Karnataka High Court
K. Narasimhalu S/O Kallappa And Anr vs The State Through on 2 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1127
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3665/2012
Between:
1. K.Narasimhalu S/o Kallappa
Age 44 years, Occ. Agriculture,
R/o Raichur.
2. Tayappa S/o Adeppa
Age 37 years, Occ. Coolie,
R/o Rampur, Tq. & Dist. Raichur.
... Appellants
(By Sri Ganesh Naik, Advocate)
And:
The State through
West Police Station, Raichur,
District Raichur.
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure praying to allow the appeal
by setting aside the order of conviction and sentence passed
by the Principal Sessions Judge at Raichur in
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S.C.No.89/2010 dated 20.09.2012 and consequently acquit
the appellants of all the charges for the sake of justice.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
The above appeal is filed challenging the judgment of conviction and order on sentence dated 20.09.2012 passed in Sessions Case No.89/2010 by the Court of Principal Sessions Judge at Raichur.
2. The brief facts of the case are as follows ;-
On 20.04.2009 at about 6.45 a.m. the complainant who is a driver of KSRTC bus bearing Reg.No.KA-36-F-457 was coming from Dinni Village to Raichur and PW.18 is the conductor of the bus and the bus after passing Rampur Canal at that time the bus was stopped as the signal was given by six persons and those six persons threatened the bus driver and they were with spade and kerosene bottles and they immediately started damaging the glasses of the 3 windows of bus and the passengers of the bus have alighted and thereafter the accused have set fire to the bus by pouring kerosene on the seat and threatened the driver and conductor of the bus and the bus was burnt to ashes.
PW-10 is the complainant being driver of the bus had lodged a complaint as per Ex.P.19 before the police. Based on the first information statement Ex.P.19 the Investigating Officer has started investigation and filed charge sheet for the offence punishable under Section 307, 332, 504, 506, 435, 427 read with Section 34 of Indian Penal Code (hereinafter referred to 'IPC') and since some of the offences are is exclusively triable by the Sessions Court, therefore the case is committed to the Court of Sessions Court. Therefore, the Sessions Court has framed charges against the accused for the offences punishable under Sections 307, 504, 332 and 506 read with Sections 34 of IPC.
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The accused pleaded not guilty and claims to be tried. Therefore, the learned Sessions Judge has proceeded with the trial. During the midst of the trial accused No.2 died. Therefore, the case as against him stands abated.
The prosecution in order to prove the guilt against the accused has examined PWs.1 to 20 and got marked the documentary evidence Ex.P.1 to Ex.P.31 and got marked M.O.Nos.1 to 3. For the defence Ex.D1 was marked.
After closure of the prosecution evidence, the accused were examined under Section 313 of Criminal Procedure Code. Accused have not lead any evidence and it is total denial of the case by the accused.
After appreciating the evidence on record, the learned Sessions Judge has convicted the accused Nos.1 and 3 for the offences punishable under Sections 506 and 332 of IPC and sentenced them to 5 undergo rigorous imprisonment for two years. Further convicted for the offence punishable under Section 307 of IPC and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.50,000/- each and in default of payment of fine accused shall further undergo rigorous imprisonment for two years.
3. Calling in question the judgment of conviction and order on sentence passed by learned Sessions Judge, accused Nos.1 and 3 have preferred this appeal on the grounds that -
• The prosecution has failed to prove the guilt beyond reasonable doubt and there are no convincible evidences on record to convict the accused and the learned Session's Judge has wrongly appreciated the evidence on record.
• Further the ground raised is that initially the case was registered against the unknown persons but later on these accused persons were named and thus, the accused persons were falsely implicated 6 into the case and thus, real culprits have not been implicated by the Investigating Officer. • Further it is the ground that all the witnesses have turned hostile and only the available witnesses are PW.10 - driver, PW.18 - conductor, PW.19 - Investigating Officer and PW.20 - Tahasildar, but evidence of these witnesses do not inspire confidence of the court so as to say that the accused Nos.1 to 3 have involved in to the alleged crime.
