Karnataka High Court
R Manohar S/O Ramaiah vs State Of Karnataka By Rmc Yard Police on 7 June, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7th DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE H.BILLAPPA
CRL.A.No.245/2009
c/w CRL.A. Nos.290/2009,
412/2009, 418/2009 & 143/2011
CRL.A.No.245/2009
BETWEEN:
R.Manohar,
S/o.Ramaiah,
Aged about 43 years,
R/at.No.19, Venkatappa Street,
Near Lalbagh,
Chikkamavalli,
Bangalore.
...Appellant
(By Sri.G.G.Shastri, Adv.,)
AND:
State of Karnataka,
By RMC Yard Police,
Bangalore City.
...Respondent
(By Sri.N.S.Sampangiramaiah, HCGP)
*******
2
This appeal is filed under section 374(2) Cr.P.C. by the
advocate for the appellant praying that this Hon'ble Court
may be pleased to set aside the judgment and order of
conviction and sentence dated 19.03.2009 passed by the
P.O., FTC-IV, Bangalore City in S.C.No.723/2005 convicting
the appellant/accused No.3 for the offence P/U/S.302/120-
B R/W. Sec.34 of IPC and the appellant/accused No.3 is
sentenced to undergo life imprisonment shall pay a fine of
Rs.5,000/- in case of failure to pay the fine amount, further
he shall undergo S.I. for six months, for the offence
P/U/S.302/120B R/W 34 of IPC.
CRL.A.No.290/2009
BETWEEN:
Vijay Kumar.S.Gangu,
S/o.Late Shivaraya Gangu,
Aged about 36 years,
R/at.No.80 to 85, 3rd Floor,
SBB Nilaya, 3rd Main Road,
6th Cross, SRS Peenya,
Bangalore. ...Appellant
(By Sri.C.H.Jadav, Adv.,)
AND:
State of Karnataka,
By RMC Yard Police Station,
Bangalore.
Represented by the State
Public Prosecutor,
High Court Building,
Bangalore - 560 001.
...Respondent
(By Sri.N.S.Sampangiramaiah, HCGP)
*****
3
This Crl.A. is filed under section 374(2) Cr.P.C. by the
advocate for the appellant/accused No.2 against the
judgment and order of conviction and sentence dated
19.03.2009 in S.C.No.723/2005 passed by the City Fast
Track Court(Sessions) Judge, Bangalore City (FTC-VI),
convicting him for offence P/U/S.302/120-B R/W. Sec.34 of
IPC and the appellant/accused No.3 is sentenced to undergo
life imprisonment shall pay a fine of Rs.5,000/- for the
offence U/S.302, 120(B) R/W 34 of IPC, in case of failure to
pay the fine amount, further he shall undergo simple
imprisonment for six months.
Crl.A.No.412/2009
BETWEEN:
Sumanth,
S/o.Arun Kumar,
Aged about 27 years,
R/at.No.52, Municipal Quarters,
Hosamane Area,
Shivashankar Garage Down,
Shimoga Town. ...Appellant
(By Sri.S.K.Venkatareddy, Adv.,)
AND:
State of Karnataka,
By RMC Yard Police,
Bangalore City. ...Respondent
(By Sri. N.S.Sampangiramaiah, HCGP)
*****
This Crl.A. is filed under section 374(2) Cr.P.C. by the
advocate for the appellant praying that this Hon'ble Court
may be pleased to set aside the impugned judgment and
order of sentence dated 19.03.2009 passed by the Presiding
Officer, City Fast Track Court (Sessions) Judge, Bangalore
City (FTC-VI), in S.C.No.723/2005 convicting the
4
appellant/accused for offence P/U/S.302 and 506 R/W.
