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2012 DIGILAW 672 (KAR)

Imran @ Karadi Imran v. State of Karnataka

2012-08-14

K.N.KESHAVANARAYANA

body2012
JUDGMENT K.N. KESHAVANARAYANA, J.—This appeal by convicted accused No. 1 in S.C. No. 10/2005 on the file of the Additional Sessions Judge and Fast Track Court, Chitradurga is directed against the judgment of conviction and order of sentence dated 11.8.2005 passed in the said case convicting him for the offence punishable under Section 326 of IPC and sentencing him to undergo rigorous imprisonment for 2½ years and also to pay fine of Rs. 1,000/- for the said offence. 2. The case of the prosecution in brief is as under: P.W. 1 Shivamma had been engaged with the deceased Jayadeva. On 26.10.2003, deceased Jayadeva requested P.W. 1 to meet him at some place in Chitradurga and accordingly P.W. 1 met him. Both of them went to Chitradurga Fort and while they were sitting behind Ekanatheshwari Temple, at about 12.00 noon on that day, one unknown person backed by two others, came there and demanded said Jayadeva to pay money. However, said Jayadeva questioned the unknown person as to why he should pay money to him. By that time, the said unknown person took out knife and stabbed on his stomach and went away. P.W. 1 who was by the side of said Jayadeva screamed for help and with the help of persons who came there shifted Jayadeva to the District Hospital, Chitradurga where he underwent surgery and later shifted to Basaveshwara Hospital. P.W. 1 lodged report about the incident before the Station House Officer, Kote Police Station, Chitradurga as per Ex.P1, based on which, case in Crime No. 164/2003 came to be registered initially for the offence punishable under Section 307 of IPC against three unknown persons and FIR was submitted to the jurisdictional magistrate as per Ex.P12. The injured Jayadeva succumbed to the injuries on 30.10.2003. On receipt of the death memo, the I.O. filed a report to the jurisdictional Court seeking to alter the offence to Section 302 IPC. During the investigation, the I.O. held inquest over the dead body and later dead body was subjected to post mortem examination. The doctor who conducted post mortem examination submitted report as per Ex.P9 opining that death was due to shock and hemorrhage as a result of injury to the vital organ namely lung. 3. The appellant and another were apprehended by Kote Police in connection with case in Crime No. 31/04 on 15.2.2004. The doctor who conducted post mortem examination submitted report as per Ex.P9 opining that death was due to shock and hemorrhage as a result of injury to the vital organ namely lung. 3. The appellant and another were apprehended by Kote Police in connection with case in Crime No. 31/04 on 15.2.2004. During the interrogation of the appellant in the said case, he said to have disclosed his complicity in the incident of assault on the deceased Jayadeva in the fort on 26.10.2003. Pursuant to the said voluntary statement, the knife said to have been used for the commission of the offence was recovered at his instance. In the said case, the appellant was remanded to the judicial custody. Thereafter, a request was sent to the Taluka Executive Magistrate to conduct Test Identification (T.I. for short) parade. An application was also filed before the learned magistrate on 9.3.2003 seeking direction to the Taluka Executive Magistrate to conduct T.I. parade, which came to be allowed. Pursuant to the said direction, the Taluka Executive Magistrate held T.I. parade in the sub-jail on 27.3.2004 in which P.W. 1 participated and identified the appellant as the assailant who stabbed deceased Jayadeva. She also said to have identified another person arraigned as accused No. 2. In respect of T.I. parade Taluka Executive Magistrate submitted his report as per Ex.P10. During the investigation, the I.O. recorded statement of witnesses and after completing investigation laid charge sheet against this appellant and two others for the offence punishable under Section 302 read with 34 of IPC. Before the committal Court, the presence of accused No. 3 could not be secured. Therefore, the case against him was ordered to be split up and case against accused Nos. 1 and 2 was committed to the Sessions Court. The appellant and accused No. 2 appeared before the Sessions Judge and pleaded not guilty for the charge levelled against them and claimed to be tried. To prove the guilt of the accused for the charge, prosecution examined P.Ws. 1 to 21 and relied on documentary evidence marked as Exs.P1 to P16 and also material objects MO’s 1 and 2. During their examination under Section 313 of Cr.P.C. the accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence. 1 to 21 and relied on documentary evidence marked as Exs.P1 to P16 and also material objects MO’s 1 and 2. During their examination under Section 313 of Cr.P.C. the accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implications. After hearing both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has