-9 were declared hostile, the Trial Court and High Court have relied on certain parts of their testimony. The High Court has believed the testimony of PW-19 and PW-24.

SUBMISSIONS

4.The learned counsel appearing for the appellant has taken us through the testimony of hostile eyewitnesses. By pointing out the findings of the High Court, he submitted that, firstly, certain statements made by the eyewitnesses out of context could not be relied upon by the prosecution. Secondly, the testimony of the said witnesses does not support the prosecution. Pointing out the evidence of PW-19, he submitted that according to the witness, he was the appellant’s employer. According to him, the appellant made a phone call to him at 3.30 p.m. on the date of the incident and informed him that he had murdered his roommate. He pointed out that no investigation has been made about the phone from which this call was made. Moreover, he pointed out that though PW-19 claims that he informed PSI Mishra of Limbayat Police Station about the confession and called him to Central Bus Station, PSI Mishra has not been examined as a witness. He pointed out that according to the prosecution’s case, even at Central Bus Sation, the appellant allegedly made the second extra-judicial confession in the presence of PSI Mishra. Therefore, the omission to examine PSI Mishra becomes fatal to the prosecution case. He pointed out that the prosecution case was that it was PSI Mishra who took the appellant into custody and produced before PW-25. The version of PW-25, the Investigating Officer, appears to be doubtful. He submitted that the entire prosecution case cannot be believed.

5.The learned counsel appearing for the State submitted that though the eyewitnesses were declared hostile, their testimony cannot be entirely discarded. She submitted that the evidence of the said witnesses brings on record the fact that at the time of the murder of the deceased, he, along with the appellant, were staying together in room no. 3 of the building owned by PW-3. Learned counsel pointed out the evidence of PW-4 (Salehabanu). In the cross-examination made by the learned public prosecutor, the witness stated that she first saw the appellant running towards the stairs from the lobby, and immediately after that, the deceased was found in a heavily bleeding condition. She pointed out that the witness’s evidence proved that the appellant and the deceased were quarrelling. The witness heard shouts of “save, save” from the appellant’s room. She also pointed out that even the evidence of PW-7 - Najma brings on record that she had seen the deceased bleeding in the gallery of the building and was shouting “save, save” at that time. The witness saw the appellant coming down from the building and was seen cleaning blood stains from his shirt. She pointed out that even the evidence of PW-14 – Sagufta Parvin shows that the deceased was murdered in room no. 3 where the deceased, along with the appellant, were staying together. She further submitted that PW-19 was the appellant’s employer; therefore, it was natural that the appellant would confide with his employer about his guilt. She submitted that there is no reason to discard the testimony of PW-19, which proves extra-judicial confession. Similarly, there is no reason to discard the testimony of PW-24 before whom a dying declaration was made by the deceased that the appellant murdered him. The learned counsel submitted that there is no reason to interfere with the impugned judgments, which contain elaborate findings recorded after making a detailed analysis of the evidence of the prosecution witnesses.

CONSIDERATION OF SUBMISSIONS

6.We have minutely scanned the testimony of the prosecution witnesses. Firstly, we will deal with evidence of PW-19, who claims that the deceased made an extra-judicial confession before him. Even though this witness was declared hostile, the prosecution relied upon a part of his testimony. We are summarising the statements made by PW-19 in his examination-in-chief, in his cross-examination made by the learned public prosecutor after he was declared hostile and in the cross-examination made by the learned counsel appearing for the appellant. The summary of his version is as follows:

a)The appellant worked in his textile store for five months in 2004 till the first week of September 2004;

b)In September 2004, he received a call from the appellant around 3.30 p.m. and on the phone, the appellant informed him that he had killed his room partner;

c)The appellant called PW-19 to the Central Bus Station near Surat Railway Station;

d)Thereafter, PW-19 made a phone call to PSI Mishra of Limbayat Police Station and called him to the Central Bus Station;

e)PSI Mishra came to the Central Bus Station, where they met the appellant. The appellant again reiterated that there was a quarrel between him and his room partner over playing a tape recorder, and that he had murdered his room partner;

f)PW-19 stated that though the appellant had told him the name of the person who was murdered, he was unable to recollect the name;

g)In the cross-examination by the learned public prosecutor, he was confronted with the relevant part of his statement recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’). He accepted of having made the statement. He stated that the appellant had told him that he had murdered Mohmed Akhtar Gafur Ansari;

h)In the cross-examination made by learned counsel appearing for the appellant, he stated that PSI Mishra took the appellant with him, and there were two or three policemen with him;

i)He did not remember whether he stated to the police the phone number from which he made a phone call to PSI Mishra; and

j)He admitted that he did not disclose the phone number from which the appellant called him.

