Karnataka High Court
Sri. Lokesh @ Nepali vs State Of Karnataka on 7 January, 2022
Bench: B.Veerappa, M G Uma
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE Mr. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE M.G. UMA
CRIMINAL APPEAL No.1850/2017
C/W
CRIMINAL APPEAL No.1578/2017
IN CRL. A. No.1850/2017:
BETWEEN:
SRI. LOKESH @ NEPALI,
S/O. DHARAMARAJ,
AGED ABOUT 25 YEARS,
R/O. METACOST FACTORY,
R.I, POLYTECHNIC COLLEGE,
11TH MAIN, III PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU.
...APPELLANT
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
AND:
STATE OF KARNATAKA
2
REP BY INSPECTOR OF POLICE,
RAJAGOPALNAGAR POLICE STATION,
REP BY THE STATE PUBLIC PROSECUTOR,
HON'BLE HIGH COURT
OF KARNATAKA,
BENGALURU-560 001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 07.04.2017 PASSED BY THE LXV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU IN S.C.NO.317/2014 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC.
IN CRL. A. No.1578/2017:
BETWEEN:
CHETHAN KUMAR @ CHETHU
S/O SHIVANNA,
AGED ABOUT 28 YEARS,
R/AT MACHOHALLI GATE,
NEAR POOJA HOSPITAL,
THAVAREKERE, MAGADI TALUK,
RAMANAGARA DISTRICT.
...APPELLANT
(BY SRI DEVENDRA E.H., ADVOCATE FOR
SRI MOHAN KUMAR D., ADVOCATE)
3
AND:
STATE OF KARNATAKA
STATE BY POLICE INSPECTOR,
RAJAGOPALNAGAR
POLICE STATION,
BENGALURU.
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 07.04.2017 PASSED BY THE LXV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU IN S.C.NO.317/2014 -
CONVICTING THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR ORDERS THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
4
JUDGMENT
Criminal Appeal No.1850/2017 is filed by Accused No.1 and
Criminal Appeal No.1578/2017 is filed by Accused No.3.
2. These criminal appeals are filed by the appellants/Accused
Nos.1 and 3 against the judgment of conviction and order of
sentence dated 7th April 2017 made in S.C. No.317/2014 on the file
of the LXV Addl. City Civil and Sessions Judge, Bangalore City,
convicting Accused Nos.1 and 3 for the offence punishable under
Section 302 r/w Section 34 of IPC and sentencing them to undergo
imprisonment for life and to pay fine amount of Rs.50,000/- each.
3. It is the case of the prosecution that on 24.8.2013 at
about 10.30 p.m. deceased Basavaraju and PW.4 - Mehaboob Ali
were proceeding near the premises of Indian Garage, 11th Main
Road, 3rd Phase, Peenya Industrial Area, Kaveri Nagar, Laggere,
within the limits of Rajagopalanagar Police Station and at that time,
they were wrongfully restrained by Accused Nos.1 and 3 along with
absconding Accused No.2 and questioned them as to why they
were proceeding there at late night. There was exchange of words
between them and Accused Nos.1 to 3 have abused the deceased
and PW.4-Mehaboob Ali, in filthy language. Hence deceased
questioned Accused Nos.1 to 3 about abusing him and PW.4.
Therefore with their common intention to commit the murder of
deceased, Accused Nos.2 and 3 held him and at that juncture,
Accused No.1 stabbed below the left portion of chest and right hand
of deceased with the button knife - MO.3 and as a result Basavaraj
collapsed on the ground and at that juncture, absconded Accused
No.2 robbed the Cell phone of deceased and then they ran away
from the scene of offence. Immediately, PW.3 - Nagaraju and
PW.4 - Mehaboob Ali shifted the deceased to Premier Sanjeevini
Hospital, T. Dasrahalli, wherein the injured Basavaraju was brought
dead and thereby Accused Nos.1 to 3 have committed alleged
offences.
4. Accordingly, PW.3 - Nagaraju lodged the complaint before
the Rajgopalnagar Police Station on 25.8.2013 at 1.30 a.m. and the
same was registered in Crime No.426/2013 for the offence
punishable under the provisions of Section 302 r/w 34 of IPC.
After investigation, the Investigating Officer filed the charge sheet.
After filing of charge sheet, committal Court took cognizance of the
offences and committed the case to the Court of Sessions. The
learned Sessions Judge framed the charges against Accused Nos.1
to 3 for the offences punishable under Sections 302 and 392 r/w
34 of IPC and the same was read over to the accused in the
language known to them. The accused pleaded not guilty and
claimed to be tried. During the pendency of the case, Accused No.2
remained absconding. Hence, the case against Accused No.2 was
ordered to be split up and registered a separate case against him
and the learned Judge proceeded against Accused Nos.1 and 3 only.
5. In order to establish its case, the prosecution examined in
all 17 witnesses as PWs.1 to 17 and got marked 18 documents as
per Ex.P1 to Ex.P18 and also marked MOs.1 to 8. After completion
of evidence of the prosecution witnesses, the statements of
Accused Nos.1 and 3 were recorded as contemplated under the
provisions of Section 313 of the Code of Criminal Procedure, who
denied the incriminating evidence adduced against them, but have
not adduced any defence evidence.
6. The learned Sessions Judge based on the aforesaid
pleadings, has framed three points for consideration. Considering
both the oral and documentary evidence on record, the learned
Sessions Judge answered Point Nos.1 and 2 in the affirmative
holding that the prosecution proved beyond all reasonable doubt
that the death of deceased Basavaraj was culpable homicide and
not under natural circumstances and further held that the
prosecution proved beyond all reasonable doubt that on 24.8.2013
at about 10.30 p.m., deceased Basavaraju and PW.4 - Mehaboob
Ali were proceeding near the premises of Indian Garage compound,
11th Main Road, 3rd Phase, Peenya Industrial Area, Kaveri Nagar,
Laggere, within the limits of Rajagopalanagar Police Station and at
that time, they were wrongfully restrained and abused in filthy
language by Accused Nos.1 & 3 along with absconded Accused
No.2 and when the deceased Basavaraju questioned the same, with
their common intention to commit the murder of deceased, Accused
Nos.2 and 3 held him and at that juncture, Accused No.1 stabbed
below the left portion of chest and right hand of deceased, by
means of button knife - MO.3 and as a result Basavaraj succumbed
to the injuries and thereby, Accused Nos.1 and 3 have committed
the offence punishable under Section 302 r/w Section 34 of IPC.
