SIMON v. State of Karnataka — 2003 DIGILAW 1632 (SC)

ORDER 1. These appeals have been filed under Section 19 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (for short "the Act") against the judgment and order dated 29-9-2001 passed by the Special Judge of Designated Court at Mysore in Special Cases Nos. 63 of 1994, 13 of 1997 and 20 of 1998 convicting the appellants under various provisions. The appellants are two in number. Appellant 1 Simon was Accused 10 and Appellant 2 Veeraswami was Accused 18 before the trial court. 2. The first information report was recorded on 20-5-1992 on the statement of PW 31, an Assistant Sub-Inspector of Rampura Police Station. As per the FIR, on the intervening night of 19-5-1992/20-5-1992, while PW 31 and other police officials were present in the police station, thirty people mostly belonging to the Veerappan gang surrounded the police station at about 1.00 a.m. They were holding guns and all of a sudden opened fire in front of the police station. 3. The police officials returned fire from the window situated in the upper portion of the wall. The police personnel named in the FIR who were sleeping in the verandah outside died as a result of firing by the Veerappan gang and thereafter the culprits fled away from the spot. They also, after breaking the latch of the back door of the police station took away six country-made guns that had been seized by the police and kept in the storeroom. The FIR further records that the crime was committed by: (1) Veerappan, (2) Arjuna, (3) Mariyappan, (4) Kolandai, (5) Velli @ Sunda, (6) Shekara, (7) Govinda, (8) Kumara and many others. It further records that the two injured were sent to the hospital for treatment. 4. The case in relation to the aforesaid incident was filed against 157 persons. The arrested and prosecuted were, however, 77 in number. The only two accused that have been convicted are the appellants. The remaining accuseds have been acquitted. 5. The prosecution to prove its case has examined various witnesses. Three witnesses, namely, PW 31, PW 55 and PW 36 were in the police station when the incident took place. PW 30 was in the verandah of the police station and was one of the injured witnesses named in the FIR having been sent for treatment to the hospital after injury. The other injured witness was not examined. Three witnesses, namely, PW 31, PW 55 and PW 36 were in the police station when the incident took place. PW 30 was in the verandah of the police station and was one of the injured witnesses named in the FIR having been sent for treatment to the hospital after injury. The other injured witness was not examined. PW 32 was in the van standing in the precincts of the police station. PW 33, PW 34 and PW 35 are not from the Police Department. PW 33 has an electric shop, PW 34 was a hotlier and PW 35 has a theatre. Across the road and opposite the police station are 11 quarters where the police officials reside. According to the prosecution evidence, some of the witnesses were in the quarters at the time of the incident and came out of the quarters on hearing the firing shots. They are PW 37, PW 38, PW 53 and PW 56 to PW 58. PW 72 is the investigating officer. 6. The learned Special Judge of the Designated Court, relying on the evidence of PW 37, PW 53 and PW 57 has come to the conclusion that the two appellants were members of the Veerappan gang and they took part in firing that took place at the police station resulting in killing of 5 police personnel beside injury to two personnel. The learned Judge has thus held the two appellants guilty of offence under Sections 3, 4 and 5 of TADA Act, Sections 143, 120-B, 148, 307 and 302 read with Section 149 IPC and Section 25 of the Indian Arms Act. They have been directed to undergo rigorous imprisonment for life for offence punishable under Section 3(2)(i) of TADA Act and pay a fine of Rs 2000 each and, in default, to undergo rigorous imprisonment for six months. Life imprisonment and fine has also been inflicted for offence under Section 302 read with Section 149 IPC. For other offences lesser punishments have been inflicted. 7. We have heard learned counsel for the appellants and the State and have perused the record, in particular, the statements of PW 31 to PW 38, PW 53, PW 55 to PW 58 and PW 72 and the site plan. As already noticed, the trial court has based the conviction on the testimony of PW 37, PW 53 and PW 57. As already noticed, the trial court has based the conviction on the testimony of PW 37, PW 53 and PW 57. There were 53 confessions that were relied upon by the prosecution. Admittedly, no confession was made by the two appellants with whom we are concerned. All the other confessions, except one, were rejected by the trial court itself. 