• Further it is raised ground that even though PWs.10 and 18 are not found to be believable so as to point out guilt towards the accused and PWs.10 and 18 are not believable and if these evidences are kept aside then virtually the prosecution does not have any case against accused.
• Further raised a ground that even though the prosecution has claimed that test identification parade was conducted but in reality it was suspicious because PWs.10 and 18 have not stated so in their evidence in examination in chief. Therefore, by raising of all these grounds the accused have preferred the present appeal and submitted that the judgment of conviction and order on sentence be set-aside for want of legal evidence.
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4. I would like to place on record the submissions made by the learned counsel for the appellants/accused and the learned High Court Government Pleader in this regard as and when discussion is made of the evidence recorded in the case. CURSORY LOOK OF EVIDENCE IN EXAMINATION-IN- CHIEF :
5. Before adverting to the appreciation of the evidence on record muchless the material witnesses it is just and necessary to have cursory look on the evidence adduced by the witnesses whatever in the form of examination-in-chief.
6. PWs.1 to 9 and PWs.13 to 15 are the eye witnesses as per the prosecution case but they have turned hostile and even if treating them as hostile witnesses by the public prosecutor but no worth is elicited from their mouth during the course of cross- 8 examination. Therefore, the evidence of PWs.1 to 9 and PWs.13 to 15 are not helpful to the prosecution.
7. The other two witnesses who were panch witnesses i.e., PWs.11 and 12 have also turned hostile and their evidence is also not helpful to the prosecution.
8. PW.10 is the bus driver has stated that on 20.04.2009 at 6.00 a.m. he left Dinni Village and proceeding towards Raichur and he was driving the bus, PW.18 Sharanappa was the conductor and there were 50 passengers in the bus. When the bus reached Rampur canal at 6.45 a.m. six persons have given signal of stopping the bus and accordingly presumed that they are the passengers and stopped the bus and these six persons have boarded the bus and suddenly have damaged the bus by breaking the glasses and set fire to the seats by pouring kerosene and also threatened them and other passengers. PW.10 had stated that among the six persons there were three 9 passengers and three accused and he has stated the names of accused and accordingly has lodged complaint as per Ex.P.19 and also participated during panchanama as per Ex.P.20 and during panchanama the police have seized M.O.Nos.1 to 3.
9. PW.18 is the Conductor who had also stated the evidence in the same line as PW.10 Driver but had stated extra version that three persons were holding spade and a kerosene bottles and damaged the bus and poured kerosene and set fire and when he has questioned the said six persons they have abused in filthy language and also criminally intimidated them.
10. PW.20 is the Tahasildar who had conducted test identification parade in the District Prison, Raichur on 05.05.2009 at afternoon 3.30 p.m.. He has deposed that he conducted test identification parade. PWs.10 and 18 have identified accused No.1. PW.20 had narrated the process of test identification parade saying 10 that accused No.1 was standing at a different position among the other nine under trial prisoners and three rounds were carried for each witness and on each round both PWs.10 and 18 have identified the accused No.1 and accordingly he has prepared a memorandum of test identification parade as per Ex.P.31.
11. PW.19 is the Investigating Officer who had conducted investigation after lodging the first information statement and narrated the sequence of events during the course of investigation. He stated that he had requested for conducting test identification parade accordingly PW.20 had conducted test identification parade. Further stated that on the date of alleged incident PWs.10 and 18 who were the driver and conductor of the bus were on duty and accordingly had obtained certificate from the Depot Manager saying that PWs.10 and 18 were on duty on the date of incident. 11
12. Except these witnesses the prosecution does not have any other evidence to prove the guilt of the accused.
13. The learned Sessions Judge by relying on the evidence of PW.10 - driver and PW.18 - conductor by assigning the reasons that these two witnesses are not interested witnesses and they were on duty as on the date of incident and they have identified the accused and accordingly by relying on them convicted the accused for the offence punishable and sentenced them as stated above. Also the learned Sessions Judge after relying the memorandum of test identification parade and came to a conclusion that during the course of test identification parade these witnesses have identified the accused and accordingly rendered the judgment of conviction and passed order on sentence.