7.The normal rule of human conduct is that a person would confess the commission of a serious crime to a person in whom he has implicit faith. The appellant had worked in PW-19’s shop only for five months in 2004. The appellant was otherwise not known to PW-19. Therefore, it is unnatural that the appellant would call the deceased on the phone and confess. Moreover, PW-19 stated that the appellant called him to the Central Bus Station after confessing on the phone. Even this conduct is very unnatural. Furthermore, PW-19 admittedly did not disclose to the police the telephone number from which he allegedly received a call from the appellant. As can be seen from the testimony of PW-25, Investigating Officer, no investigation was made to ascertain the phone number on which PW-19 received a call from the appellant and the phone number from which PW-19 called PSI Mishra. It was necessary for the prosecution to collect evidence on these aspects and place it before the Court. Though PW-19 stated that the appellant again made extra-judicial confession at the Central Bus Station in the presence of PSI Mishra, the prosecution has not examined PSI Mishra as a witness. According to the testimony of PW-25, statement of PSI Mishra was not recorded during the investigation. In any event, the alleged confession made by the appellant before PSI Mishra cannot be proved against the appellant in view of Section 25 of the Indian Evidence Act, 1872. Hence, the prosecution’s evidence regarding extra-judicial confession cannot be believed.

8.PW-19 stated that PSI Mishra and two to three other constables took the appellant away. Thus, it was PSI Mishra who took the appellant into custody. Hence, PSI Mishra was a crucial witness. A vital prosecution witness has been withheld from the Court. Nothing is placed on record to show that PSI Mishra made any official record to show that he had taken the appellant into custody. PW-25, the Investigating Officer, stated that PSI Mishra and other police personnel were tracing the appellant in the market as he was working there. He further noted that PSI Mishra produced the appellant at the police station and was shown as arrested at 9.30 p.m. on that day. Thus, PW-25 did not state that PSI Mishra went to the Central Bus Station upon receiving a phone call from PW-19, and that he nabbed the appellant at the Bus Station. The version of PW-25 is entirely different. In the cross-examination, PW-25 specifically admitted that he did not record the statement of PSI Mishra. He stated that he arrested the appellant when PSI Mishra produced him. Further, in the cross-examination, PW-25 stated that in the panchnama of arrest, it is not mentioned that PSI Mishra produced the appellant before him. He stated that he had no information about the time, in whose presence and from which place PSI Mishra arrested the appellant. In further cross-examination, he stated that he was not aware that PSI Mishra met the appellant at Central Bus Station in the presence of the appellant’s employer. He denied that PSI Mishra kept the appellant in custody and produced the appellant before him. Thus, it is impossible to believe the testimony of PW-19 that he conveyed the appellant’s extra-judicial confession to PSI Mishra. Moreover, the manner in which the appellant was taken into custody becomes highly suspicious as it is not even recorded in the arrest panchnama that PSI Mishra arrested the appellant. Apart from the fact that it is very difficult to believe that the appellant confessed before PW-19, the further part of the testimony of PW-19 makes his testimony extremely doubtful as the prosecution has withheld PSI Mishra from the Court. Therefore, it is not possible to rely upon the evidence of PW-19.

9.Now, we come to the theory of dying declaration made by the deceased before PW-24. In the examination-in-chief, PW-24 stated that after he heard that his friend (deceased) was injured, he rushed to the site and found that the deceased was fully covered in blood, and he disclosed that the appellant was the author of the injuries. In the cross-examination by the learned public prosecutor, he denied having made such a statement before the police. In the cross-examination by the learned public prosecutor, the witness was confronted with his prior statement recorded by the police. The relevant part of the cross-examination reads thus:

“Such has not happened and been dictated by me in my statement before police that, ‘Therefore, when I was coming downstairs, I saw Lal Mohammad, staying with Mohammad Akhtar, running on the road towards Limbayat Police Station.

…Therefore, I called rickshaw and landlord Alimuddin Shaikh and I took Mohammad Akhtar for treatment in the rickshaw and at that time, I saw Mohammad Akhtar had sustained injuries on throat and head and it was bleeding continuously. At that time, I asked Mohammad Akhtar and he told me, I had an altercation and quarrel with Lal Mohammad, staying with me, regarding playing a tape recorder and therefore, Lal Mohammad caused injuries to me using a knife and ran away.”

…………………………………………………………..”

Thus, the witness stated that he did not dictate to the police the statement with which he was confronted. In the cross-examination by the advocate for the appellant, he admitted that when he informed Limbayat Police Station, a policeman came in an auto-rickshaw. The policeman, along with two or three other persons, brought the deceased down and put him in the auto-rickshaw. The police personnel and the other two to three persons were not examined as witnesses. He stated that the deceased was unconscious at that time. So, when the deceased was put in the auto-rickshaw, he was not in a position to speak.