Sec.34 of IPC and the appellant/accused sentenced to
undergo life imprisonment shall pay a fine of Rs.5,000/- for
the offence U/S.302 R/W 34 of IPC, in case of failure to pay
the fine amount, further the appellant shall undergo simple
imprisonment for six months etc.,
Crl.A.No.418/2009
BETWEEN:
Sujith Kumar @ Suji,
S/o.Keshava Murthy,
Aged about 34 years,
Occ: Business,
R/o.Vinobhanagar,
Near Anand Marbles,
Shimoga District,
Shimoga Town. ...Appellant
(By Sri.C.H.Jadav, Adv.,)
AND:
State of Karnataka,
By RMC Yard Police,
Bangalore City. ...Respondent
(By Sri. N.S.Sampangiramaiah, HCGP)
*****
This Crl.A. is filed under section 374(2) Cr.P.C. by the
advocate for the appellant praying that this Hon'ble Court
may be pleased to set aside the impugned judgment and
order of sentence dated 19.03.2009 passed by the City Fast
Track Court (Sessions) Judge, Bangalore City (FTC-VI), in
S.C.No.723/2005 convicting the appellant/accused for
offence P/U/S.302 and 506 R/W. Sec.34 of IPC and the
appellant/accused sentenced to undergo life imprisonment
shall pay a fine of Rs.5,000/- for the offence U/S.302 R/W
34 of IPC, in case of failure to pay the fine amount, further
5
the appellant shall undergo simple imprisonment for six
months etc.,
Crl.A.No.143/2011
BETWEEN:
Sri.Murthy @ Yeshwanthpur Murthy
@ M.Narasimhamurthy,
S/o.Late Elenarasappa,
Aged about 27 years,
No.52, 6th Cross, 8th Main Road,
K.N.Extension,
Yeshwanthpur,
Bangalore. ...Appellant
(By Sri.G.M.Ananda, Adv.,)
AND:
State of Karnataka,
By RMC Yard Police,
Bangalore City. ...Respondent
(By Sri. N.S.Sampangiramaiah, HCGP)
*****
This Crl.A. is filed under section 374(2) Cr.P.C. by the
advocate for the appellant praying that this Hon'ble Court
may be pleased to set aside the impugned judgment and
order of sentence dated 19.03.2009 passed by the Presiding
Officer, City Fast Track Court (Sessions) Judge, Bangalore
City (FTC-VI), in S.C.No.723/2005 convicting the
appellant/accused for offence P/U/S.302 and 506 R/W.
Sec.34 of IPC and the appellant/accused sentenced to
undergo life imprisonment shall pay a fine of Rs.5,000/- for
the offence U/S.302 R/W 34 of IPC, in case of failure to pay
the fine amount, further the appellant shall undergo simple
imprisonment for six months etc.,
These appeals coming on for Hearing this day,
K.SREEDHAR RAO. J., delivered the following:
6
JUDGMENT
The material facts of the prosecution case discloses that one Manjunath is the deceased. There was monetary dispute between one Mahantesh and PW-7 with regard to commercial transaction between them. A-3 had arbitrated and had given his opinion in favour of Mahantesh. In that regard A-3 was demanding payment of commission of Rs.2 lakhs for settling the dispute. The deceased had arbitrated and advised PW-7 to pay only Rs.50,000/- which is less than what is demanded by A-3. Therefore, A-3 had grouse against the deceased for getting him a lower remuneration. This incident had taken place about seven months prior to the murder.
2. A-2 had borrowed Rs.3,80,000/- from the deceased. In that regard the deceased was insisting repayment and abusing A-2 using foul and filthy words for non payment. In that regard A-2 had grievance against the deceased. A-1 and A-2 are friends. A-2, some time before the incident, had expressed with A-1 that he would finish the 7 deceased one day. This conversation was held in Sarva Shakthi Transport Office of the deceased. PW-8, who is the employee of the deceased, had overheard this conversation. It is the case of the prosecution that A-1 and A-3, who had common grievance against the deceased, engaged A8 to commit the murder who in turn engaged A-4 to A-7 to the murder.
3. On 25.3.05, around 7.30 p.m., the deceased had gone to APMC by his maruthi van. The wheel was punctured and the vehicle was stranded near ING Vysya Bank which is close to the shop of PW-7. The deceased had gone to APMC Yard by his Marauti Van. The wheel was punctured and the vehicle was parked near ING Vysya Bank which is close to the shop of PW7. The deceased comes to the shop of PW7 who happens to be his good friend, tells PW1 who is driver of PW7 to go and attend his vehicle. PW1 goes and find that the net bolts of the wheel are very stiff, therefore tells that mechanic is required. PW1 goes and bring the mechanic - PW16 and they were attending to change the stepney, it was around 8.15 p.m. The deceased to know the progress of 8 repair, goes towards his vehicle. PW16 was removing the wheel to replace the stepney. PW1 was observing the mechanic and the deceased resting his hands on the vehicle was also observing. At that time, 4 persons came armed with deadly weapons and they assaulted the deceased indiscriminately. PW1 got frightened, he moves away to a little distance of 20 ft.. The accused after assault fled away.