7. Learned Sessions Judge further recorded a finding that
the prosecution failed to prove beyond reasonable doubt that
Basavaraju-the deceased collapsed on the ground, accused No.2
robbed his cell phone from his shirt pocket and thereby accused
Nos.1 and 3 have committed an offence punishable under Section
392 read with Section 34 of IPC. Accordingly, learned Sessions
Judge by the impugned judgment of conviction and order of
sentence acquitted accused Nos.1 and 3 for the offence punishable
under Section 392 read with Section 34 of IPC and proceeded to
convict accused Nos.1 and 3 for the offence punishable under
Section 302 read with Section 34 of IPC and sentenced them to
undergo imprisonment for life and to pay a fine of Rs.50,000/- each
(Rupees Fifty thousand only). Hence, the present appeals are filed
by accused Nos.1 and 3.
8. The prosecution has not filed any appeal against the
impugned judgment of acquittal, acquitting accused Nos.1 and 3
under the provisions of Section 392 read with Section 34 of IPC.
9. We have heard the learned counsel for the parties.
10. Sri. Veeranna.G.Tigadi, learned counsel for the
appellant/accused No.1 in Crl.A.No.1850/2017 vehemently
contended that the impugned judgment of conviction and order of
sentence passed by the trial Court convicting accused No.1 and
sentencing him to undergo imprisonment for life and to pay a fine
of Rs.50,000/- for the offence punishable under Section 302 read
with Section 34 of IPC is illegal, perverse and liable to be set aside.
The trial Court has erred in not considering the materials placed on
record and wrongly relied on the evidence of alleged eye-witnesses
to the incident i.e., PW.3-N.A.Nagaraju, PW.4-Mehaboob Ali, PW.9-
R.K.Basavaraju and PW.10-Ramesh, who are all interested
witnesses. Admittedly, PW.9 in his cross-examination stated that he
could not identify the assailants. The said material aspect has not
been considered by the trial Court. He further contended that the
identity of the accused who stabbed the deceased was not
established as admitted by PWs.4 and 9 in their cross-examination.
It is further contended that Ex.P1-spot mahazar does not disclose
about any light on the date of incident that was occurred on
24.08.2013 at about 10:30 p.m. Admittedly, the complaint filed by
PW.3 is against unknown persons.
11. He would further contend that no Test Identification
Parade was conducted. In the absence of conducting any Test
Identification Parade, merely because the accused persons were
identified before the court after three years of incident, cannot be a
ground to implicate accused No.1 in the homicidal death of the
deceased. Thereby, learned Sessions Judge erroneously convicted
accused No.1. Learned counsel further contended that the accused
persons were identified for first time in the court after three years
of incident, which is impermissible. The prosecution has suppressed
the very genesis of the case. PW.3 in his cross-examination stated
that deceased has not consumed alcohol at the time of incident, but
Doctor-PW.14 in his cross-examination, has admitted that the
deceased has consumed alcohol at the time of incident. He further
contended that recovery of the Knife-MO.3 at the instance of
accused No.1 and Mobile-MO.4 from accused No.2 is doubtful as the
finding recorded by the trial Court in respect of point No.3 with
regard to Section 392 read with Section 34 of IPC, which is an
adverse finding against the prosecution is not challenged. Thereby,
the prosecution has not proved the recovery at the instance of
accused Nos.1 to 3. He would further contend that the voluntary
statements of accused Nos.1 and 2 are verbatim. Thereby, the
recovery if any is at the instance of police and not on the basis of
the voluntary statements of accused Nos.1 and 3.
12. Learned counsel further contended that according to
PW.17-Investigating Officer, accused Nos.1 and 2 were
apprehended on 25.08.2013 at about 9:30 a.m. i.e., within 11
hours from the time of incident and on the same day the
statements of PWs.4 and 9 were recorded. But PW.11-Head
Constable stated that accused Nos.1 and 2 were apprehended and
produced before the Investigating Officer at about 9:45 p.m., on
25.08.2013 but Ex.P9-Report/statement of PW.11 depicts that
PW.11 and other staff have collected information about the
presence of the accused persons in the ground of Sriranga
Vidyanikethana School and that at about 9:00 p.m., on 25.08.2013,
enquired them and collected their name and address. Thereby, the
very arrest/apprehension of accused persons is doubtful.
Therefore, the benefit of doubt has to be given to accused No.1. He
would further contend that PW.2 though supported the case of the
prosecution stating that as per Ex.P4-Seizure Mahazar there was
recovery of MO.3, but in the cross-examination states that there
was no recovery at all. It is further contended that the entire case
of the prosecution is only on the basis of assumption and
presumption. Admittedly, complaint lodged by PW.3 is against
unknown persons. Thereby, the impugned judgment of conviction
and order of sentence passed by the trial Court is without any
basis. Therefore, he sought to allow these appeals.
13. The learned counsel for accused No.1 in support of his
contentions, with regard to identity, relied upon the following
dictums of the Hon'ble Supreme Court:
I. Ashoksinh Jayendrasinh v. State of Gujarat, (2019) 6
SCC 535, wherein it is held in Paragraph-12 as under:
"12. The occurrence was of 23-11-1997 at 9.00 p.m. in the
agricultural field of complainant-Somabhai Rupabhai (PW
3), where it was dark. The panchnama of the scene of
occurrence (Ext. P-73) shows no indication of the electric
light either in the animal shed situated behind the house of
complainant or that there is any electric pole anywhere in
the vicinity or that there is a light on the well which is
supplying water. Case of prosecution is that the appellant
and six other co-accused surrounded the complainant
party and there were three gunshots fired. The injured
witness (PW 6) in his cross-examination has admitted that
he had not stated anything about the burning light either
in the animal shed or anywhere in the vicinity. In the
absence of any evidence as to the light aspect, the
possibility of identifying the accused in the darkness of the
agricultural field of the complainant, particularly at 9.00
p.m. becomes doubtful. It is also to be pointed out that
there is no evidence as to whether there was moonlight on
23-11-1997 and complainant has also not stated that he
has identified the appellant or other co-accused with the
help of moonlight. In the absence of evidence as to the
availability of sufficient light, the identification of the
accused and the overt act attributed to the appellant
becomes doubtful".