10.At this stage, we may also refer to the testimony of PW-3, who was the complainant and landlord of the appellant. He stated that when he went to the place where the deceased was lying in a heavily bleeding condition, the deceased did not disclose anything to him, and there was no conversation when the deceased was taken by him by an auto-rickshaw to the hospital. Therefore, the prosecution story regarding the dying declaration made to PW-24 does not inspire confidence at all.

11.Now, we turn to the evidence of the eyewitnesses who were declared hostile. PW-3, according to the prosecution, was the witness before whom the deceased made a dying declaration while he was being carried in an auto-rickshaw. PW-3 did not support the prosecution on this aspect, and PW-24 claimed that when the deceased was put in an auto-rickshaw, he was not conscious. PW-3 stated that he heard a quarrel between the appellant and the deceased. When the witness was confronted with his police statement in the cross-examination, he denied having made such a statement. PW-4 was declared as hostile. When he was confronted with relevant part of his police statement, he denied to have made the statement.

12.The High Court has relied upon the testimony of PW-7, who was again declared hostile. In the cross-examination made by the public prosecutor, PW-7 accepted that she informed the police that she saw the appellant going down, and while going down, he was cleaning the blood off his clothes. However, in the cross-examination made by the advocate for the accused, she stated that except for seeing the deceased in injured condition, she had not seen anything else and that she was not aware of the persons who were involved in the incident.

13.The High Court held that the evidence of PW-9 Kalu Shaikh, another hostile witness, proves the appellant’s presence at the time of the incident. In cross-examination by the advocate for the accused, PW-9 stated that he did not know the appellant and the deceased before the incident. He stated that he was unable to identify the appellant. He stated that except for hearing the shouts “save, save,” he knew nothing.

14.Therefore, after having carefully perused the evidence of the hostile prosecution witnesses (PW-3 to PW-9), we find that there is nothing in the evidence which could be relied upon by the prosecution for connecting the appellant with the murder of the deceased.

15.Thus, the appellant’s conviction cannot be sustained for the above reasons. Accordingly, the appeal is allowed. The conviction and sentence of the appellant are set aside, and the appellant is acquitted of the offence alleged against him in Sessions Case No. 80 of 2005, decided by the 3rd Fast Track Court, Surat arising out of CR No. I/142/2004 of Limbayat Police Station. The appellant shall be set at liberty unless he is required to be detained in connection with any other case.

Result of the case: Appeal allowed.

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Code of Civil Procedure, 1908 – s.11 – Res judicata – Rights of co-defendants – The title suit no.9/89 of the plaintiff-appellant was decreed by the Court of the first instance – In appeal, the First appellate Court reversed the decree on the ground that the suit was hit by the principle of res judicata in view of an earlier suit no.8/64 instituted by M wherein the plaintiff-appellant was defendant no.2 – The second appeal was dismissed on the ground that it did not state any substantial question of law – Propriety: Held: The lis in the previous suit i.e. Suit No.8/64 was regarding ownership and entitlement of M over the entire 5.38 acres of land of village Ramgarh qua the Cantonment Board, Ramgarh; the plaintiff-appellant and other defendants in the said suit; whereas the controversy in the present suit is quite distinct with regard to only 0.30 acres of the suit land vis-à-vis the plaintiff-appellant and the Cantonment Board, Ramgarh – The suit, as filed by M claiming right, title and interest over 5.38 acres of land of village Ramgarh was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant over the suit land vis-à-vis the Cantonment Board, Ramgarh – It is a settled law that the principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants – In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict – In the instant case, there was no conflict of interest between the co-defendants in the earlier Suit No. 8 of 64 inasmuch as the plaintiff-appellant was independently claiming rights over 0.30 acres of suit land whereas the Cantonment Board, Ramgarh was claiming rights over 2.55 acres of the land which formed part of the Estate of R without asserting that the land settled in its favour is the same as claimed by plaintiff-appellant or that there was any encroachment upon the land settled in its favour – M was claiming the entire Estate of 5.38 acres of land and her claim was defeated as she was unable to prove the grant of the said land in her favour with no specific finding by the court regarding the claims set up by the codefendants, the inter se dispute of the co-defendants as raised in the present suit never came to be adjudicated – In view of the facts and circumstances, the principle of res judicata is not attracted – As far as claim of the plaintiff-appellant is concerned, the plaintiff-appellant by sufficient evidence has proved the settlement of the suit land by the R in his favour – It stands proved by the Amin report (Exh.8) dated 15.04.1942 20 and the Hukumnama (Exh.9) dated 07.04.1943 as well as the Rent receipt (Exh.6, 6/A and 7) – The order of the Additional Collector, Hazaribagh dated 07.01.1963 (Exh.16) directing realization of rent from the plaintiff-appellant also confirms the above settlement and its subsequent approval by the State on enhancement of rent – All these documents have not been confronted by the other side – The fact that the name of the plaintiff-appellant was also mutated in the revenue records proves it beyond doubt, in the absence of any contrary evidence that he is in possession of the suit land. [Paras 20, 21, 23, 25, 33]

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[2024] 7 S.C.R. 29 : 2024 INSC 467

Har Narayan Tewari (D) Thr. Lrs. v. Cantonment Board, Ramgarh Cantonment & Ors.