4. On hearing the cries, PW7 and his employee PW6 go to the scene and witnessed the assault. The deceased was taken to Chaya Nursing Home, where he was pronounced dead. PW1 immediately within a short time gives complaint - Ex.P.1 before the police to the effect that some 4 unknown persons caused the murder and that PW1 has clearly seen one of the assailants and gives description in the complaint. A case is registered, inquest panchanama is held. The P.M. report discloses that the death is homicidal.
5. A1 to A3 are arrested on 3.1.05 and produced before the Magistrate and they were sent to J.C. 16.04.2005. On 06.04.2005, A4, A5 and A7 are arrested. They are 9 produced before the Magistrate on 07.04.2005 and they were remanded to J.C. till 18.04.2005. On 16.04.2005, when A4, A5 and A7 were in J.C., the I.O. submits a written request before the JMFC to direct for test identification of A4, A5 and A7 by the witnesses. The JMFC has passed an order to that effect directing the Taluka Executive Magistrate to hold T.I. parade on 18.04.2005. The T.I. parade was held on 16.05.2005. In the T.I. parade, PW1, PW6 and PW7 have identified A4, A5 and A7 as assailants.
6. At the voluntary instance of the A5 and A7, a dagger - M.O.8 and sword marked at M.O.4 are recovered which were concealed in the parthenium bush at 9th gate APMC yard and later on at the voluntary instance of A4, M.O.9 dagger is recovered from KIADB area, Peenya, TVS Cross, which was concealed in heap of bricks and concrete pieces The blood stained weapons and bloodstained clothing of the deceased was sent to FSL. The FSL report and Serologist's report discloses that the blood group of the stains on the clothing of the deceased and on the weapons 10 are shown to be 'A' group blood. The FSL report and Serologist's report are marked at Ex.P.25 and P26.
7. The prosecution case discloses that 20 days prior to the murder, A1 visited the transport office of the deceased. A2 was present, the deceased was not present. PW8 was working as a manager in the transport office. A2 told A1 that he has been threatened that his wife would be widowed and he wants the person threatened to be killed and his wife should be widowed. A2 asked A1 that when he is going to kill the person. The prosecution case discloses that A2 had borrowed loan from the deceased and that the deceased was using all filthy and abusive language for non repayment of loan. Therefore A2 had grouse against the deceased.
8. The case of the prosecution further disclose that after burial of the deceased, A1 and A2 visited the house of the deceased. PW3 - friend of the deceased had also visited the house at that time. The A1 and A2 were complimenting each other for success of their scheme of murdering 11 Manjunath and A1 was saying A2 he will have no rivals in the APMC yard henceforth. A2 told A1, he will send the money. PW3 overheard the conversation.
9. The A1 to A3, A4, A5 and A7 are arrested and tried for the charge U/S.302, 506 r/w. Sec.34 IPC. The A6 was absconding,. The case against A6 is split up and a separate charge sheet is filed against A6 in SC No.724/2006. A7. A8 are absconding. The case against them is split up. The trial court tried and convicted A1 to A5 and A7. The convicted accused each of them have filed appeal except A1.
10. Sri C.H. Jadhav, Senior Counsel strenuously submitted the following circumstances to assail order of conviction:
a. A1 and A2 are implicated on the basis of the conspiracy. It is the case that A1 and A2 in the transport office of the deceased were conversing without naming the person that he told that he will make my wife to wear white saree (to mean that she would be widowed) and that before he is killed, the person who has given threat(without 12 naming) he should be killed and tells that why he(A1) is committing delay to commit the murder. There is no specific reference to the name of the deceased in the conversation.
PW8 supposed to have overheard the conversation. This evidence with regard to conspiracy is a vague. There is no reference to the accused. Therefore, the evidence of PW8 in that regard cannot be considered as a circumstance to constitute the conspiracy to cause murder.
b. The prosecution projects the evidence of PW3 who testifies to the fact that he over heard the conversation between A1 and A2 who visited the house of the deceased after his burial. PW3 was also present. A1 tells A2 that as per the plan, the deceased Manjunatha has been murdered and that there will be no rivals for them in the APMC market. A1 and A2 thank each other and A2 in turn tells that as per the agreement he will send 2 lakhs to A1. It is argued that the statement of PW3 is recorded by the police 10 days after the incident. If really PW3 has over heard this conversation, he should have reported the matter to the police immediately since he happens to be a family friend of 13 the deceased. The police should have got the clue and should have named and arrested A1 and A2 immediately, whereas A1 and A2 are belatedly arrested i.e., on 03.04.2005. The delay in recording the statement and delay in arrest of A1 and A2 exposes the circumstance of conspiracy to serious doubt and it is a concocted circumstance.