8. It is not in dispute that the test identification parade was not held. The names of the two appellants were also not mentioned in the first information report. The prosecution has examined as many as 14 eyewitnesses. None of them has identified the first appellant Simon (Accused 10). The only evidence against the first appellant is that Veerappan was shouting the name of Simon and directing him to shoot towards the police station. None has deposed that Accused 10 was that "Simon". PW 36, who was in the police station, has deposed that a person resembling Veerappan was commanding by uttering the names Arjuna, Kolandai, Sunda, Shekara and Mani to fire. The witness has deposed that he could identify the persons he had seen at the time of the incident but did not identify either of the two appellants. PW 37, another police official, who was in the quarters has deposed that a person with big moustache standing below the tree was giving instructions and telling Arjuna, Ayyandorai, Simon and Doreswamy to shoot and he was giving them directions. We would assume that the witness was referring to Veerappan giving instructions to the persons named. It can also be assumed that the witness has deposed to have heard the names of the appellants having been uttered by Veerappan. It may, however, be noticed that the witness had concealed himself behind the quarters when the firing was going on. It also appears from the evidence that the quarters where the witnesses were residing were about 220 ft away from the place of occurrence. There is a road between the police station and the quarters. The witness though had deposed to have seen the culprits firing but has not identified any accused even in Court. The depositions of the witnesses were recorded nearly 9 years after the incident. As already noticed, no test identification parade was held. There is no explanation on record for the non-holding of the test identification parade. The witness though had deposed to have seen the culprits firing but has not identified any accused even in Court. The depositions of the witnesses were recorded nearly 9 years after the incident. As already noticed, no test identification parade was held. There is no explanation on record for the non-holding of the test identification parade. It may also be noticed that according to PW 37 there was no ventilator in the police station. According to the evidence of the police officials as also the FIR, the door of the police station had been closed after the Veerappan gang commenced firing. Further, it may be noticed that PW 37 has deposed that there may be hundreds of persons around Rampura village with similar names as addressed by Veerappan. In any case, the witness has not deposed that any of the two appellants were present at the scene of occurrence. The question is not only about the incident having taken place and the Veerappan gang being involved in the incident. The question is whether the appellants as members of the said gang or otherwise were part of the group or gang that opened fire on the police station resulting in various deaths. The fact of Veerappan uttering certain names would be of some consequence only if the appellant can be connected with the crime. PW 38 deposed that all the persons who had come out of the quarters did not attempt to go near the police station. The testimony of PW 31 to PW 38 does not connect the appellants with the crime. 9. Reverting now to the testimony of PW 53 Shivanna, who was working as a jeep driver in the jeep attached to Rampura Police Station, it deserves to be noticed that he was one of the persons who was in the police quarters above-referred, and has deposed to have come out on hearing the sound of a gunshots and having proceeded towards the police station. Like other witnesses he had also deposed that Veerappan was shouting certain names and one of the names he had mentioned was that of Appellant 2 Veeraswamy. It has been further deposed that when he proceeded towards Veerappan, his gang started firing at him and, therefore, he returned towards his quarters and had hidden himself. Like other witnesses he had also deposed that Veerappan was shouting certain names and one of the names he had mentioned was that of Appellant 2 Veeraswamy. It has been further deposed that when he proceeded towards Veerappan, his gang started firing at him and, therefore, he returned towards his quarters and had hidden himself. The statement of the other police officials residing in the quarters is that all had hidden themselves and came out after the cessation of firing. PW 53, however, deposed that appellant Veeraswamy was one of those whom he saw in the gang of Veerappan. It is only on this statement, it is evident, that the conviction of the second appellant has been based. Insofar as the first appellant is concerned, none has deposed