14. The learned High Court Government Pleader supporting the judgment of conviction and order on 12 sentence and vehemently argued that there are no good ground available for the accused/appellants to cause interference in the judgment of conviction and order on sentence and the learned Sessions Judge has rightly appreciated the evidence on record and thus, the appeal is devoid of merits and prayed for dismissal of the appeal.
15. The learned High Court Government Pleader by taking the Court to the evidence of PW.10 - driver, PW.18 - conductor, PW.20 - Tahasildar and PW.19 PSI who had conducted investigation and also the evidence of PW.16 - Doctor who had examined PW.10 - Driver as he has sustained injuries at the time of incident therefore, argued that the evidence of these witnesses are sufficient to hold that the accused are guilty. Therefore, there are no warrants to cause intervention in the judgment of the trial Court. Therefore, prayed to dismiss the appeal.
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16. Having heard on both sides and analyzing evidence on record, the points that would arise for consideration are as follows ;-
i. Whether the prosecution proves the guilt of the accused beyond reasonable doubt for the offences alleged against the accused ? ii. Whether the judgment of conviction and order on sentence dated 20.09.2012 passed by the Court of Principal Sessions Judge, Raichur passed in Sessions Case No.89/2010 requires interference by this court ?
ANALYSES OF EVIDENCE :
17. Upon considering the evidence of PW.10 along with the evidence of PW.20 - Tahasildar who had conducted test identification parade, PW.10 had not stated that PW.19 has made arrangements for conducting test identification parade and he had been to District Prison, Raichur and had identified accused No.1 during the course of test identification parade. Also upon considering the evidence of PW.18 who is conductor had not stated in his examination in chief 14 that test identification parade was conducted and he had identified accused in the District Prison, Raichur saying involvement of accused no.1 in the alleged incident. Therefore, the learned counsel for appellants argued that the entire process of conducting of test identification parade is suspicious one as there was no signature taken of the PWs.10 and 18 on the memorandum of test identification parade showing the presence of PWs.10 and 18.
18. It is borne out from the evidence on record during the course of test identification parade in District Prison, Raichur it is alone PW.20 - Tahasildar had put the signature on the memorandum of test identification parade [Ex.P.31]. Therefore, the counsel for appellants heavily attacked on these evidences and submitted that the learned Sessions Judge has not appreciated the evidence on record correctly. After analyzing the evidence of PW.10 in the cross-examination PW.10 had stated that six persons have given signal for stopping 15 the bus and among them three persons were the accused and three persons were the passengers. During the course of cross-examination PW.10 had stated that he did not know the said six persons previously before the date of incident but he has stated the names of three accused. But PWs.10 and 18 had not whispered anything regarding test identification parade conducted by PW.20 upon the arrangement made by the Investigating Officer. Further PW.10 in the course of cross-examination admitted that he came to know the names of three accused in the police station when the police have stated their names and further PW.10 stated that he had gone to the police station for 2-3 times during the first week from the date of incident. Therefore, it is proved that PW.10 did not know the name of the accused but he had stated the name of the accused in the examination-in-chief but it is elicited during the course of cross-examination that at the say 16 on the police PW.10 had named the accused and also had seen the accused in the police station. REGARDING TEST IDENTIFICATION PARADE :
19. I place reliance on the judgment of the Hon'ble Supreme Court in the case of Sheikh Hasib alias Tabarak v. The State of Bhiar reported in (1972) 4 Supreme Court Cases 773. Their lordship who were placed to observe as follows ;-
"5. As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh - AIR 1960 SC 1340, the substantive evidence is the statement of a witness in court and the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identify of the accused who is stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the dacoits when PW 10 saw them on January 28, 1963 then the T.I.parade as against him cannot be of any assistance to the prosecution."