c. The evidence of PW4, PW6 and PW7 that they are witnesses to the incident and that they have seen the accused at the time of assault is incredible. It is in the evidence of PW1 that he was with the deceased at the time of incident. PW6 and PW7 were in the shop. On hearing the cries, PW7 states that he along with PW6 went to the spot and witnessed the incident of assault. In the cross- examination he admits that the deceased was found dead, and people had gathered when he visited the spot. Therefore, the evidence of PW6 and 7 in their examination- in-chief that when they went to the spot the assault was going on is incredible. Their evidence to that effect is false and concocted.
14
11. PW7 being a close friend of the deceased and supporter of the deceased, quite naturally the accused are opposed to the deceased. Therefore he has given false evidence and also induce PW1 and 6 to give gales evidence.
12. It is in the evidence of PW1 that when PW16 was replacing the wheel he was keenly observing PW16 and that the deceased was also standing near the vehicle resting his hands on the vehicle, at that time the assault takes place. When PW1 was keenly observing the repair work, it was not possible for him to see the assailants. It is also admitted that he got frightened and moved to a distance from the scene. In the circumstances, it is improbable for PW1 to have keenly seen the assailants.
13. In the FIR, PW1 states that he had seen one of the assailants clearly and gives description of one of the assailant. Regarding the other assailants no descriptions are given.
14. In the context of discrepancies in the evidence of PW1, PW6 and PW7 with regard to their witnessing the 15 incident and noticing the assailants, it becomes doubtful to accept the version that they could have identified A4, A5 and A7 in the T.I. parade. It is suggested in the evidence that the accused persons were shown to PW1, PW6 and PW7 prior to the incident and their photos were also shown to enable them to identify the said accused in the TI parade. The said suggestion has however denied by the witnesses.
15. The T.I. parade is conducted with inordinate delay of 41 days after the arrest. In this regard, relied upon the decision of the Supreme Court in the case of State of Andhra Pradesh Vs. Dr.M.V. Ramana Reddy and others reported in 1991 Crl.L.J. 2073 wherein it is held that the Test Identification parade held with a delay of 10 days and no valid explanation is tendered by the prosecution for the delay in conducting the Test Identification parade. The identification of accused Nos.3 and 5 by PW1 in the cited case was held to be a doubtful circumstance. In this case, it is held that there is delay of almost 41 days. Therefore no credence can be given to the TI parade conducted. 16
16. The decision of the Supreme Court in Subash and Shiv Shankar Vs. State of U.P. reported in AIR 1987 SC 1222 is relied on. In the said decision it was held that in the absence of mentioning of the features of the assailants in the FIR or in the statement recorded by the police, the identification of the accused by the witnesses in the T.I. parade becomes doubtful to be believed. In this case also, it is argued that PW1 states that he was able to identify only one of the assailants clearly in the FIR and gives description of the said assailant, but does not give the description of the other assailants. Therefore, the evidence of PW1 regarding the identification of A4, A5 and A7 in the T.I. parade becomes doubtful to be believed and the evidence of PW1 is a concocted evidence.
17. The theory of motive projected by the prosecution is discrepant. The ill-will between A3 and the deceased is totally distinct and independent and unconnected with the motive of A2. There is no synthesis and nexus between the motive of A2 with the deceased and motive of A3 with the deceased. There is no evidence of 17 conspiracy or sharing of common intention between A2 and A3, therefore, there is no basis to suggest that A1 to A3 conspires to kill the deceased by hiring mercenaries.
18. The recovery evidence, the FSL and Serologist's report discloses that the bloodstains on the weapons seized from the accused and the bloodstains on the clothing of the deceased belong to 'A' group blood. The entire discovery evidence is discrepant and cannot be believed. The panch witnesses have turned hostile. The concealment of the weapons by A5 and A7 at the gate of APMC and concealment of weapon by A4 at Peenya Industrial Estate, at different places is incredible and recovery evidence is concocted.