(Civil Appeal No. 8829 of 2010)

08 July 2024

[Abhay S. Oka and Pankaj Mithal,* JJ.]

Issue for Consideration

Whether the present suit (claiming title and possession over the suit land) as filed by the plaintiff-appellant was barred under Section 11 CPC on principle of res judicata inasmuch as there was no adjudication of the rights of the co-defendants (including appellant) in the previous suit with regard to the suit land and the issue therein was not directly or indirectly and substantially the same as in the present suit.

Headnotes

Code of Civil Procedure, 1908 – s.11 – Res judicata – Rights of co-defendants – The title suit no.9/89 of the plaintiff-appellant was decreed by the Court of the first instance – In appeal, the First appellate Court reversed the decree on the ground that the suit was hit by the principle of res judicata in view of an earlier suit no.8/64 instituted by M wherein the plaintiff-appellant was defendant no.2 – The second appeal was dismissed on the ground that it did not state any substantial question of law – Propriety:

Held: The lis in the previous suit i.e. Suit No.8/64 was regarding ownership and entitlement of M over the entire 5.38 acres of land of village Ramgarh qua the Cantonment Board, Ramgarh; the plaintiff-appellant and other defendants in the said suit; whereas the controversy in the present suit is quite distinct with regard to only 0.30 acres of the suit land vis-à-vis the plaintiff-appellant and the Cantonment Board, Ramgarh – The suit, as filed by M claiming right, title and interest over 5.38 acres of land of village Ramgarh was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant over the suit land vis-à-vis the Cantonment Board, Ramgarh – It is a settled law that the principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants – In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict – In the instant case, there was no conflict of interest between the co-defendants in the earlier Suit No. 8 of 64 inasmuch as the plaintiff-appellant was independently claiming rights over 0.30 acres of suit land whereas the Cantonment Board, Ramgarh was claiming rights over 2.55 acres of the land which formed part of the Estate of R without asserting that the land settled in its favour is the same as claimed by plaintiff-appellant or that there was any encroachment upon the land settled in its favour – M was claiming the entire Estate of 5.38 acres of land and her claim was defeated as she was unable to prove the grant of the said land in her favour with no specific finding by the court regarding the claims set up by the codefendants, the inter se dispute of the co-defendants as raised in the present suit never came to be adjudicated – In view of the facts and circumstances, the principle of res judicata is not attracted – As far as claim of the plaintiff-appellant is concerned, the plaintiff-appellant by sufficient evidence has proved the settlement of the suit land by the R in his favour – It stands proved by the Amin report (Exh.8) dated 15.04.1942 20 and the Hukumnama (Exh.9) dated 07.04.1943 as well as the Rent receipt (Exh.6, 6/A and 7) – The order of the Additional Collector, Hazaribagh dated 07.01.1963 (Exh.16) directing realization of rent from the plaintiff-appellant also confirms the above settlement and its subsequent approval by the State on enhancement of rent – All these documents have not been confronted by the other side – The fact that the name of the plaintiff-appellant was also mutated in the revenue records proves it beyond doubt, in the absence of any contrary evidence that he is in possession of the suit land. [Paras 20, 21, 23, 25, 33]

Case Law Cited

Govindammal (Dead) by Legal Representatives and Ors. v. Vaidiyanathan and Ors. [2018] 11 SCR 1092 : (2019) 17 SCC 433 – referred to.

List of Acts

Code of Civil Procedure, 1908.

List of Keywords

Principle of res judicata; Section 11 of Code of Civil Procedure, 1908; Rights of co-defendants; Claim of right, title, interest; Conflict of interest between the co-defendants.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8829 of 2010

From the Judgment and Order dated 01.04.2009 of the High Court of Jharkhand at Ranchi in SA No.266 of 2006

Appearances for Parties

Manoj Goel, Sr. Adv., Mrs. Smriti Prasad, Vinayak Goel, Mrs. S. Gupta, Shuvodeep Roy, Advs. for the Appellants.

Manoj Swarup, Sr. Adv., Ms. Madhurima Tatia, Adv. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Pankaj Mithal, J.