proved the incident of assault on deceased Jayadeva with a knife on 26.10.2003 inside the fort of Chitradurga causing him severe injuries which led to his death. The learned Sessions Judge further held that evidence on record established the complicity of appellant accused No. 1 for the injuries found on the deceased. However, the learned Sessions Judge was of the view that the evidence on record does not establish that the act committed by the appellant would amount to murder punishable under Section 302 of IPC. Therefore, having regard to the nature of the injury inflicted on the deceased as also the weapon used, the learned Sessions Judge held that the act of assault committed by the appellant would fall under the offence punishable under Section 326 of IPC. In that view of the matter, learned Sessions Judge found the appellant guilty of the offence punishable under Section 326 of IPC and convicted him for the same. After hearing the counsel for the accused, the learned Sessions Judge passed the order regarding sentence as noticed supra. Learned Sessions Judge however found no material to establish the complicity of accused No. 2 with the commission of the offence. Therefore, accused No. 2 was acquitted for the charge levelled against him. Being aggrieved by the said judgment of conviction and order of sentence appellant No. 1 is before this Court with this appeal. 4. I have heard the learned counsel for the appellant as well as the learned Government Pleader for the respondent-State. 5. Therefore, accused No. 2 was acquitted for the charge levelled against him. Being aggrieved by the said judgment of conviction and order of sentence appellant No. 1 is before this Court with this appeal. 4. I have heard the learned counsel for the appellant as well as the learned Government Pleader for the respondent-State. 5. Learned counsel for the appellant contended that judgment under appeal suffers from perversity and illegality in as much as the learned Sessions Judge has failed to notice that the complicity of the appellant for the acts alleged has not been satisfactorily established, therefore, the judgment is liable to be set-aside. He further contended that though the evidence on record establishes that deceased Jayadeva received some injuries inside the fort on 26.10.2003, to which he later died, there is no acceptable evidence to establish the complicity of the appellant for the said act, as such the learned Sessions Judge is not justified in holding the appellant guilty for the offence punishable under Section 326 of IPC. He further contended that the identification of the appellant as assailant in the T.I. parade said to have been conducted is of no value in the eye of law having regard to the several legal infirmities with regard to the conduct of T.I. parade. The legal infirmities pointed out by the learned counsel in this regard are: (1) Though the appellant was arrested on 15.2.2004, the alleged T.I. parade has been conducted nearly about six weeks after his arrest, as such there is undue delay in conducting T.I. parade. (2) From the evidence of P.W. 1 itself it is clear that immediately after the arrest of the appellant he was shown to her in the police station, as such, the identification of the appellant in the T.I. parade said to have been conducted subsequently has lost its evidentiary value if any. (3) The T.I. parade conducted nearly six months after the occurrence of the incident, has lost its credibility having regard to the fact that even according to P.W. 1 incident occurred within a minute or two, during which period, P.W. 1 had hardly any time to have a clear view of the assailant and to create the image of the assailant in her mind and the image if any created in the mind of P.W. 1 would have vanished within a short period thereafter. Therefore, the conduct of T.I. parade after lapse of about six months of the occurrence has rendered, the result of the T.I. parade, unreliable. 6. Learned counsel further contended that if the circumstances of identification of the appellant in T.I. parade is eschewed from consideration, the identification of the appellant as the assailant before the Court by P.W. 1 does not get any corroboration as such, the dock identification before the Court nearly about 2 years after the incident cannot be the sole basis to hold the appellant guilty of the offence for which he has been convicted. Therefore, the learned counsel sought for setting-aside the judgment under appeal and for acquittal of the appellant. 