20. Regarding test identification parade as per the provisions of Section 9 of the Indian Evidence Act, 17 the Hon'ble Supreme Court laid down the principles of law in the case of Mahabir v. State of Delhi reported in (2008) 16 Supreme Court Cases 481, which are as follows ;-
"12. "9. As was observed by this Court in Matru v. State of U.P. (1971) 2 SCC 75 - identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain - (1973) 2 SCC 406). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the 18 prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution." - As observed in Abdul Whaeed Khan v. State of A.P (2002) 7 SCC 175.
13. "7. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of 19 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 prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on 20 corroboration. (See Kanta Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102)).
8. In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3 SCC 518), the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of 1956 decided on January 15, 1957), wherein it was observed: (Jadunath Case, SCC pp.522-23, para
11)-21
"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such. These circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person who is well- known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances."
The Court concluded: (SCC pp.523-24, para 15) '15. It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of 1956 decided on January 15, 1957),, that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case.' 22
9. In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480), though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in Court corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held: (SCC p.481, para 4) '4. In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. (AIR 1971 SC 363) absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the 23 course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant.'
10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.
11. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld the conviction of the appellant even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. This Court noticed the observations of the trial Judge who had recorded his remarks about the demeanor that the witness perhaps was afraid of the accused as he was trembling at the stare of Ram Nath - accused. This Court also relied upon the evidence of the Magistrate, PW-7 who had conducted the test identification parade in which the witness had identified the appellant. This Court found, that in 24 the circumstances if the Courts below had convicted the appellant, there was no reason to interfere.
12. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80), this Court held that it is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance, both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. Thereafter this Court observed: (SCC p.126, para 78) '78. ...But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number 25 of times at different point of time and places which fact may do away with the necessity of a TI parade.'
13. In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31), this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.
14. In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000 (1) SCC 358) after considering the earlier decisions this Court observed:-
'20. It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of V.C. Shukla v. State (AIR 1980 SC 1382) wherein also Fazal Ali, J., speaking for a three-Judge Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the 26 accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eye-
witnesses. It, therefore, cannot be held, as tried to be submitted by learned Counsel for the appellants, that in the absence of a test identification parade, the evidence of an eye- witness identifying the accused would become inadmissible or totally useless; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned Counsel for the appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha v. State of Maharashtra (AIR 2000 SC 160) and State of H.P. v. Lekh Raj (AIR 1999 SC 3916), had not considered the aforesaid three-Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three- Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned Counsel for the appellants that the evidence of, these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eye-witnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well within imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in 27 roping in innocent persons by shielding the real accused who had assaulted them.' "
These aspects were highlighted in Malkhansingh and Others v. State of M.P., ((2003) 5 SCC 746) at SCC p.751-55, para 7-
14."
21. As a general rule the evidence revealed in the test identification parade is not a substantive piece of evidence but it is corroborative evidence. The evidence of the witnesses stated in the court is substantive evidence. In this regard I place a reliance on the judgment of the Apex Court in the case of Budhsen and another v. State of Uttar Pradesh reported in 1970 (2) Supreme Court Case 128, which reads thus;-
"7. Now, facts which establish the identity of an accused person are relevant under S. 9 of the Indian Evidence Act. As a general rule, the substantive evidence of a witness is a statement made in court. 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 evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in 28 question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be 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 proceeding. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other cor- roboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify per'sons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by s. 162, Cr. P.C. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations :29
(i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done an the identification Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence.
The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seems to be of basic importance in the evaluation of identification. The persons required to identify an accused should have bad no, opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court. Shri Pratap Singh, Magistrate, who conducted the identification, has appeared at the trial as P.W.
