Karnataka High Court

Ramu @ Munjya Bhosale @ vs The State Of Karnataka on 2 February, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

                                             -1-
                                                    NC: 2024:KHC-D:2409
                                                    CRL.A No. 100032 of 2015




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                           DATED THIS THE 2ND DAY OF FEBRUARY, 2024

                                           BEFORE
                          THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
                            CRIMINAL APPEAL NO. 100032 OF 2015 (C)
                   BETWEEN:

                   1.    RAMU @ MUNJYA BHOSALE @ PAWAR
                         @ MARATHI @ RAJAPADRI
                         @ LAMANI @ HAKKIPAKKI,
                         AGE: 25 YEARS, OCC: COOLIE,
                         R/O: BUTNAL TANDA,
                         DIST: BIJAPUR.

                   2.  SHIVARAJ GUJARAT BHOSALE
                       @ PAWAR @ MARATHI @ RAJAPADRI @ LAMANI
                       @ HAKKIPAKKI,
                       AGE: 20 YEARS, OCC: COOLIE, R/O: BUTNAL TANDA,
                       DIST: BIJAPUR.
                                                                ...APPELLANTS
                   (BY SRI VASANT G. HOLEYANNAVAR, ADVOCATE)

Digitally signed   AND:
by SUJATA
SUBHASH
PAMMAR             THE STATE OF KARNATAKA
Date:              R/P BY SPP,
2024.02.13         HIGH COURT KARNATAKA,
17:27:14 +0530
                   DHARWAD BENCH,
                   (CPI HUNGUND POLICE STATION, HUNGUND)
                                                               ...RESPONDENT
                   (BY SRI RANGASWAMY R, HCGP)

                        THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
                   SEEKING TO SET ASIDE THE CONVICTION AND SENTENCE ORDER
                   DATED 31.12.2014 PASSED BY THE DIST. & SESSIONS JUDGE,
                   BAGALKOT    IN    S.C.NO.57/2012    AND     ACQUIT  THE
                   APPELLANTS/ACCUSED NO.1 TO 2 FOR THE CHARGES FRAMED
                   AGAINST THEM U/S 341, 394 R/W 397 & 75 OF IPC.
                            -2-
                                 NC: 2024:KHC-D:2409
                                 CRL.A No. 100032 of 2015




    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal under Section 374(2) of the Cr.P.C. is

filed by accused Nos.1 and 2 challenging the Judgment

and order of conviction and sentence dated 31.12.2014

passed by the Court of District and Sessions Judge,

Bagalkot in Sessions Case No.57/2012, wherein the

appellants/accused Nos.1 and 2 have been convicted for

the offences punishable under Sections 341 and 177 read

with Section 34 of IPC and Section 394 read with Section

397 of IPC.

2. Heard the learned counsel for the parties.

3. It is the case of prosecution that on 10.11.2011

at about 8.15 p.m., near the land of one Tuppad situated

within the limits of Hungund Police Station, Bagalkot

District, in furtherance of their common intention accused

had wrongfully restrained complainant-Mahantesh (PW-1)

and his friend Shekharagouda (PW-3) who were traveling

in Bajaj Discover motorcycle bearing No.KA-29/R-1307

NC: 2024:KHC-D:2409

and by showing a knife robbed a sum of Rs.5,000/- from

the complainant and a sum of Rs.310/- and a Micromax

mobile handset from PW.3 and had also assaulted them

causing hurt and thereafter had escaped from the spot.

4. During the course of investigation, accused

Nos.1 and 2 were arrested. Accused No.3 was absconding.

Investigation in the case was completed and charge sheet

was filed against accused Nos.1 to 3 and accused No.3

was shown as absconding in the charge sheet. The

committal Court split up the case against accused No.3

and committed the case insofar as it relates to accused

Nos.1 and 2. After committal, a case was registered in

Sessions Case No.57/2012 and since accused Nos.1 and 2

pleaded not guilty and claimed to be tried before the Trial

Court, the prosecution in support of its case had examined

15 witnesses as P.W.1 to P.W.15 and also got marked 19

documents as Ex.P.1 to Ex.P.19. Ten material objects were

got marked as M.O.1 to M.O.10. After recording the

statement of accused under Section 313 of Cr.P.C., the

Trial Court had adjourned the case for recording evidence

NC: 2024:KHC-D:2409

on behalf of defence. However, no defence evidence was

led.