1.Shri Manoj Goel, learned senior counsel for the appellants and Shri Manoj Swarup, learned senior counsel for the respondents were heard.

2.The Title Suit No.9/89 of the plaintiff-appellant (Har Narayan Tewari) was decreed on 16.03.2000 by the court of first instance. In an appeal by the Cantonment Board, Ramgarh, the said decree was reversed by the First Appellate Court vide judgment and order dated 28.06.2006; basically on the ground that the suit was hit by principle of res judicata in view of the decision in the earlier Title Suit No.8/64 instituted by Maharani Lalita Rajya Lakshmi1 (wife of Raja Bahadur Kamakshya Narayan Singh2) wherein the plaintiff-appellant was defendant No.32 and the Cantonment Board, Ramgarh was the main contesting defendant. The Second Appeal preferred by the plaintiff-appellant to the High Court was dismissed on 01.04.2009 simply stating that it does not raise any substantial question of law.

3.Aggrieved by the judgment and order of the High Court dated 01.04.2009 dismissing the appeal; the plaintiff-appellant has preferred this appeal and has also assailed the judgment and order dated 28.06.2006 of the First Appellate Court alleging that his suit was not barred by res judicata and that he has validly acquired title and possession over the disputed land.

4.The plaintiff-appellant had filed the above referred Title Suit No.9/89 for declaration of his title over the properties mentioned in Schedule ‘A’ of the plaint with structures and buildings standing thereon and for confirmation of his possession over the same. In the alternative, a prayer was made that in case the plaintiff-appellant was not found in possession of the said property, the Cantonment Board, Ramgarh, or any person claiming through it, be evicted and he be put in possession with the further direction that they be restrained by a decree of permanent injunction from dispossessing the plaintiff-appellant from the said property in future.

5.According to Schedule ‘A’ of the plaint, the dispute is about two pieces of land: First, land measuring 0.12 acres out of 2.04 acres of Plot No.432; and secondly land measuring 0.18 acres out of 0.66 acres of Plot No.438 both situate in village Ramgarh, within the Cantonment Board, Ramgarh with boundaries as described in the Schedule. In short, the dispute in the suit is only regarding 0.12 acres of Plot No.432 and 0.18 acres of Plot No.438 i.e. total of 0.30 acres of the above two plots and the structures existing thereon.

6.The plaintiff-appellant is claiming title and possession over the suit land alleging that the Raja, the proprietor of the village, had settled the aforesaid land measuring 0.30 acres of the land comprising of Plot Nos.432 and 438 in his favour in the year 1942.

7.The case of the plaintiff-appellant was that village Ramgarh was the part of the Estate of Raja. It was under the management of the Court of Wards and was released in Raja’s favour in the year 1937. During the period of its management by the Court of Wards, its manager acquired 5.38 acres of additional land comprised in various plots including Plot Nos.432 and 438 in proceedings bearing Case No.1/1926-27 and came in possession thereof.

8.The Raja in the year 1942 made a permanent raiyati settlement of the suit land in favour of the plaintiff-appellant and also delivered its possession to him on payment of rent and salami of Rs.2,000/-. After vesting of the Estate of Ramgarh in the State of Bihar, the name of the plaintiff-appellant was mutated upon enhancement of rent @ Rs.2/- per decimal by an order dated 04.01.1963 of the Additional Collector, Ramgarh passed in Case No.115/62-63 (Exh.13). The plaintiff-appellant had constructed certain structures on the said land which have been let out to various persons, all of whom are defendants in the suit.

9.Upon the establishment of the Cantonment Board, Ramgarh, the ex-proprietor Raja handed over 2.55 acres of land (excluding the suit land) with the dispensary building etc. to the Cantonment Board temporarily. The Cantonment Board, as such, never came in possession of more than 2.55 acres of land that too which was other than the land settled and occupied by the plaintiff-appellant.

10.In 1964, Maharani, the wife of the Raja, instituted a Title Suit No.8/64, inter alia, for declaration of her title over 5.38 acres of the land of the village including 0.30 acres land of the plaintiff-appellant. The aforesaid claim was made on the basis of the maintenance grant allegedly made by the Raja in her favour.

11.The aforesaid suit was contested by the plaintiff-appellant by filing a written statement and claiming 0.30 acres land on the basis of raiyati rights granted by the Raja in the year 1942. The Cantonment Board, Ramgarh, claimed distinct rights in different portions of the land to the extent of 2.55 acres only, comprising of dispensary building and quarters of the doctors on the basis of possessory rights granted by the Raja.

12.In the aforesaid case, Maharani entered into a compromise with several defendants including the plaintiff-appellant (who was defendant No.32 in the said suit). According to the said compromise, Maharani admitted the possession of the plaintiff-appellant over the suit land to the extent of 0.30 acres in Plot Nos.432 and 438 and it was agreed that she will have no concern with the same and that the plaintiff-appellant will remain in exclusive possession of it. The Cantonment Board, Ramgarh did not object to it or challenge the compromise.