20. The identification memo in respect of Naubat, appellant, is Ex. Ka 20 dated October 21, 1967 and in respect of Budhsen is Ex. Ka 21, dated October 28, 1967."
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22. Therefore, the principles laid down by the Apex Court as discussed above and applying the principles laid down therein in the present case, PWs.10 and 18 being the driver and conductor of the bus have not stated in the court that test identification parade was conducted by PW.20 - Tahasildar and they have identified the accused No.1. Further upon considering the evidence of PWs.10 and 18 they have not stated while deposing that they have identified accused who were present in the court, they have only stated that six persons were boarded the bus and committed the offence alleged. Therefore, whatever the prosecution relied on the evidence of test identification parade regarding identification of accused No.1 is concerned it does not have any corroborative value.
23. Even the Tahasildar - PW.20 in the present case has not taken precautions and not followed the procedures while conducting test identification parade in the District Prison, Raichur. There are various 31 procedure and precautions to be taken as per the principles of law laid down by the Hon'ble Apex Court which are culled out and enumerated as follows ;-
"Procedure and precautions. - The value of T.I. parade depends on the effectiveness of precautions taken to prevent the opportunity of seeing the suspects and to prevent the investigating authority to adopt unfair means -
(a) T.I. parade should be preferably held by a Magistrate;
(b) It should be held in the jail compound;
(c) Suspects should be mixed up with as many undertrial prisoners/outsiders as possible;
(d) U.T .prisoners/outsiders and suspects should be similarly dressed and of similar social status, age and religion;
(e) They should resemble in features;
(f) After each identification by the identifying witness the order of suspects and U.T. prisoners/outsiders in the row should be changed;
(g) Other identifying witnesses should be kept in a place beyond the sight and hearing of the witness identifying;
(h) After identification the witness should be kept in a place beyond the sight and hearing of other identifying witnesses;32
(i) No police personnel should remain present in the identification ground;
(j) The Statement of witnesses relating to the suspect made in course of identification should be recorded by the Magistrate; and
(k) The Magistrate will also record of the objection of the suspect.
But upon considering the evidence on record put-forth by the prosecution, the learned Tahasildar has not followed the procedure and has not taken precautions as enumerated above. Therefore, the argument canvassed by the learned counsel for the appellants/accused that the very fact of conducting test identification parade itself a suspicious one. I find force in the submission made by the learned counsel for appellants/accused while perusing the evidence on record.
24. Also upon considering the evidence of PW.18
-conductor in the course of cross-examination had stated that before the incident he had seen five persons and had acquaintance with accused and the route being 33 conductor working in the bus and therefore he knew the names of 4-5 accused. Therefore, it is revealed that in the course of cross-examination PW.18 - conductor knew the names of the accused even before the incident and if it is the evidence of PW.18 that these persons have committed the alleged offence but a reasonable doubt arises in the mind of the Court why the PW.18 has not stated names of these accused before the police at the very initial point of time. The prosecution has not put-forth any material before the Court what prevented the PW.18 to state the names of accused before the police by saying so in the first information statement (FIS) Ex.P.19. If PW.18 knew the names of accused and if these accused have committed the alleged offence then PW.18 very well could have stated before the police and the same would have been reflected in the FIS but in the FIS the names of those accused have not been found. Therefore, a reasonable doubt would arise 34 regarding involvement of accused into the present incident.
25. PW.19 is the Investigating Officer who had recorded the statement of PW.18 for the first time on 21.04.2009 but PW.18 has also not stated the names of accused. Therefore, after analyzing the entire evidence on record a reasonable doubt arises in the mind of the Court whether really these accused have involved in the incident and committed the alleged offences. PW.18 in his evidence in the cross-examination had admitted that he knew the accused with their names prior to the incident and when the alleged incident was taken place by these accused as per the evidence of PWs.10 and 18 as stated by the prosecution then a serious doubt arise in the mind of the Court why PW.18 did not say the names of accused before the Investigating Officer while giving statement u/s 161 of Criminal Procedure Code. Also in the first information statement Ex.P.19 the names of these accused were not found but PW.18 35 already knew these accused with their names. Therefore, the evidence of these witnesses are found to be suspicious one regarding involvement of these accused into the alleged crime.