II. Iqbal v. State of U.P., (2015) 6 SCC 623 (Paragraphs
No: 10 to 14)
"10. In cases of dacoity, usually, the offence is
committed by unknown persons with the criminal
background. It is only in very few cases, are the accused
dacoits known to the victim. PW 1 Patia Singh and PW 2
Jay Singh have stated that they had witnessed the incident
from a distance of three-and-a-half yards. PW 3 Begraj
also stated that he had witnessed the incident from a
distance of five-six yards in the feeble torchlight.
Admittedly, according to the witnesses, there was no
electricity at the time of incident in their houses. They
claimed that they could see the accused persons with the
help of their torchlights. In the courts below, on behalf of
the accused persons, it was argued that the night of
incident was an amavasya-new moon night. On a perusal
of calendar of that month in that year, it is seen that the
intervening night of 21-9-1979/22-9-1979 was a new
moon night i.e. "amavasya".
11. In our considered view, it is unbelievable that on a new
moon night when it was pitch dark, the witnesses who
were frightened and who were hiding themselves behind
the walls in order to save themselves, could have seen
actual faces of the accused persons just by flash of
torchlights on their faces and in the light of lantern.
Further, there were about 14-15 dacoits in number, all
armed with deadly weapons and were continuously making
ingress and egress in the house of the deceased, it
becomes inconceivable as to how the witnesses standing at
a distance in a feeble light would have been able to
identify the dacoits.
12. When the witnesses are in a panicky state and
standing at a distance of three-and-a-half yards and five-
six yards, it is doubtful whether the witnesses would have
gained an enduring impression of the identity of the
accused. In the commission of offence of dacoity,
identification becomes susceptible to errors and
miscarriage of justice. In Hari Nath v. State of U.P. [(1988)
1 SCC 14 : 1988 SCC (Cri) 14], this Court held as under:
(SCC pp. 19-21, paras 16-19)
"16. ... The conduct of an identification parade
belongs to the realm, and is part of the investigation.
The evidence of test identification is admissible
under Section 9 of the Evidence Act. But the value of
the test identification, apart altogether from the
other safeguards appropriate to a fair test of
identification, depends on the promptitude in point of
time with which the suspected persons are put up for
test identification. If there is unexplained and
unreasonable delay in putting up the accused
persons for a test identification, the delay by itself,
detracts from the credibility of the test.
17. The one area of criminal evidence
susceptible of miscarriage of criminal justice is the
error in the identification of the criminal. Indeed
Prof. Borchard's Convicting the Innocent records
several criminal convictions in which the accused was
subsequently proved innocent. The major source of
the error is to be found in the identification of the
accused by the victim of the crime. Indeed the
learned author refers to the source of mistaken
identification thus:
'The emotional balance of the victim or
eyewitness is so disturbed by his extraordinary
experience that his powers of perception become
distorted and his identification is frequently most
untrustworthy. Into the identification enter other
motives not necessarily stimulated originally by the
accused personally -- the desire to requite a crime,
to exact vengeance upon the person believed
guilty, to find a scapegoat, to support, consciously
or unconsciously, an identification already made by
another. Thus, doubts are resolved against the
accused.'
(See Identification Parades II--Criminal Law
Review, 1963--p. 546.)
18. Glanville Williams in The Proof of Guilt --
(Hamlyn Lectures) -- refers to the errors of
recognition breeding an invincible assurance in the
witnesses, highly deceptive for those who are not
forewarned of such possibilities, and excerpts
Gorphe's results of a continental investigation, thus:
'There is no difference from the subjective point of
view, between true and false recognition, so far as
their intrinsic qualities are concerned, and there are
no objective signs to distinguish one from the
other. ... The witness's certainty may not be
immediate, without this delay being necessarily a
sign of error. [Ed.: Matter between asterisks
emphasised in original.] Nevertheless, error is more
frequent when recognition comes some time after
seeing [Ed.: Matter between asterisks emphasised
in original.] ....
The act of recognition is very open to suggestion
in all its forms.... Resemblance is a matter of
relativity. For a white person, all negroes are like
each other, and conversely. A person can much
better distinguish those of his own age and
condition than those of different ages and
condition. Uniform is a cause of fallacious
resemblance, above all for those who do not wear
it.'
19. The evidence of identification merely
corroborates and strengthens the oral testimony in
court which alone is the primary and substantive
evidence as to identify."
(emphasis supplied)
13. As noticed earlier, test identification parade was
conducted in jail on 15-11-1979 by PW 6 Special Executive
Magistrate in which the witnesses PW 1, PW 2 and PW 3
identified the accused. As far as test identification parade
is concerned, it is relevant to note that accused Kripa has
contended that he had been falsely implicated in the case
because of the rivalry with Rampal Singh and his maternal
uncle Mangeram. Accused Kripa also pleaded that the
witnesses knew them as they were living in nearby villages
and because of rivalry, they were being falsely implicated
in the case. So far as Appellant 2 Khurshed and another
co-accused Kishnu are concerned, they had stated that
they were arrested by the police from their houses and
they were shown to the witnesses at the police station and
they were also photographed before holding the test
identification parade.
14. Even though the complainant PW 1 and other
witnesses have denied the defence plea, in the light of the
fact that the incident occurred in the pitch of darkness, the
identification of the appellants by the witnesses has to be
viewed with caution and the Court is to look for
corroboration strengthening the identification".
III. Noorahammad v. State of Karnataka, (2016) 3 SCC 325
"24. In the instant case, TIP of the appellant-accused
should have been carried out at the instance of the
investigating officer. The High Court, in this regard, has
erred in appreciating the evidence on record in the light of
the facts and circumstances of the present case. From the
material on record, it is sufficiently clear that the incident
occurred in the night around 3.00 a.m., at a place where
there was no proper light. From the material on record it is
not clear whether the source of light in the form of torches
and jeep flash light was sufficient to enable the forest
officers to see the appellant-accused for the purpose of
their identification in later stage of the case. No doubt, law
with regard to the importance of TIP is well settled that
identification in court is a substantive piece of evidence
and TIP simply corroborates the same.