7. On the other hand, learned Government Pleader sought to justify the judgment under appeal contending that the judgment under appeal does not suffer from any perversity or illegality as the learned Sessions Judge on proper appreciation of oral and documentary evidence has recorded findings which are sound and reasonable regard had being to the evidence on record, therefore, the judgment under appeal does not warrant interference by this Court. He further contended that there is absolutely no evidence on record to indicate that P.W. 1 had an opportunity to see the accused-appellant before the conduct of T.I. parade, therefore, T.I. parade conducted within a reasonable time after his arrest, cannot be discarded on the ground of delay. He contended that the appellant who was arrested in connection with some other case was found to be involved in this case pursuant to the voluntary statement and thereafter I.O. sought direction from the jurisdictional Court to the Taluka Executive Magistrate to conduct T.I. parade, therefore, having regard to the facts and circumstances of the case, there has been no delay in conducting the T.I. parade. He further contended that the evidence of P.W. 1 and P.W. 13 the Taluk Executive Magistrate clearly establishes that T.I. parade was conducted on 23.7.2004, in which the appellant was identified by P.W. 1 as the assailant who inflicted the injury to the deceased. He further contended that having regard to the totality of the evidence on record, the learned sessions judge is justified in finding the appellant guilty of offence punishable under Section 326 of IPC, as such, the judgment does not call for interference by this Court. Therefore, he sought for dismissal of the appeal. 8. He further contended that having regard to the totality of the evidence on record, the learned sessions judge is justified in finding the appellant guilty of offence punishable under Section 326 of IPC, as such, the judgment does not call for interference by this Court. Therefore, he sought for dismissal of the appeal. 8. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for my consideration are: (a) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?” (b) Whether the learned Sessions Judge is justified in convicting the appellant for the offence punishable under Section 326 of IPC? If so, whether the sentence ordered by the Court below is just and proper? 9. I have bestowed my anxious considerations to the submissions made on both sides. I have perused the records secured from the Trial Court. 10. As noticed supra, in respect of the incident of assault on deceased Jayadeva, criminal law was set on motion by P.W. 1 in the form of lodging report at 3.30 p.m. on 26.10.2003 as per the Ex.P1. As could be seen from FIR Ex.P12 the same was received by the jurisdictional magistrate at 12.00 noon on 27.10.2003. The incident of assault said to have occurred at about 12.00 noon inside the fort at Chitradurga and immediately after the incident, the injured was bought to the hospital with the help of the people who gathered there and while P.W. 1 was in the hospital attending to the injured, PSI, Kote Police Station, Chitradurga, on intimation received from the hospital, came to the hospital and received the complaint from P.W. 1. Therefore, I find no delay either in lodging the FIR or FIR reaching the jurisdictional magistrate. 11. Even according to the complainant the assailant was unknown and stranger to her as well as to the injured. According to the medical evidence, when the injured was brought to the hospital, he was restless and was not in a position to speak and ultimately died on 30.10.2003. There is some indication in the evidence of the witnesses that in the meanwhile the injured was in a position to speak, nevertheless, his statement was not recorded. According to the medical evidence, when the injured was brought to the hospital, he was restless and was not in a position to speak and ultimately died on 30.10.2003. There is some indication in the evidence of the witnesses that in the meanwhile the injured was in a position to speak, nevertheless, his statement was not recorded. Having regard to the fact that assailant was unknown to P.W. 1 and also to the injured, in my opinion, non-recording of statement of the injured has not in any way rendered the case of the prosecution suspicious. As per the contents of at Ex.P1, the complainant was the only eyewitness to the incident. In Ex.P1 certain description about the assailant had been furnished. Nevertheless, since the assailant was a stranger and had not been named in the complaint, initially the case came to be registered against unknown persons. According to the prosecution, the complicity of this appellant for commission of the offence in this case was revealed only after the arrest of the appellant on 15.2.2004 in connection with some other case by Kote police. Till 15.2.2004, the identity of the assailant was not known to the I.O. P.W. 1 who is the sole eyewitness to the incident, in her evidence has reiterated the contents of the Ex.P1 with regard to the incident of assault on Jayadeva. The evidence of P.W. 1 would clearly establish that while she and deceased Jayadeva were talking behind Ekanatheshwari Temple, an unknown person came and demanded Jayadeva to pay money and since money demanded was not paid, the assailant stabbed Jayadeva with a knife on the stomach. The medical evidence on record clearly establish that the injured was brought to the hospital at about 