26. The standard of proof statutorily required as per Section 3 is one of 'preponderance of probability'. Section 3 of the Evidence Act does not speak of anything about 'proof beyond reasonable doubt' or even the 'preponderance of probability' but for proving cases in a criminal nature higher degree of proof is required that is the 'proof beyond reasonable doubt'.
27. The word 'proved' means that a fact is said to be proved when after considering the matters before it, the court either believes it to exit, or considers its evidence so probable that a prudent man ought under circumstances of the case to act upon such supposition that would exists. No conclusive proof is required to state that a fact is proved. The process involved is one of 36 weighing the probabilities for proving the involvement of accused. In criminal cases higher degree of proof is required.
28. Let me consider here in the present case what are the 'facts' and 'facts in issue' is involved, as per Section 3 of the Indian Evidence Act, 1872 applying the interpretation clause on the case on hand. Here it is relevant to extract, 'fact', 'facts in issue', 'proved', 'disproved' and 'not proved'.
"Fact" - "Fact" means and includes -
(1) anything, state of things or relation of things, capable of being perceived by the senses' (2) any mental condition of which any person is conscious.
"Facts in issue" - The expression "facts in issue" means and includes -
any fact from which, either by itself or in connection with other facts, the existence, non- existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation. - Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the 37 fact to be asserted or denied in the answer to such issue is a fact in issue.
"Proved" - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved" - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. "Not proved" - A fact is said not to be proved when it is neither proved nor disproved.
29. In the present case the fact depicted by the prosecution is that accused have with common object boarded the bus and damaged the bus by pouring kerosene and setting fire. The involvement of the accused in the present case is facts in issue. The prosecution has to prove the fact and facts in issue by reliable and cogent evidence that the accused have committed the offence alleged.
38
30. Upon considering the evidence discussed above the prosecution has failed to produce reliable and cogent evidence to prove the facts in issue that the involvement of the accused in the present case. PWs.10 and 18 have stated that they have seen the incident by mentioning the names of accused but at very initial point of time PW.18 - conductor knew the accused and had acquaintance with the accused for prior to 4-5 months from the date of incident but did not whisper anything at very initial point of time but later the case is developed to the extent that the accused have involved into the crime. This development in the present case is amounting to embellishment. Therefore, the facts above stated is disproved after considering all the material on record.
31. Therefore a reasonable doubt arises in the present case regarding involvement of the accused into the alleged crime. This reasonable doubt is not a mere trivial or a simple one but with all probabilities it can be 39 safely said that there is high doubt arise regarding the implication of the accused and this high doubt is found to be reasonable one as to safely be taken in two views either there is existence of involvement of the accused or non existence of involvement of the accused. When a reasonable doubt arises, always the said benefit can be extended in favour of the accused.
32. In Glanville Williams in his book 'Criminal Law' Second Edition has opined that the phrase 'reasonable doubt' is virtually indefinable. This concept of 'reasonable doubt' is explained by Justice Cookbur, as follows ;-
'It is business of the prosecution to bring home the guilt of the accused to the satisfaction of the minds of the jury; but the doubt to the benefit of which the accused is entitled to must be such as rational thinking, sensible man fairly and reasonably entertain, not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticism. There must be doubt which a man may honestly and conscientiously entertain.' 40 In the case of State of I.P. v. Krishna Gopal and another reported in AIR 1988 SC p.2154, Hon'ble Supreme Court has succinctly explained the concept 'Reasonable Doubt' as follows ;
'......There is an unmistakable subjective element in the evaluation of the degree of probability and quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and ultimately on the trained institutions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.'