25. This Court in Dana Yadav v. State of Bihar [Dana
Yadav v. State of Bihar, (2002) 7 SCC 295 : 2002 SCC
(Cri) 1698] has elaborated upon the importance of test
identification parade in great details. The relevant paras 6,
7 and 8 read thus: (SCC pp. 302-04)
"6. It is also well settled that failure to hold test
identification parade, which should be held with
reasonable dispatch, does not make the evidence
of identification in court inadmissible, rather the
same is very much admissible in law. Question is,
what is its probative value? Ordinarily,
identification of an accused for the first time in
court by a witness should not be relied upon, the
same being from its very nature, inherently of a
weak character, unless it is corroborated by his
previous identification in the test identification
parade or any other evidence. The purpose of test
identification parade is to test the observation,
grasp, memory, capacity to recapitulate what a
witness has seen earlier, strength or
trustworthiness of the evidence of identification of
an accused and to ascertain if it can be used as
reliable corroborative evidence of the witness
identifying the accused at his trial in court. If a
witness identifies the accused in court for the first
time, the probative value of such uncorroborated
evidence becomes minimal so much so that it
becomes, as a rule of prudence and not law, unsafe
to rely on such a piece of evidence. We are fortified
in our view by a catena of decisions of this Court in
Kanta Prashad v. Delhi Admn. [Kanta Prashad v.
Delhi Admn., AIR 1958 SC 350:1958 Cri LJ 698],
Vaikuntam Chandrappa [Vaikuntam Chandrappa v.
State of A.P., AIR 1960 SC 1340 : 1960 Cri LJ
1681], Budhsen [Budhsen v. State of U.P., (1970)
2 SCC 128 : 1970 SCC (Cri) 343], Kanan v. State
of Kerala [Kanan v. State of Kerala, (1979) 3 SCC
319 : 1979 SCC (Cri) 621], Mohanlal Gangaram
Gehani v. State of Maharashtra [Mohanlal
Gangaram Gehani v. State of Maharashtra, (1982)
1 SCC 700 : 1982 SCC (Cri) 334], Bollavaram
Pedda Narsi Reddy [Bollavaram Pedda Narsi Reddy
v. State of A.P., (1991) 3 SCC 434 : 1991 SCC
(Cri) 586], State of Maharashtra v. Sukhdev Singh
[State of Maharashtra v. Sukhdev Singh, (1992) 3
SCC 700 : 1992 SCC (Cri) 705], Jaspal Singh v.
State of Punjab [Jaspal Singh v. State of Punjab,
(1997) 1 SCC 510 : 1997 SCC (Cri) 358], Raju v.
State of Maharashtra [Raju v. State of
Maharashtra, (1998) 1 SCC 169 : 1998 SCC (Cri)
296], Ronny [Ronny v. State of Maharashtra,
(1998) 3 SCC 625 : 1998 SCC (Cri) 859], George
v. State of Kerala [George v. State of Kerala,
(1998) 4 SCC 605 : 1998 SCC (Cri) 1232], Rajesh
Govind Jagesha [Rajesh Govind Jagesha v. State of
Maharashtra, (1999) 8 SCC 428 : 1999 SCC (Cri)
1452], State of H.P. v. Lekh Raj [State of H.P. v.
Lekh Raj, (2000) 1 SCC 247 : 2000 SCC (Cri) 147]
and Ramanbhai Naranbhai Patel v. State of
Gujarat. [Ramanbhai Naranbhai Patel v. State of
Gujarat, (2000) 1 SCC 358 : 2000 SCC (Cri) 113]
7. Apart from the ordinary rule laid down in the
aforesaid decisions, certain exceptions to the same
have been carved out where identification of an
accused for the first time in court without there
being any corroboration whatsoever can form the
sole basis for his conviction. In Budhsen [Budhsen
v. State of U.P., (1970) 2 SCC 128 : 1970 SCC
(Cri) 343] it was observed: (SCC p. 132, para 7)
'7. ... 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 corroboration.'
8. In State of Maharashtra v. Sukhdev Singh
[State of Maharashtra v. Sukhdev Singh, (1992) 3
SCC 700 : 1992 SCC (Cri) 705] it was laid down
that if a witness had any particular reason to
remember about the identity of an accused, in that
event, the case can be brought under the exception
and upon solitary evidence of identification of an
accused in court for the first time, conviction can
be based. In Ronny [Ronny v. State of
Maharashtra, (1998) 3 SCC 625 : 1998 SCC (Cri)
859] it has been laid down that where the witness
had a chance to interact with the accused or that in
a case where the witness had an opportunity to
notice the distinctive features of the accused which
lends assurance to his testimony in court, the
evidence of identification in court for the first time
by such a witness cannot be thrown away merely
because no test identification parade was held. In
that case, the accused concerned had a talk with
the identifying witnesses for about 7/8 minutes. In
these circumstances, the conviction of the accused,
on the basis of sworn testimony of witnesses
identifying for the first time in court without the
same being corroborated either by previous
identification in the test identification parade or any
other evidence, was upheld by this Court. In Rajesh
Govind Jagesha [Rajesh Govind Jagesha v. State of
Maharashtra, (1999) 8 SCC 428 : 1999 SCC (Cri)
1452] it was laid down that the absence of test
identification parade may not be fatal if the
accused is sufficiently described in the complaint
leaving no doubt in the mind of the court regarding
his involvement or is arrested on the spot
immediately after the occurrence and in either
eventuality, the evidence of witnesses identifying
the accused for the first time in court can form the
basis for conviction without the same being
corroborated by any other evidence and,
accordingly, conviction of the accused was upheld
by this Court. In State of H.P. v. Lekh Raj [State of
H.P. v. Lekh Raj, (2000) 1 SCC 247 : 2000 SCC
(Cri) 147] it was observed (at SCC p. 253, para 3)
that:
'test identification is 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. 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
corroboration.'
In that case, laying down the aforesaid law,
acquittal of one of the accused by the High Court
was converted into conviction by this Court on the
basis of identification by a witness for the first time
in court without the same being corroborated by
any other evidence. In Ramanbhai Naranbhai Patel
[Ramanbhai Naranbhai Patel v. State of Gujarat,
(2000) 1 SCC 358 : 2000 SCC (Cri) 113] it was
observed: (SCC p. 369, para 20)
'20. ... It, therefore, cannot be held, as tried
to be submitted by the learned counsel for
the appellants, that in the absence of a test
identification parade, the evidence of an
eyewitness 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.'