5. The trial Court after hearing the arguments

addressed by both sides vide the impugned Judgment and

order, convicted the accused Nos.1 and 2 for the offences

punishable under Sections 341 and 177 read with Section

34 of IPC and Section 394 read with Section 397 of IPC

and sentenced them to undergo simple imprisonment for a

period of 07 years and to pay fine of Rs.5,000/- each and

in default, to undergo simple imprisonment for a period of

two months for the offence punishable under Section 394

and 397 of IPC and for the offence punishable under

Section 341 of IPC accused were sentenced to undergo

simple imprisonment for a period of one month and for the

offence punishable under Section 177 of IPC the accused

were sentenced to undergo simple imprisonment for a

period of two months. Being aggrieved by the said

Judgment and order of conviction and sentence, accused

Nos.1 and 2 are before this Court.

NC: 2024:KHC-D:2409

6. Learned counsel for the appellants submits that

the Trial Court has erred in convicting the appellants. He

submits that P.W.1 and 3 have clearly stated that the

Police had shown the accused to them in the Police Station

before conducting test identification parade and therefore

there is no proper identification of the accused in the

present case. In addition there is a delay in holding the

test identification parade. The prosecution has failed to

prove the alleged charges against the accused beyond

reasonable doubt. Therefore, the Trial Court was not

justified in convicting them. In support of his arguments

he has placed reliance on the judgment of this Court in the

case of Chandrappa, S/o. Hanumantappa Kolar vs.

The State of Karnataka reported in 2015(2) AKR

274.

7. Per contra, the learned HCGP has argued in

support of the impugned Judgment and order of conviction

and sentence. He submits that after the accused were

arrested, the weapon used by them for committing offence

has been seized and there is also recovery of cash amount

NC: 2024:KHC-D:2409

from them. PW1 and PW3 have stated that they have

clearly seen the face of accused in the moon light on the

date of incident and thereafter, they also have identified

them in test identification parade as well as in the Court

and therefore, the trial Court was justified in convicting

the appellants.

8. He submits that mere delay in conducting the

test identification parade cannot be a ground to disbelieve

the prosecution evidence and in support of his argument

he has placed reliance on the judgment of Hon'ble

Supreme Court in the case of Pramod Mandal Vs State

of Bihar reported in (2004) 13 SCC 150.

9. The prosecution in order to prove its case,

against accused beyond reasonable doubt, had examined

15 witnesses as PW1 to PW15. PW1 is the complainant in

the present case. He was allegedly traveling with PW3 on

the date of the incident in his two wheeler. During the

course of cross-examination of this witness has stated that

after the accused were arrested by the Police, he had

visited the Police Station and seen the accused. He has

NC: 2024:KHC-D:2409

also stated that he does not know the date on which the

Police had arrested the accused. He has further stated that

he is not in a position to say which of the accused had

robed money from him. He also has said that the test

identification parade was held in the District prison and he

had identified the accused in the said test identification

parade.

10. PW.2 is panch witness to spot mahazar Ex.P2.

PW.3 is the person who was along with PW.1 on the date

of incident. Even this witness has stated that the

Tahsildar and Hungund police had taken him to the

Hungund police station about two months after the

incident and had shown 10 accused to him and on the said

date, he had identified the accused. During the course of

his cross examination, he has stated that he is not in a

position to state that which of accused had robbed the

money and mobile from him. He has also stated that he is

not in a position to say which colour dress the accused

were wearing on the date of incident.

NC: 2024:KHC-D:2409

11. PW.4 and PW.5 are panch witnesses to Ex.P.5

which is the Mahazar under which the vehicle belonging to

PW.1 and PW.3 which was allegedly taken by the accused

was seized. Undisputedly, the said vehicle was seized

from a public place. PW.4 has turned hostile to the case of

the prosecution. PW.6 is the Tahsildar who had conducted

the test identification parade. The report submitted by him

is marked as Ex.P.8. This witness during the course of

cross examination has admitted that he had not issued

any notice to the panchas of ExP.8. PW.7 is the panch to

the seizure of the bag which was found with accused No.1

on the date of their arrest. The said seizure mahazar is

marked as Ex.P.6. PW.8 is the post man, he has been

examined to verify the correctness of the address of

accused nos.1 and 2. PW.9 is the police constable who

has spoken about Ex.P.11 report. PW.10 is the Doctor

who had examined PW.1 and PW.3 who were injured in

the incident in question. Exs.P.12 and P.13 are the wound

certificates of PW.1 and PW.3 respectively. PW.11 and 12

are the panch witnesses to Ex.P.14. Both these witnesses

NC: 2024:KHC-D:2409

have turned hostile to the case of the prosecution. PW13

is the police constable who speaks about he visiting the

village of accused nos.1 and 2 to verify the correctness of

the address given by them and the report submitted by

him is marked as Ex.P.15. PW.14 is another police

constable and PW.15 is the investigation officer who has

conducted the investigation and filed the charge sheet in

the present case.