12.45 p.m. on 26.10.2003 and at that time he was found having stab injury and immediately he was subjected to surgery and later he was shifted to the Basaveshwara hospital where he succumbed to the said injuries. Therefore, the evidence on record clearly establish that Jayadeva sustained grievous injury on his stomach and later he succumbed to the said injury. As noticed supra, learned Sessions Judge was of the view that the prosecution has not established that the acts alleged attracts the offence punishable under Section 302 of IPC. Therefore, the accused were acquitted for the charge under Section 302 read with 34 IPC. As noticed supra, learned Sessions Judge was of the view that the prosecution has not established that the acts alleged attracts the offence punishable under Section 302 of IPC. Therefore, the accused were acquitted for the charge under Section 302 read with 34 IPC. The next question would be whether the complicity of the appellant, as held by the learned Sessions Judge, is established. As noticed supra, the assailant who inflicted injuries to the deceased was a stranger. Therefore, the identity of the assailant was said to have been established only during the T.I. parade held on 27.3.2004. It is fairly well-settled that the T.I. Parade is not substantive evidence, but it is only a corroborative piece of evidence. The substantive evidence is the evidence before the Court. However, the evidence with regard to the dock identification of the accused before the Court requires to be corroborated by earlier identification if the assailant is stranger and unknown to the witness. If there is no proper identification prior to the dock identification before the Court, it is well settled that such evidence is a weak piece of evidence and such evidence cannot be the sole basis to hold the accused guilty of the offence alleged. 12. In the case of Siddanki Ram Reddy vs. State of Andhra Pradesh, reported in (2010) 7 SCC 697 , the Apex Court has held that the substantive evidence should be sufficiently corroborated by a T.I. parade held soon after the occurrence and any delay in holding T.I. parade may be held to be fatal to the case of prosecution. 13. In the case of Sukhbir Singh vs. State of Panjab, reported in (2011) 11 SCC 436 , the Apex Court has held that though there is no inflexible rule that identification made for the first time in the Court has to be always ruled out of consideration, but the broad principle is that in the absence of no other evidence against accused, identification in Court made after the event is clearly not acceptable. 14. 14. In the case of Daya Singh vs. State of Haryana, reported in AIR 2001 SC 1188 , which has been reiterated in Siddanki Ram Reddy vs. State of Andhra Pradesh referred to supra, the Apex Court has held that the purpose of test identification is to have corroboration to the evidence of the eye witnesses in the form of earlier identification and that the substantive evidence of a witness is the evidence in the Court and if that evidence is found to be reliable then the absence of corroboration by test identification would in any way immaterial. 15. In the case of Subash and Shiv Shankar vs. State of U.P., reported in (1987) 3 SCC 331 , the Apex Court having regarding the fact that the T.I. parade has been held three weeks after the arrest of the accused persons has observed that the T.I. parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the T.I. parade, therefore, there is room for doubt as to whether the delay in holding the T.I. parade was in order to enable the identifying witness to see him in the police lock-up or in the jail premises and make a note of his features. In the said decision the Apex Court has also considered the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witness had seen the assailant for a few minutes and the date of T.I. parade. After referring to the decisions of the Apex Court in the case of Muthuswami vs. State of Madras, reported in AIR 1954 Cri. L.J. 236 and in the case of Mohd. Abdul Hafeez vs. State of A.P., reported in AIR 1983 SC 367 , the Apex Court held that where an identification parade was held about 2½ months after the occurrence it would not be safe to place reliance on such identification of the accused by the eye-witness and where the witnesses had not given any description of the accused in the first information report, their identification at the Sessions trial cannot be safely accepted by the Court for awarding conviction to the accused. 16. In the case of State of Andhra Pradesh vs. Dr. 16. In the case of State of Andhra Pradesh vs. Dr. M.V. Ramana Reddy, reported in AIR 1991 SC 1938 , it has been held by the Apex Court that where there is unexplained delay in holding the T.I. parade, the evidence of the prosecution regarding the identity of an accused cannot be held absolutely unreliable and in such a case, the accused is entitled to the benefit of doubt. 