13.In the said suit, as many as nine issues were framed including the maintainability of the suit and about the right, title and possession of Maharani. The suit of the Maharani was dismissed vide judgment and order dated 31.03.1984, primarily on the ground that it was not maintainable as the State of Bihar being a necessary party, was not made a party and that Maharani had not entered into the witness box to prove her case. She as such, was not found to be the owner in possession of the land claimed by her. The court in dismissing the suit clearly mentioned that the parties who have entered into the compromise with Maharani will not have any right on the basis of the compromise deed as she herself has failed to prove her independent rights over the land claimed by her.

14.The second appeal filed by the plaintiff-appellant was dismissed by the High Court as it failed to raise any substantial question of law, which is mandatory for entertaining an appeal under Section 100 of the Code of Civil Procedure. Therefore, the first point which arises for consideration herein is - whether in the facts and circumstances of the case, any substantial question of law was involved in the second appeal.

15.The submission is that the plaintiff-appellant was non-suited by the First Appellate Court, on the ground that his suit was barred by res judicata. One of the essential conditions for the applicability of principle of res judicata as enshrined under Section 11 of the CPC is that the issue in the earlier suit and the subsequent suit ought to be directly and substantially the same. In the earlier Suit No. 8/64 instituted by Maharani, her claim was that she is the lawful owner of the entire 5.38 acre of land of Village Ramgarh, on the basis of the maintenance grant made in her favour by the Raja. In the said suit, the plaintiff-appellant was defendant no. 32 and the Cantonment Board, Ramgarh was defendant No. 1. The claim set up by Maharani was not accepted and ex-facie there was no adjudication regarding the rights of the co-defendants over the suit land viz 0.30 acres of land of plot Nos. 432 and 438 as claimed by the plaintiff-appellant in the present suit. The limited issue therein was whether the Maharani had acquired any right in the above entire property on the basis of maintenance in grant alleged to be executed by the Raja in her favour. There was no issue as to whether the suit land as claimed by the plaintiff-appellant belonged to him or was settled or not settled in his favour as claimed. Thus, in the facts and circumstances of the case, a clear substantial question of law as to whether the present suit as filed by the plaintiff-appellant was barred under Section 11 CPC on principle of res judicata inasmuch as there was no adjudication of the rights of the co-defendants in the previous suit with regard to the suit land and the issue therein was not directly or indirectly and substantially the same as in the present suit.

16.In view of the above, we are of the opinion that the High Court manifestly erred in dismissing the second appeal in limine on the ground that there was no substantial question of law involved therein.

17.As stated earlier, the substantial question of law arising in the second appeal was - Whether the suit as setup by the plaintiff-appellant was barred by principle of res judicata in view of the decision in the earlier Suit No. 8 of 64 wherein rights of the co-defendants in respect of the suit land were never adjudicated and non-acceptance of the claim of Maharani was not sufficient so as to decide the rights of the co-defendants.

18.There are no factual disputes which may require consideration of any evidence so as to answer the above substantial question of law. Therefore, we consider it appropriate to decide the above substantial question of law ourselves instead of leaving it for the High Court to adjudicate it.

19.It is an admitted position that the suit land i.e., portions of plot Nos. 432 and 438 were part of the Estate of Raja who had acquired about 5.38 acres of additional land of village Ramgarh. Maharani had claimed title over the entire aforesaid land of village Ramgarh but her claim was not accepted by the court in her Title Suit No.8/64. It means that she was unable to establish her right, title and interest over the said land on the basis of the alleged maintenance grant made in her favour by the Raja, but it does not mean that the suit land was not settled by the Raja in favour of the plaintiff-appellant or that the suit land had come to be settled with Cantonment Board, Ramgarh in any manner.

20.The lis in the previous suit i.e. Suit No.8/64 was regarding ownership and entitlement of Maharani over the entire 5.38 acres of land of village Ramgarh qua the Cantonment Board, Ramgarh; the plaintiff-appellant and other defendants in the said suit; whereas the controversy in the present suit is quite distinct with regard to only 0.30 acres of the suit land vis-à-vis the plaintiff-appellant and the Cantonment Board, Ramgarh.

21.The judgment and order of the previous suit which is final and conclusive, in no specific terms adjudicates upon the right, title and interest of either of the plaintiff-appellant or of the Cantonment Board, Ramgarh with regard to the suit land. In the said suit, there was no issue with regard to the right, title and possession of either the plaintiff-appellant or of the Cantonment Board, Ramgarh and no finding in this connection was returned by the court in dismissing the said suit. In simple words, the suit, as filed by Maharani claiming right, title and interest over 5.38 acres of land of village Ramgarh was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant over the suit land vis-à-vis the Cantonment Board, Ramgarh.