The Court further observed: (SCC p. 369, para 20)
'20. ... the fact remains that these
eyewitnesses were seriously injured and they
could have easily seen the faces of the
persons assaulting them and their
appearance and identity would well remain
imprinted in their minds especially when they
were assaulted in broad daylight.'
In these circumstances, conviction of the accused
was upheld on the basis of solitary evidence of
identification by a witness for the first time in
court."
(emphasis supplied)
26. Another important fact which the High Court has failed
to appreciate is that the prosecution witness identified the
appellant-accused in court for the first time, during trial, in
the year 1997-1998 and the incident occurred in the year
1995. Thus, after considering some undisputed facts like
occurrence of incident at night, at a place with improper
lighting and all the appellant-accused were not known to
the forest officers, except one present at the place of
incident, there should have been TIP conducted at the
instance of the investigating officer. Therefore, the
identification of the appellant-accused by the prosecution
witness for the first time after a gap of more than 2 years
from the date of incident is not beyond reasonable doubt,
the same should be seen with suspicion".
,,,,
Hence, the learned counsel for the appellant/accused No.1
prays for allowing the Criminal Appeal.No.1850/2017 in the interest
of justice.
14. Sri. Devendra.E.H., learned counsel for Sri.Mohan
Kumar.D, learned counsel for the appellant/accused No.3 in
Crl.A.No.1578/2017, while adopting the arguments advanced by
the learned counsel for accused No.1, contended that there are
absolutely no materials against accused No.3 to implicate him in the
homicidal death of the deceased. Admittedly, both oral and
documentary evidence placed on record clearly depicts that the
complaint was filed against unknown persons by PW.3 and the
alleged eye-witnesses-PWs.1, 3, 4, 9 and 10 have clearly admitted
that they have not identified the assailants. In the absence of
identification of the accused, the imposition of punishment for
imprisonment for life with fine under the provisions of Section 302
read with Section 34 of IPC against accused No.3 is without any
basis. In the absence of conducting any Test Identification Parade
by the Jurisdictional Police/Investigating Officer, the entire case of
the prosecution is doubtful. Therefore, the benefit of doubt has to
be given to accused No.3. Hence, he sought to allow the appeal.
15. Per contra, Sri. Vijayakumar Majage, learned Additional
State Public Prosecutor while justifying the impugned judgment of
conviction and order of sentence passed by the trial Court,
contended that the trial Court considering the entire materials on
record in the proper prospective, came to the conclusion that
accused Nos.1 and 3 are involved in causing the death of the
deceased, which attracts the provisions of Section 302 read with
Section 34 of IPC. He further contended that with regard to the
arrest of accused Nos.1 and 3, the evidence given by the
Investigating Officer-PW.17 and PW.11-Head Constable and Exs.P4
and P9 has minor discrepancies. The said discrepancy does not
come in the way of prosecution case as the material on record
clearly depicts that accused Nos.1 and 3 are involved in causing the
death of the deceased. He further contended that there is no need
to conduct Test Identification Parade as accused Nos.1 and 3 have
been identified before the Police Station as well as before the Court.
He further contended that MO.3-Knife was recovered at the
instance of accused No.1 and MO.4-Mobile was recovered at the
instance of accused No.2. Thereby, the prosecution has established
beyond reasonable doubt the involvement of accused Nos.1 and 3
in the homicidal death of the deceased-Basavaraju. He would
further contend that with regard to the adverse finding recorded by
the trial Court under Section 392 read with Section 34 of IPC, the
same need not be challenged as the Court found involvement of
accused Nos.1 and 3 in the commission of offence.
16. The learned Additional State Public Prosecutor further
contended that as per FSL Report-Ex.P13, blood stains on the
clothes of the deceased and MO.3-knife contains "AB" Group blood.
Thereby, the prosecution proved its case beyond reasonable doubt.
The trial Court rightly convicted accused Nos.1 and 3 for the offence
punishable under Section 302 read with Section 34 of IPC and
sentenced them to undergo imprisonment for life and to pay a fine
of Rs.50,000/- each, the same is in accordance with law.
Therefore, this Court may not interfere with the impugned
judgment of conviction and order of sentence under the provisions
of Section 374(2) of Cr.P.C. Hence, he sought to dismiss these
appeals.
17. In view of the aforesaid rival contentions urged by the
learned counsel for the parties, the point that arises for our
consideration is:
have made out a case to interfere with the
impugned judgment of conviction and order of
sentence passed by the learned Sessions Judge,
convicting them for the offences punishable under
Section 302 r/w Section 34 of the Indian Penal
Code, in the facts and circumstances of the
present case?"
18. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire materials, including original records, carefully.
19. As per Ex.P5-Complaint lodged by PW.3-N.A.Nagaraju
on 24.08.2013 at about 10.30 p.m., when the deceased-Basavaraju
and PW.4 were proceeding near the premises of Indian Garage, 11th
Main Road, 3rd Phase, Peenya Industrial Area, Kaveri Nagar,
Laggere, they were wrongfully restrained by accused Nos.1 to 3 and
questioned them as to why they were proceeding there at late night
and at that juncture, exchange of words took place between
accused persons and deceased and that apart, accused Nos.1 to 3
have abused the deceased and PW.4 in filthy language and hence
the deceased questioned accused Nos.1 to 3 about abusing him and
PW.4. Therefore, with their common intention to commit the
murder of deceased, accused Nos.2 and 3 caught hold the deceased
and accused No.1 stabbed below the left portion of chest and right
hand of deceased by MO.3-knife. As a result, the deceased
collapsed on the ground and accused No.2 robbed his cell phone.
The jurisdictional police registered the case against the unknown
persons. After completion of investigation, the jurisdictional
Investigating Officer filed the charge sheet against accused Nos.1
to 3.
20. This Court being the Appellate Court, in order to
re-appreciate the entire materials on record, it is relevant to
consider the evidence of the prosecution witnesses and the
documents relied upon.
(i) PWs.1, 3, 4, 9 and 10 are the alleged eye-
witnesses to the incident. PW.1 specifically stated
that accused Nos.1 to 3 were not known to him and
also denied that he has identified the photo of the
deceased. Witness has not whispered in his
evidence that the Investigating Officer has drawn
Ex.P1-Mahazar in his presence at the scene of
occurrence and seized the blood-stained soil or
sample soil i.e., MOs.1 and 2 in his presence.
Thereby, he was treated as hostile.