12. It is not in dispute that accused nos.1 and 2

were strangers to PW1 and PW.3 and therefore,

identification of these accused by the said witnesses

becomes very crucial in the present case. PW.1 and PW.3

have categorically stated before Court during the course of

their deposition that the accused were shown to them in

the police station by the Police prior to the identification

parade that was held in the district prison. The Coordinate

Bench of this Court in the case of Chandrappa, S/o.

Hanumantappa Kolar vs. The State of Karnataka at

par no.31 has observed as follows:-

- 10 -

NC: 2024:KHC-D:2409

"31. The identification parade conducted by the Tahasildar in my opinion, cannot be a substantive piece of evidence, so far as this case is concerned it is farce. It is for the name sake only for the purpose of conducting identification parade, as on idle formality they have conducted and to produce some evidence before the Court. It is shown by the presentation itself that two months prior to the test identification parade, accused Nos.2 to 8 were shown to the witnesses in the Police Station and the test identification parade conducted thereafterwords, in my opinion, the identification parade loses all its sanctity.

In the case of Ravi Alias Ravichandran v. State represented by inspector of police reported in (2007) 15 SCC 372 in para 19, the Hon'ble Supreme Court has held as follows:

"19. In a case of this nature, it was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification.

13. In the present case undisputedly accused were

shown to the witnesses PW1 and PW3 by the police much

prior to conducting of the test identification parade by

Tahsildar and therefore, identification of the accused by

- 11 -

NC: 2024:KHC-D:2409

PW1 and PW3 in the test identification parade which was

held after about 36 days from the date of arrest and about

three months from the date of incident looses relevancy.

14. In the case of Md. Sajjad alias Raju Alias

Salim v. State of West Bengal reported in (2017) 11

SCC 150, the Hon'ble Supreme Court in para 19 has

observed as follows:-

"19. In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simpliciter cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant."

15. Even in the present case, the incident in

question had taken place in the night. Though the witness

have stated that they have seen the face of the accused in

- 12 -

NC: 2024:KHC-D:2409

the moon light, the fact that they have not given the

features of the accused to the police during the course of

investigation for the purpose of identification of this

accused, makes it difficult for the Court to place reliance

on the identification of accused made by PW1 and PW3.

16. In the case of Lal Singh and others v. State

of U.P reported in (2003) 12 SCC 554 in para Nos.28

and 43, the Hon'ble Supreme Court has observed as

follows:-.

"28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and- fast rule can be laid down. The court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the court must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade.

- 13 -

NC: 2024:KHC-D:2409

This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case.

43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest-possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety."

- 14 -

NC: 2024:KHC-D:2409

17. Even in the present case, except identification

of the accused, there is no other incriminating material

against accused to connect them to the crime. There is no

looted article which belongs to the victim which could have

connected the accused to the crime in the present case,

only cash has been recovered in the present case from the

accused.

18. There cannot be any dispute that delay in

holding the test identification parade alone cannot be a

ground for acquitting the accused. The facts and

circumstances of the case and the evidence on record

needs to be appreciated along with the delay to hold test

identification parade and the Courts are therefore required

to decide whether reliance can be placed on the test

identification parade report. In the present case, it

appears the accused were shown to the witnesses in the

police station much prior to holding test identification

parade and therefore, the test identification parade held

thereafter looses relevance. Though there is no hard and

fast rule that the test identification parade is required to

- 15 -

NC: 2024:KHC-D:2409

held within the time frame, but it is desirable to hold the

test identification parade at the earliest so as to avoid any

chance of the witnesses seeing the accused prior to

holding the test identification parade.

19. The judgment in the case of Pramod Mandal

Vs State of Bihar on which reliance has been placed by

the leraned HCGP would not be applicable to the facts and

circumstances of the present case. In the said case

accused were not shown to the witnesses prior to holding

test identification parade. It is trite that judgment can be

relied as precedents only if it is applicable to the facts and

circumstances of the case. In the present case, since the

material on record would go to show that accused were

shown to the witnesses prior to conducting of test

identification parade, no reliance can be placed on the test

identification parade report. In addition to the same,

there is no recovery from the accused which would directly

connect them to the crime in question. From the

appreciation of over all evidence available on record, it is

seen that the prosecution has failed to prove the guilt of

- 16 -

NC: 2024:KHC-D:2409

the accused beyond reasonable doubt in the present case.

Therefore, I am of the view that the trial Court was not

justified in convicting the accused for the offences charged

against them. Accordingly, the following:

ORDER

The appeal is allowed.

The judgment and order of conviction and sentence

dated 31.12.2014 passed by the Court of District and

Sessions Judge, Bagalkot in Sessions Case No.57/2012 is

set aside.