22.It may also be pertinent to point out that the Cantonment Board, Ramgarh throughout had claimed rights over 2.55 acres of land of village Ramgarh and not in respect of the entire 5.38 acres of land which was additionally acquired by the Raja. It is also not the case of the Cantonment Board, Ramgarh that the land which was temporarily settled in its favour by the Raja has been occupied by the plaintiff-appellant or that the plaintiff-appellant is claiming rights over the land which was settled in its favour. In other words, the land belonged to the Raja, part of which was settled in favour of the plaintiff-appellant to the extent of 0.30 acres of plot Nos. 432 and 438, whereas, another piece of land measuring 2.55 acres with certain structures but certainly excluding the suit land was settled in favour of Cantonment Board, Ramgarh. The right of the plaintiff-appellant to claim the suit land or the right of the Cantonment Board over the 2.55 acres of land settled in its favour never came to be adjudicated in previous Title Suit No. 8 of 64.

23.The general policy behind the principle of res judicata as enshrined under Section 11 CPC is to avoid parties to litigate on the same issue which has already been adjudicated upon and settled. This is in consonance with the public policy so as to bring to an end the conflict of interest on the same issue between the same parties. One of the basic essential ingredients for applying the principle of res judicata, as stated earlier also, is that the matter which is directly and substantially in issue in the previous litigation ought not to be permitted to be raised and adjudicated upon in the subsequent suit. It is a settled law that the principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants. In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict. Once all these conditions are satisfied, the principle of res judicata can be applied inter se the co-defendants.

24.In context with the above settled principle, though reference can be made to several decisions starting from that of Privy Council, but we consider it appropriate to refer to only one of the latest decisions on the point rendered by this Court in the case of Govindammal (Dead) by Legal Representatives and Ors. vs. Vaidiyanathan and Ors.3, wherein after considering all previous decisions regarding application of principle of res judicata between co-defendants, this Court culled out the above three conditions for applying the same.

25.In the light of the above legal position, we find that there was no conflict of interest between the co-defendants in the earlier Suit No. 8 of 64 inasmuch as the plaintiff-appellant was independently claiming rights over 0.30 acres of suit land whereas the Cantonment Board, Ramgarh was claiming rights over 2.55 acres of the land which formed part of the Estate of Raja without asserting that the land settled in its favour is the same as claimed by plaintiff-appellant or that there was any encroachment upon the land settled in its favour. Even assuming that there was some inter se conflicts between the co-defendants with regard to the suit land, the adjudication of the said conflict was not necessary for granting any relief to Maharani who was the plaintiff in the suit. Since she was claiming the entire Estate of 5.38 acres of land and her claim was defeated as she was unable to prove the grant of the said land in her favour with no specific finding by the court regarding the claims set up by the co-defendants, the inter se dispute of the co-defendants as raised in the present suit never came to be adjudicated. Thus, none of the conditions as laid down in Govindammal (supra) between co-defendants stood fulfilled for applying res judicata. In view of the aforesaid facts and circumstances, we are of the opinion that the principle of res judicata would not be attracted as the issue in the present suit was neither directly or indirectly in issue in the previous suit and there was no conflict of interest between the co-defendants in the said previous suit which if any never came to be adjudicated upon. Accordingly, the suit as filed by the plaintiff-appellant claiming title over the suit land against the Cantonment Board, Ramgarh is not barred under Section 11 CPC.

26.Having said so, we proceed to examine the respective claims of the parties on merits, treating the suit as maintainable and not barred by res judicata.

27.The plaintiff-appellant has set up his claim over the suit land as described in Schedule ‘A’ to the plaint. The said schedule mentions 0.12 acres of land of plot No.432 and 0.18 acres of land of plot No.438 totaling 0.30 acres of land situate in village Ramgarh. There is no dispute that during the said period the Estate of the Raja was under the management of Court of Wards, its manager had acquired 5.38 acres of additional land including the suit land and the same was added to the Estate of the Raja. In the year 1942, the Raja had settled the aforesaid land in favour of the plaintiff-appellant on 18.10.1942. It was followed by Hukumnama dated 07.04.1943 (Exh.9) which confirmed the above settlement.

28.The above settlement was confirmed by the Additional Collector, Hazaribagh on enhancement of rent @ Rs.2/- per decimal some time in the year 1963 and had started realizing rent from the plaintiff-appellant accordingly.