(ii) According to the prosecution, PW.2 is the witness
to the recovery/seizure mahazar, who stated that
at the time of mahazar, himself and CW.9 were
present, they went along with the police and
accused persons to the place where mahazar was
drawn. He further stated that he was summoned to
the spot to draw the mahazar. Accordingly, he and
CW.9 went to the spot at about 1:00 to 2:00 p.m.,
when they went to the spot of the mahazar,
accused Nos.1 and 2 were also present at the spot.
Ex.P4 was drawn and there was recovery of MO.3
at the instance of accused Nos.1 and 2. Thereby
PW.2 supported the case of the prosecution.
(iii) According to the prosecution, PW.3 is one of the
eye-witness to the incident. PW.3 in his cross-
examination has admitted that at the time of
lodging Ex.P5-complaint, he has given information
to the police with regard to the description of the
accused persons, but admitted that in Ex.P5-
complaint he has not given description of the
accused persons and after lodging the complaint
also, he has not given any information to the police
with regard to description of the accused persons.
He further stated that about 9:30 p.m., after
finishing dinner from the house of CW.5, himself,
PW.4 along with the deceased went out of the
house but admitted that the same has not been
stated by him in Ex.P5-complaint. He further stated
that the deceased-Basavaraju was taken to the
Sanjeevini Hospital at about 12:00 a.m., in the Car.
The Doctors examined and declared that the
deceased was brought dead. He further admits
that the history of the injury sustained by the
deceased was not given to the Doctor by him or by
other persons who were with him.
(iv) According to the prosecution, PW.4 who is also an
eye-witness to the incident has stated on oath on
par with PW.3. He deposed that on the date of
incident, after finishing dinner in the house of
CW.5, at about 10:30 p.m., himself along with
PW.3 and deceased went out of the house for
walking and at that time, three unknown persons
came from the side of gas shop compound and
questioned as to why they have come there at that
time and started abusing in filthy language when
the same was questioned by the deceased, there
was exchange of words. At that time, out of three
unknown persons, two persons have caught hold
the deceased-Basavaraju and one person stabbed
the deceased. Therefore, himself and PW.3 stepped
back. At that time, one person snatched/robbed the
mobile from the deceased-Basavaraju and the
deceased fell down on the spot. When himself and
PW.3 shouted/screamed, CWs.5 and 7 came to the
spot by running. Immediately, the accused persons
ran away from the spot. Witness identified the
knife as MO.3. He supported the case of the
prosecution. Witness further stated in the cross-
examination that on the date of incident, either
CW.5 or deceased or himself have not consumed
any alcohol and denied that there was no quarrel
between them and the accused persons. He
admitted in the cross-examination that at the time
of enquiry, he has not given any details to the
police with regard to the description of the accused
persons as the incident took place at about 10.30
p.m. Witness further stated that after apprehension
of the accused persons, he was called to the police
station for identification of the accused.
Accordingly, he went there at about 4.30 a.m., and
on the same day he has seen the accused persons
at about 9.00 a.m., in the police station. Witness
further stated that when the police called him over
phone, they have not disclosed the names of the
apprehended accused persons and he has not got
any information stated with regard to the
antecedents of the accused persons. He further
denied the suggestion that even though he is not
aware about the description of accused No.3, he
has identified the said accused only before the
Court at the instance of police. Same is the
evidence of PW.10.
(v) PW.9-R.K.Basavaraju reiterating the averments
made in the chief examination has admitted in the
cross-examination that at the time of giving
statement to the police, he has stated with regard
to the description of the accused persons. As the
incident was taken place at night time, he had not
identified the persons who were present at the spot
at that time.
(vi) PW.11, the Head Constable has stated that on
25.08.2013, himself and other staffs i.e., CWs.20
to 22 were deputed to apprehend the accused
persons. Accordingly, on the same day at about
11.00 a.m., he along with other staff had gone in
search of the accused persons and on receiving the
information about the presence of the accused near
Sriranga Vidyanikethana School, they went to the
spot at about 9:00 p.m. and found accused Nos.1
and 2 in the ground of Sriranga Vidyanikethana
School. Accused persons were taken into custody
and their names and addresses were enquired.
After that, they were produced before the
Investigating Officer at about 9:45 p.m. Whereas,
PW.17, the Investigating Officer has stated that he
was not knowing about accused No.1 and his
description and identity was not given either by
PW.3 or by PW.4 to him. PW.17 admitted that
PW.11 and CWs.20 to 22 have collected
information about accused No.1 and after
apprehending, produced before him. PW.17 further
stated that accused No.1 was produced before him
by PW.11 and other staff on 25.08.2013 at about
9:30 a.m., in the police station and at that time he
conducted body search of accused No.1.
Based on the aforesaid materials on record, the trial Court
acquitted accused Nos.1 and 3 for the offence punishable under
Section 392 read with Section 34 of IPC, but convicted accused
Nos.1 and 3 under the provisions of Section 302 read with Section
34 of IPC.
21. A careful perusal of the materials on record clearly
depicts that PWs.4 and 9 in categorical terms admitted that the
identity of the accused who stabbed the deceased was not known.
It is also not in dispute that Ex.P1-Mahazar does not refer to any
light at the scene of the incident that was occurred at about 10.30
p.m. Admittedly, the complaint is made against unknown persons.
According to PW.11, accused Nos.1 and 2 were apprehended on
25.08.2013 and produced before the Investigating Officer at about
9:45 p.m. on the same day and Ex.P9-Report/Statement produced
by PW.11 depicts that they got information about 9.00 p.m., on
that day. But the Investigating Officer stated on oath that on the
same day, the statements of PWs.4 and 9 were recorded and
accused Nos.1 and 2 were apprehended and produced before him at
9.30 a.m. i.e., within 11 hours from the date of incident.
22. The material evidence of the prosecution witnesses
especially evidence of the eye-witnesses-PWs.1, 3, 4, 9 and 10
clearly depicts that the prosecution has failed to establish the
identity of the accused, who stabbed the deceased at about 10.30
p.m. As admitted by PWs.4 and 9 they have not identified accused
persons and not given any information with regard to the
description of the accused persons. In the absence of identity of
the accused, it is inevitable on the part of the prosecution to
conduct Test Identification Parade. Admittedly, in the present case,
the Test Identification Parade was not at all conducted. When no
Test Identification Parade was held, it cannot be said that the
prosecution has established the involvement of the accused in the
homicidal death of the deceased. Merely because the accused
persons were identified before the Court after three years, the
same is impermissible to convict the accused.