19. The High Court Government Pleader strenuously argued that the order conviction recorded by the trial court and the evidence of PWs.6 and 7 who identified A4, A5 and A7 at the T.I. parade is a credible evidence and the order of conviction is sound and proper. With regard to the conspiracy also between A1 and A2, the evidence of PW3 who is a witness to the conversation between A1 and A2 18 after the murder, clinchingly establishes that they conspired and caused the murder. The recovery evidence also establishes the bloodstains on the weapons seized from the accused and bloodstains found on the clothing of the deceased belong to 'A' group blood. This will probabalizes that the weapons i.e. M.Os.3, 4 and 8 are used for the commission of the offence by A4, A5 and A7. Therefore, submitted that the order of conviction is sound and proper and that the appeals are to be dismissed.
20. Upon thorough consideration of the facts, evidence and the submissions made at the Bar, it becomes evident that the motive put forth on the part of A1 and A2 to cause the murder of the deceased and the motive on the part of A3 for murder is distinct and different. The evidence placed by the prosecution discloses that only conspiracy of A1 and A2 testified by PW2 also appears to be an incredible circumstance, because of the delay in recording the statement of PW3. If really PW3 had over heard the conversation, he should have immediately reported the matter to the family members of the deceased and to the 19 police. A1 and A2 should have been arrested immediately. The statement of PW3 is belatedly recorded after 10 days. Therefore, the theory of conspiracy testified by PW3 is incredible.
21. With regard to A3, there appears to be no evidence for conspiracy. The prosecution has only put forth the motive to the effect that in the monetary dispute between PW7 and another and A3 had arbitrated and decided that PW7 should pay money to his opponent. A3 was expecting good remuneration but the deceased arbitrated and got A3 a remuneration of Rs.50000/- as against his demand for Rs.2,00,00,000/-. Therefore A3 had grouse against the deceased. The said circumstance alone cannot substantiate and prove conspiracy between A3 on the one part and A1 and A2 on the other part. Therefore, there appears to be no incriminating evidence against A3 to base conviction.
22. With regard to A4 and A5 and A7, it is the case of the prosecution that they are mercenaries. The evidence discloses that PW1 was present at the scene when the 20 murder took place. PW6 and PW7 go to the scene when the assault was going on. However in the cross-examination of PW7, it is elicited that by the time he went there, Manjunatha was lying dead and people had gathered. If this admission in the cross-examination taken into consideration the claim that PW6 and PW7 who go simultaneously to the scene, could not have seen the assailants, by that time perhaps the assailants would have fled away. Perhaps after the decamp of the assailants, the people normally would gather. It is also in the evidence that the accused threatened the people not to come near for rescue. In that context, the evidence of PW6 and PW7 that they had witnessed the assault at the scene becomes doubtful to be believed.
23. The evidence of PW1 becomes pivotal for consideration to hold whether he could have seen the assailants at the time of assault. The argument that PW1 could not have noticed the assailants since he was keenly observing the repair made by PW16 is an untenable argument. The evidence of PW1 and the contents of FIR clearly disclose that he did see the assault by the assailants 21 and in the complaint he also mentions that he was able to see one of the assailants clearly and gives description.
24. The learned Sr. Counsel has relied upon the decision of the Supreme Court in 1991 Crl.L.J. 2703, in the case of State of Andhra Pradesh Vs. M.V. Ramana Reddy and others. In the said decision in para No.22 the Supreme Court has made the following observations:-
"22. That takes us to the question of the involvement of accused Nos.3 and 5. The evidence of PW1 is that when she heard the cries of her father she woke up and saw accused No.1 and six or seven others belabouring him. This means that she did not know and could not identify the companions of accused No.1. However, when she tried to raise an alarm, three of the assailants approached her and pinned her down to the bed, and one of them threatened to stab her. He did carry out his threat as is evident from the injuries sustained by her. She was able to identify two of them at the identification parade held on May 23, 1975. This proved through the evidence of PW14 who conducted the test identification 22 parades. Now accused Nos.3 and 5 had surrendered before the court on May 13, 1975. The identification parade was actually held on May 23, 1975. There is no valid explanation tendered by the prosecution for the delay in holding the identification parades. The defence has suggested in the cross-examination of PW1 and PW25 that in the meantime the accused who were in custody were shown to the witnesses and the police had secured a group photograph in which accused Nos.3 and 5 figured to facilitate their identification. The High Court was, however, reluctant to place absolute reliance on the evidence of PW1 regarding the identify of accused Nos.3 and 5. In the absence of a valid explanation for the delay we do not think that this approach of the High Court can be said to be manifestly wrong to call for our intervention."