to have seen him. In regard to the deposition of PW 53 having seen the second appellant being a member of the Veerappan gang, there are various deficiencies and contradictions which make it evident that the claim of the witness of having seen the second appellant cannot be trusted and relied upon. Veeraswamy, the second appellant was not known to PW 53 prior to the incident. If the witness is to be believed, he saw the said appellant for a while on the intervening night of 19-5-1992 and 20-5-1992 and thereafter in Court on 12-2-2001. The witness has deposed that he returned towards the quarters and hid himself when the gang started firing at him. He has further deposed that neither the fathers name nor the village of the accused was known to him. He did not know the particulars of the said accused. The statement that he made to the police was on the next day of the incident. When confronted with the said statement, he denied the same and stated that he had not given the name of the father of the accused Veeraswamy to the police. The said statement, Ext. D-3, however, contains the fathers name of the accused Veeraswamy. He has, however, deposed that he did not tell the police officials that one culprit was calling another culprit as Veeraswamy. Strangely, the witness has deposed to have seen the way the accuseds combing of hair, which seems wholly improbable, having regard to the nature of incident. D-3, however, contains the fathers name of the accused Veeraswamy. He has, however, deposed that he did not tell the police officials that one culprit was calling another culprit as Veeraswamy. Strangely, the witness has deposed to have seen the way the accuseds combing of hair, which seems wholly improbable, having regard to the nature of incident. Even if we accept the deposition of PW 53 despite numerable contradictions, at best it was a fleeting glimpse at midnight and that too about nine years back despite the witness having admitted that if one stands behind the quarters, he cannot see the persons in front of the police station. 10. Further, the learned Special Judge of the Designated Court has committed serious illegality by coming to the conclusion that PW 53 has not been cross-examined by counsel of the appellant Veeraswamy. It does not appear to be factually correct. Be that as it may, the question is not whether the witness has been cross-examined by the counsel of the said accused or some other accused. The question is whether the testimony of the witness insofar as he claims to have seen Veeraswamy has been demolished or not. The testimony of PW 53 stood fully demolished insofar as it states that Accused 18 was seen by him. 11. PW 55 is another police official who has also deposed that he was unable to identify any of the persons whom he had seen on the date of the incidence. PW 55 was in the close proximity being in the police station as compared to those who were in the police quarters. Similarly, PW 56, another police official who was in the quarters and who had come out, could not identify any of the appellants. 12. Reverting now to the testimony of PW 57 on whom the learned trial court has relied to convict the appellants, it would only suffice to state that the witness had deposed that he could not identify the accused persons and was declared hostile and had denied the suggestion that he was intentionally not identifying the accused out of fear. 13. The net effect of the aforesaid discussion is that as far as the first appellant Simon is concerned, there is no evidence whatsoever that he was one of the gang members which had opened fire on the police station. 13. The net effect of the aforesaid discussion is that as far as the first appellant Simon is concerned, there is no evidence whatsoever that he was one of the gang members which had opened fire on the police station. The mere fact that Veerappan was shouting the name of one Simon is of no consequence till it is established that the reference was to the appellant. No witness has identified the appellant Simon. Insofar as the second appellant Veeraswamy is concerned, the only witness who identified him is PW 53. No other witness, though the prosecution produced as many as 14 eyewitnesses, identified him. The sole testimony of PW 53 for the aforesaid discussion is not trustworthy and reliable. There is no evidence whatsoever to sustain the conviction of the appellants. 14. For the reasons aforesaid, we set aside the impugned judgment and acquit the appellants giving them benefit of doubt and, accordingly, allow the appeals. The appellants shall be set free forthwith, if not required in any other case. Crt. As. Nos. 849-51 of 2003 15. In view of the decision in Criminal Appeals Nos. 430-32 of 2002 and Criminal Appeals Nos. 247-49 of 2003, these appeals are dismissed.