23. In the present case, admittedly, the Test Identification
Parade was not conducted by the Investigating Officer and so-called
eye-witnesses-PWs.1, 3, 4, 9 and 10 have also not identified
accused Nos.1 and 3 and the same was admitted in their cross-
examination. The purpose of conducting Test Identification Parade
is to enable the persons who claim to have seen the offender at the
time of occurrence, to identify them from amongst other persons.
The Test Identification Parade in other words tests the veracity of
the eye-witnesses and as to whether the investigation proceeded in
the right direction. In the absence of such Test Identification Parade
and identification of the accused persons as deposed by the eye-
witnesses stated supra, the conviction cannot be recorded. Our
view is fortified by the dictum of the Hon'ble Supreme Court in the
case of Rajesh Alias Sarkari and Another v. State of Haryana,
(2021) 1 SCC 118, wherein, the Hon'ble Apex Court considering
the situation when the accused refused to undergo the Test
Identification Parade and the requirement of conducting such Test
Identification Parade as held in Paragraphs - 43, 43.4 and 43.8,
which reads as under:
"43. The prosecution has submitted that an adverse
inference should be drawn against the appellants for
refusing to submit themselves to a TIP. Before we deal
with the circumstances in which the appellants declined a
TIP, it becomes essential to scrutinise the precedent from
this Court bearing on the subject. A line of precedent of
this Court has dwelt on the purpose of conducting a TIP,
the source of the authority of the investigator to do so, the
manner in which these proceedings should be conducted,
the weight to be ascribed to identification in the course of
a TIP and the circumstances in which an adverse inference
can be drawn against the accused who refuses to undergo
the process. The principles which have emerged from the
precedents of this Court can be summarised as follows:
43.4. A TIP should ordinarily be conducted soon
after the arrest of the accused, so as to preclude a
possibility of the accused being shown to the
witnesses before it is held".
43.8. As a rule of prudence, the court would,
generally speaking, look for corroboration of the
witness' identification of the accused in court, in
the form of earlier identification proceedings. The
rule of prudence is subject to the exception when
the court considers it safe to rely upon the
evidence of a particular witness without such, or
other corroboration".
24. It is also not in dispute that some of the prosecution
witnesses were called to the police station, where accused persons
were in police lock-up and witnesses have given a liberty to identify
the accused persons in the police lock-up. Based on the said source
of information, accused Nos.1 and 3 were identified in the cross-
examination of PWs.4 and 9. They have admitted that at the time of
incident it was 10.30 p.m. and they have not identified the accused
persons and they also admitted that the description of the accused
persons was not given to the police at the time of recording their
statements. There are material contradictions and omissions in the
case of the prosecution. Therefore, impugned judgment of
conviction and order of sentence passed by the trial Court against
accused Nos.1 and 3 cannot be sustained. It is also pertinent to
know that the acquittal order passed by the trial Court against
accused Nos.1 and 3 in respect of offence punishable under Section
392 read with Section 34 of IPC has reached finality. It is well
settled law that the witnesses who identified the accused persons
for the first time in the court without knowing them before or in the
absence of any Test Identification Parade would be valueless or
unreliable. Admittedly, in the present case, it is the case of the
prosecution that eye-witnesses identified the accused only in the
police station and before the court. In the absence of any source or
information about the identity or description about the accused, the
evidence of the alleged eye-witnesses-PWs.1, 3, 4, 9 and 10 is
valueless and unreliable.
25. The Hon'ble Apex Court while considering the
requirement of the Test Identification Parade in the case of
Mohanlal Gangaram Gehani v. State of Maharashtra, (1982)
1 SCC 700 at para - 20 and 25 held as under:
"20. Thus, as Shetty did not know the appellant before the
occurrence and no test identification parade was held to
test his power of identification and he was also shown by
the police before he identified the appellant in court, his
evidence becomes absolutely valueless on the question of
identification. On this ground alone, the appellant is
entitled to be acquitted. It is rather surprising that this
important circumstance escaped the attention of the High
Court while it laid very great stress in criticising the
evidence of Dr. Heena when her evidence was true and
straightforward.
25. The only other evidence against the appellant is that of
PWs 3 and 4. So far as PW 3 is concerned his evidence
also suffers from the same infirmity as that of Shetty. PW
3 (Shaikh) admits at p. 22 of the paper-book that he had
not seen the accused or any of the three accused before
the date of the incident and that he had seen all the three
for the first time at the time of the incident. He further
admits that the names of the accused were given to him
by the police. In these circumstances, therefore, if the
appellant was not known to him before the incident and
was identified for the first time in the court, in the absence
of a test identification parade the evidence of PW 3 was
valueless and could not be relied upon as held by this
Court in V.C. Shukla v. State (Delhi Admn.)2 where 1this
Court made the following observations:(SCC p. 677, para
24)
Moreover, the identification of Tripathi by the
witness for the first time in the court without being
tested by a prior test identification parade was
valueless."
(1980) 3 SCR 500: (1980) 2 SCC 665 :
1980 SCC (Cri) 561 :
26. Even though the learned Additional SPP contended that
there is minor discrepancies with regard to arrest of the accused
persons, but the prosecution proved the recovery of MO.3-knife at
the instance of accused No.1 and MO.4 at the instance of accused
No.2 and that the discrepancy with regard to arrest has to be
ignored, it is relevant to consider the evidence of PW.11, who is
stated on oath that when they were deputed to apprehend the
accused persons on 25.08.2013 along with CWs.20 to 22, he got
the information and the informants identified two persons and
thereafter they apprehended them. The unknown persons i.e.,
Lokesh @ Nepali and Anudeep @ Anu were apprehended at about
9.45 p.m. on 25.08.2013 and produced before the Investigating
officer. Very interestingly, Ex.P9-Report submitted by PW.11 depicts
that himself and the other staffs i.e., PC.9033, PC.8678 and
PC.8979 were appointed by the Investigating Officer to trace out
the accused persons. Accordingly, after collecting information, they
went near playground of Sriranga Vidyanikethana school at about
9.00 p.m. and apprehended accused persons and produced them
before the Investigating Officer at about 9:45 p.m. along with the
report for further action.