25. It is clear from the observations that it is not merely for delay in conducting the T.I. parade, the evidence of PW1 was rejected. The reason for rejection of the evidence was for the fact that there was no explanation for the delay. Here in this case, the prosecution has successfully explained 23 the delay. The proceedings of the order sheet of the Magistrate disclose that A4, A5 and A7 were arrested on 06.04.2005 and they were produced on 07.04.2005 and they were remanded to J.C. on 16.04.2005. When the said accused were in J.C., the I.O. makes an application for T.I. parade. The Magistrate passed an order directing the Taluka Executive Magistrate to hold T.I. parade by 18.04.2005. But the T.I. could not be held on that date.. The T.I. parade was held on 16.05.2005, till then the accused were in J.C. The T.I. parade was held in Central Jail. There was no lapse or negligence on the part of the I.O. in not making efforts to have T.I. parade conducted at the earliest. Despite the orders of the JMFC, the Taluka Executive Magistrate has not conducted the T.I. parade in time. For delay if any, no fault could be found with the I.O. since he has made all diligent efforts to get the T.I. parade conducted at the earliest.
26. The contention that PW1 would have been shown the photos and also the accused before T.I. parade is only a surmise. In the cross-examination, PW1 totally denies all these suggestions and says that at the time of incident, 24 he has seen the assailants and in the T.I. parade and thereafter identified and on three occasions, he says that he has seen the accused and identified them in the T.I. parade. The decision of the Supreme Court in AIR 1987 SC 1222 reported in Subash and Shiv Shankar Vs. State of U.P. in para No.9 the following observations are made.
"9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha I nor in their statements during investigation, the eye-witnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had 'sallow' complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time. Because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Exhibit Kha I or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of 25 the assailants of Ram Babu. As pointed out in Muthu Swami Vs. State of Madras AIR 1954 SC 4, where an identification parade is held about two and half months after the occurrence it would not be safe to place reliance on the identification of the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367, it was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case, there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accep that inspite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade."
In the cited case, it is for the first time the witness who identified the accused in the T.I. parade. In the evidence gives the features for having identified the accused in the T.I. parade, which was not stated in the statement recorded earlier by the I.O. U/s.161 Cr.P.C. In view of the said evidence, the Supreme Court has observed that if that was the reason for identifying the accused, the said reasons if known to the witness, he would have divulged the features of the accused in the FIR or in his statement before the 26 police and the said features were divulged only in the evidence. That apart, the T.I. parade was conducted with a delay of 4 months.
But in this case, PW1 emphatically states in the FIR that he was able to see only one of the accused clearly and gives features. With regard to the other accused nothing is stated that he would not be able to identify them. PW1 had no occasion to see accused persons after the incident and before the T.I. parade. The accused were in J.C. The T.I. parade was held in the Central Jail. There is absolutely no ill motive that could be attributed to PW1 to falsely identify A4,A5 and A7 in the T.I. parade. The accused persons are strangers and they are hired mercenaries. They too have no personal grouse against the deceased. Therefore, the ratio laid down in the cited case by the counsel for the defence has no application to the facts of the case. There is no reason to disbelieve the evidence of PW1 with regard to his identification of the A4, A5 and A7 in T.I. parade. Besides that the recovery evidence also probabalize that the weapons used at the voluntary instance of the accused are the one 27 used for the commission of the offence as per the FSL and Serologist's report, which corroborates the prosecution version.
Therefore, on over all consideration, we find that the conviction of A1 to A3 is bad in law. The conviction of A4 A5 and A7 is sound and proper.
Accordingly, Crl.A.No.290/2009 filed by A2 and Crl.A.No.245/2009 filed by A3 are allowed. A2 and A3 are set at liberty forthwith, if they are not required to be detained in any other case.
The order of conviction against A4, A5 and A7 is confirmed and Crl.A.Nos.143/2011, 418/2009 and 412/2009 filed by A4, A5 and A7 respectively are dismissed.
It appears that A1 has not filed any appeal. However, even in the absence of appeal, on the basis of evidence discussed, there appears no case is made out against A1. Therefore, A1 is also directed to be set at liberty forthwith if he is not required to be detained in any other case. 28
In Crl.A.No.143/2011, the Amicus Curiae fee is fixed at Rs.7,000/-. The State shall pay the same.
Sd/-
JUDGE Sd/-
JUDGE Dvr/psg*