29.There is no dispute by any person claiming rights under the Raja that the aforesaid land was not so settled in favour of the plaintiff-appellant. The Maharani had claimed the entire 5.38 acres of land on the basis of the maintenance grant executed by Raja in her favour but her aforesaid claim was not accepted. The Cantonment Board, Ramgarh on the other hand had staked its claim only in respect of 2.55 acres of land forming part of 5.38 acres of the land but has nowhere claimed any right, title and interest over the suit land as claimed by the plaintiff-appellant. The Cantonment Board only on the basis of the judgment and order dated 16.03.2000 passed in Title Suit No.8/64 alleges that it has been recognized to be the owner of the entire 5.38 acres of land by adverse possession and, therefore, the plaintiff-appellant has no subsisting right in the suit land. The Cantonment Board further contends that the entire 5.38 acres of land was leased out by the Raja on 02.06.1931 for a period of 15 years to the Dublin University Mission and, therefore, no part of it could have been settled by him in favour of the plaintiff-appellant in the year 1942.

30.In respect to the second aspect as raised on behalf of the Cantonment Board, it is necessary to note that no material or evidence was adduced by the Cantonment Board to establish that the entire 5.38 acres of land was transferred by way of lease to Dublin University Mission; not even any oral evidence was adduced to prove such a transfer restricting the right of the Raja to settle the land in favour of the plaintiff-appellant. Even otherwise assuming there was such a lease, it would have expired in June 1946 on completion of 15 year period in which case the settlement of 1942 and the Hukumnama of 1943 being valid would revive and continue in favour of the plaintiff-appellant, more particularly with its confirmation by the Additional Collector and mutation in 1963.

31.In context with the first contention that in Title Suit No.8/64, possession of the Cantonment Board over the entire 5.38 acres was accepted by adverse possession, it would be pertinent to note that on perusal of the said judgment and order and decree would reveal that the court of first instance in the said suit has not given any finding with regard to the claim to the plaintiff-appellant (who was defendant No.32 in the said suit) nor with regard to the claim set up by the Cantonment Board. It is misconceived to contend that the said judgment and order accepts the title of the Cantonment Board by adverse possession on the entire 5.38 acres of land. In the said suit, the Cantonment Board had claimed rights only in respect of the part of the aforesaid 5.38 acres of land to the extent of 2.55 acres and, therefore, any observation of the trial court regarding adverse possession of the Cantonment Board would be deemed to be in respect of the claim as set up by the Cantonment Board and would not be construed to be in connection with the entire 5.38 acres of land so as to include the land of the plaintiff-appellant.

32.The written statement of the Cantonment Board itself as filed in Title Suit No.8/64 (Exh.12) makes it abundantly clear that upon the establishment of the Cantonment Board as a temporary measure in the year 1941, the Raja on being approached permitted it on 06.11.1941 to use 2.55 acres of land consisting of the dispensary building and other structures along with adjoining land to be used by the Cantonment Board for a period of six months which was extended up to 31.12.1943. There was no other settlement of any land in favour of the Cantonment Board and the Cantonment Board was in permissive possession of only 2.55 acres of land out of the 5.38 acres of the entire land of village Ramgarh. The land settled in favour of the plaintiff-appellant and that in favour of the Cantonment Board by the Raja were distinct and as such there was no apparent conflict between them.

33.The plaintiff-appellant by sufficient evidence has proved the settlement of the suit land by the Raja in his favour. It stands proved by the Amin report (Exh.8) dated 15.04.1942 and the Hukumnama (Exh.9) dated 07.04.1943 as well as the Rent receipt (Exh.6, 6/A and 7). The order of the Additional Collector, Hazaribagh dated 07.01.1963 (Exh.16) directing realization of rent from the plaintiff-appellant also confirms the above settlement and its subsequent approval by the State on enhancement of rent. All these documents have not been confronted by the other side. The fact that the name of the plaintiff-appellant was also mutated in the revenue records proves it beyond doubt, in the absence of any contrary evidence that he is in possession of the suit land. It may also be worth noting that in the earlier suit, the Cantonment Board has accepted that the plaintiff-appellant has been realizing rent of the shops existing over the suit land from the tenants.

34.In view of the aforesaid overwhelming unconfronted evidence, the First Appellate Court manifestly erred in reversing the finding of the court of first instance that the plaintiff-appellant is in settled possession of the suit land and he has successfully proved his ownership rights over the same.

35.Accordingly, the judgment and order of the High Court dated 01.04.2009 and that of the First Appellate Court dated 28.06.2006 are hereby set aside and the judgment and order dated 16.03.2000 passed by the trial court is restored decreeing the title suit of the plaintiff-appellant but with no order as to costs.

36.The appeal is allowed.

Result of the case: Appeal allowed.

1 Hereinafter referred to as “Maharani”

2 Hereinafter referred to as “Raja”

3 [2018] 11 SCR 1092 : (2019) 17 SCC 433

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