33. While appreciating the evidence of a witness, the Court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant 41 details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. In this regard I place reliance on the judgment of Hon'ble Supreme Court reported in (2004) 13 SCC p.308 in the case of State of Madhya Pradesh v. Dharkole @ Govind Singh and others. Also I place reliance on the judgment of the Hon'ble Apex Court reported in AIR 1973 SC p.2622 in the case of Shivaji Sahabrao Bobade and others v. State of Maharashtra. Therefore upon considering the evidence of PW.10 - driver and PW.18 - conductor, when their evidence is analyzed with the evidence of PW.20 - Tahasildar and PW.19 - PSI who has conducted the investigation there is a doubt arises that whether PW.19 had really made arrangement for conducting test identification parade.
34. Ex.P31 memorandum of test identification parade which is stated to be conducted by PW.20 Tahasildar do not contain the signature of PWs.10 and 42 18 showing the presence of PWs.10 and 18 in the District Prison, Raichur and conducted test of identification parade. This assumed importance for the reasons that PWs.10 and 18 did not depose during the course of their evidence that they had been to District Prison, Raichur and participated in the test identification parade and identified accused No.1. If PWs.10 and 18 were present before District Prison, Raichur during the course of test identification parade then which is a material evidence which could have been stated in their evidence but those are not found in the evidence before the Court. Therefore, this creates reasonable doubt and not a trivial one and this reasonable doubt emerged in the present appeal paves a way to give benefit of doubt in favour of the appellants.
35. Further PW.10 had stated in his evidence that the police have stated the names of accused and he had been to the police station for 2-3 times and the 43 police have shown the accused and under these circumstances even if it is proved the test identification parade is conducted it looses its significance. Where the witnesses knew the persons, the question of holding of any test identification parade in respect of them for their identification, did not arise. [Ravindra vs. State (1998) 6 SC 609].
36. Further more PW.18 has stated in his evidence that before the incident he knew the accused with their names and even it shows when PW.18 knew very well about the accused and conducted test identification parade making presence in the District Prison, Raichur and making participate of PW.18 during the test identification parade looses its significance. In this regard, the observation made by the Sessions Court is not correct relying on the test identification parade.
37. Further the Sessions Court has relied on the evidence of PWs.10 and 18 by categorizing them as 44 uninterested witnesses and there is no enmity between PWs.10 and 18 and the accused, therefore the evidence of PWs.10 and 18 are found to be believable is perverse finding. When upon considering and analyzing the evidence of PWs.10 and 18 as discussed above, the evidence of PWs.10 and 18 are not found to be believable, then even if there is no enmity between accused and PWs.10 and 18 that does not give any credentials while appreciating the evidence of PWs.10 and 18. Therefore, in this regard the learned Sessions Judge has wrongly appreciated the evidence on record and by only relying on evidence of PWs.10 and 18 had convicted the accused. While re-appreciating the evidence on record in this regard I am of the opinion that PWs.10 and 18 are not found to be believable and trustworthy. Therefore, when two views are possible one is in favour of the accused and another one is in favour of prosecution, always the view in favour of accused be considered and benefit of doubt must be extended on 45 that view in favour of accused. But in the present case while analyzing the evidence on record in its entirety it is not only two views are possible but possible to only one view which is heavily tilting towards accused raising reasonable doubt of involvement of accused in the present incident. Therefore, the judgment of conviction and order on sentence suffers illegality and perversity and thus, the appeal deserves to be allowed by setting aside the judgment of conviction and order on sentence. Accordingly, I answer Point No.1 in the negative and Point No.2 in the affirmative. Hence, I, proceed to pass the following :
ORDER Appeal is hereby allowed.
The judgment of conviction and order on sentence dated 20.09.2012 passed in Sessions Case No.89/2010 by the Court of Principal Sessions Judge at Raichur is hereby set-aside.46
The appellants/accused are acquitted from the charges levelled against them.
The bail bonds and surety bonds of appellants/accused stands cancelled.
Sd/-
JUDGE sn