27. According to the learned Additional SPP, the accused
persons were arrested and produced before the Investigating
Officer as per Ex.P9. Even assuming that the accused persons were
arrested and produced before the Investigating Officer at 9.45 p.m.
on 25.08.2013, very interestingly the Investigating Officer admitted
in the cross-examination that he is not aware of the identity of
accused No.1 and he has not given any information about identity
of accused No.1 to PW.3, PW.4, PW.11, CWs.20 to 22, but directed
them to apprehend the accused persons and produce before him.
Accordingly, accused Nos.1 and 2 were apprehended by PW.11 and
other staff and produced before him on 25.08.2013 at 9:30 a.m. in
the police station. Thereafter, he conducted personal search of the
accused persons. The evidence of PW.11, Ex.P9-Report submitted
by PW.11 and evidence of PW.17, the Investigating Officer with
regard to the identity of the accused is doubtful. When there are
two views are possible on the evidence adduced, one towards the
guilt of the accused and other towards his innocence, the view
which is favourable to the accused should be adopted as per the
golden rule of the criminal jurisprudence.
28. The materials on record i.e., the evidence of PWs.1, 2,
3, 4, 9 and 10, who are said to be the eye-witnesses to the incident
and the evidence of PW.14-Doctor, PW.11-Head Constable, PW-17-
Investigating Officer clearly depicts that there are so many material
omissions and contradictions in the evidence of the prosecution
witnesses. The entire case of the prosecution appears to be
tainted. When such discrepancy is found which is sufficient to
shake the case made out by the prosecution, it is not safe to
convict the accused.
29. On meticulous reading of the evidence of aforesaid
prosecution witnesses, serious contradictions are noticed and the
witnesses are not worthy of believing. Though learned Additional
SPP submits that PW.4 in categorical terms has stated that either
him or the deceased has not consumed alcohol, the fact remains
that after the dinner, they went to the house is not in dispute and
according to them, some unknown persons quarreled with them. In
the quarrel, two unknown persons caught hold of the deceased and
one unknown person stabbed the deceased. Admittedly, they have
not disclosed the identity of the accused persons at the time of
lodging the complaint or at the time of recording the statements.
They have only identified the accused persons for first time in the
police station and before the court. The identity of the accused
persons by the prosecution witnesses is based on the source of the
police information and admittedly no Test Identification Parade was
conducted. Thereby, they have not established the case of the
prosecution beyond reasonable doubt. The learned Sessions Judge
has not considered these aspects of the matter in proper
prospective. Thereby, erroneously convicted the accused persons.
It is not disputed that the accused persons are languishing in jail for
more than 8½ years.
30. It is also not in dispute that the learned Sessions Judge
while convicting accused Nos.1 and 3 under the provisions of
Section 302 read with Section 34 of IPC, recorded a categorical
finding that it is important to note that at Ex.P8, the IMEI number
of the cell phone is mentioned as 864056010939012 and
864056010939020. However, to corroborate the contention of the
prosecution that the said cell phone at MO.4 belongs to deceased-
Basavaraju, the prosecution has not placed any iota of evidence.
Suffice it to say, evidence of PW.17 discloses that while he seized
MO.4, it was found with its SIM card. However, during cross-
examination, PW.17 categorically admits that MO.4 is now not
found with SIM card. Therefore, without placing any relevant
documentary evidence to hold that the deceased was a registered
customer of MO.4., certainly, it cannot be held that cell phone-MO.4
belonged to the deceased-Basavaraju. Thereby, the prosecution
failed to place any iota of documentary evidence to show that SIM
numbers as well as cell phone belonged to the deceased-
Basavaraju. Thereby, the case of the prosecution that PW.17 has
seized MO.4 under Ex.P8 on the basis of voluntary statement at
Ex.P16, said to have been given by accused No.2 cannot be
believed at all and accordingly learned Sessions Judge recorded a
finding that the prosecution failed to prove beyond reasonable
doubt that deceased collapsed on the ground and accused No.2
robbed his cell phone from his shirt pocket, thereby they committed
an offence punishable under Section 392 read with Section 34 of
IPC. Admittedly, acquitting the accused persons under Section 392
read with Section 34 of IPC is not challenged by the prosecution.
When the recovery of the phone from accused No.2 and ownership
of SIM card and phone belonging to deceased-Basavaraju from the
accused is not proved and identity of the accused persons is not
established either at the time of complaint or before the police
when the statements were recorded, it is clear case that the
prosecution has not proved the guilt of the accused beyond
reasonable doubt and the accused are to be acquitted by extending
the benefit of doubt. Thereby, the judgment of conviction and order
of sentence passed by the trial Court cannot be sustained as this is
only on the basis of presumption and assumption, which is
impermissible under law. Thereby, the learned Sessions Judge was
not justified in convicting accused Nos.1 and 3 for the alleged
offence on the basis of the inconsistent evidence led by the
prosecution. The same cannot be sustained for the reasons stated
above. Accordingly, the above point is held in the 'affirmative',
holding that the appellants- accused Nos.1 and 3 have made out a
case to interfere with the impugned judgment of conviction and
order of sentence passed by the trial Court and to hold that the trial
Court is not justified in convicting accused Nos.1 and 3 for the
offence punishable under Section 302 read with Section 34 of IPC.
31. For the reasons stated above, we pass the following:
ORDER
(i) Criminal Appeal No.1850/2017 filed by accused No.1
and Criminal Appeal No.1578/2017 filed by accused
No.3, are hereby allowed.
(ii) The impugned judgment of conviction and order of
sentence dated 07.04.2017 made in
S.C.No.317/2014 on the file of LXV Additional City
Civil and Sessions Judge, Bengaluru (CCH-66),
convicting and sentencing accused Nos.1 and 3 for
the offence punishable under Section 302 read with
Section 34 of IPC, is hereby set-aside.
(iii) Accused Nos.1 and 3 are hereby acquitted for the
offence punishable under Section 302 read with
Section 34 of IPC.
(iv) The concerned Jail Superintendent is hereby directed
to release accused No.1 forthwith, if he is not
required in any other case.
(v) The bail bond of accused No.3 shall stand cancelled
(vi) The fine amount deposited by accused Nos.1 and 3
(if any) shall be refunded on due identification.
(vii) Operative portion of this judgment shall be
communicated to the concerned Jail Superintendent,
forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
GSS/SMJ