17. In Rajesh Govind Jagesha vs. State of Maharashtra, reported in 2000 Crl.L.J. 380, the Apex Court has held that in cases where a person is alleged to have committed the offence and is not previously known to the witnesses, it is obligatory on the part of the investigating agency to hold T.I. parade for the purpose of enabling the witnesses to identify the person alleged to have committed the offence. It is further observed that the test identification is considered as a safe rule of prudence for corroboration and though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for the corroboration purposes in order to believe or not the involvement of the persons brought before the Court for the commission of the crime and holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled position of law and expeditiously and delay, if any, has to be explained satisfactorily by the prosecution. 18. Thus, from the above decisions, the principles that emerge are; (1) though holding of identification parade is not a substantive evidence, in cases where the assailant/s is/are strangers and unknown to the witnesses, their substantive evidence before the Court regarding identification requires to be corroborated by an earlier identification and this is a rule of prudence, (2) Such T.I. parade should be held at the earliest without there being any delay and if there is any delay in conducting such T.I. parade, it has to be satisfactorily explained by the prosecution and (3) the witnesses should not have been given an opportunity to see the accused after their arrest and the identification parade conducted should inspire the confidence of the Court. 19. 19. In the light of the above principles and having regard to the evidence placed on record in this case, I am of the opinion that the T.I. parade said to have been conducted in this case has lost its evidentiary value for more than one reason as such, the substantive evidence of P.W. 1 before the Court with regard to the identity of the appellant as assailant has not been corroborated. Therefore, the sole testimony of P.W. 1 before the Court cannot be the basis to record conviction against the appellant for the offence punishable under Section 326 of IPC. 20. As noticed supra, even according to P.W. 1 the assailant responsible for the injury suffered by the deceased Jayadeva was stranger and unknown to her. Therefore, the conduct of T.I. parade was obligatory on the part of the investigating agency. The incident said to have occurred on 26.10.2003. Even according to the investigating officer, the appellant was arrested on 15.2.2004 in connection with some other case registered in the same police station and during interrogation, the appellant said to have disclosed the complicity of the other accused persons in the commission of the offence involved in this case. Even according to the prosecution, the T.I. parade was conducted on 27.3.2004 i.e., nearly about six weeks after the arrest of the accused and about five months after the occurrence. According to P.W. 19-Mahanthareddy, the Investigating Officer, he sought for permission from the Court on 24.2.2004 to conduct test identification parade. However, from the evidence of P.W. 21-B.S. Ravishankar Naik, on 22.3.2004 he sent a requisition to Taluka Executive Magistrate to conduct T.I. parade. P.W. 13-K.Gurumurthy, Taluka Executive Magistrate in his evidence has stated that on 9.3.2004 and on 11.3.2004 the Additional Civil Judge, JMFC had directed him to conduct T.I. parade and accordingly, he conducted T.I. on 27.3.2003. However, in the report submitted as per Ex.P.10, the Taluka Executive Magistrate said to have conducted the T.I. parade pursuant to the request made by the Circle Inspector through his letter dated 24.2.2004. 21. However, in the report submitted as per Ex.P.10, the Taluka Executive Magistrate said to have conducted the T.I. parade pursuant to the request made by the Circle Inspector through his letter dated 24.2.2004. 21. As could be seen from the records of the Committal Court, an application seeking direction to the Taluka Executive Magistrate to conduct T.I. parade was filed before the Jurisdictional Magistrate on 9.3.2004 and on the same day, the learned Magistrate passed an order directing the Taluka Executive Magistrate to conduct the T.I. parade after intimating the date of the identification parade to the investigating officer. Thus, there is no consistency with regard to the date on which the Taluka Executive Magistrate was requested or directed to conduct the T.I. parade. There is also no consistency as to pursuant to which the direction or request the T.I. parade was conducted. At any rate, there is no explanation as to why for about six weeks after the arrest of the appellant the T.I. parade was not conducted. From the narration made by P.W. 1 in the complaint, the incident of assault occurred in a duration of about one minute. Though in the cross-examination, P.W. 1 has stated that she had seen the assailants earlier to the date of the incident, her statement in the complaint-Ex.P.1 clearly indicate that the assailant was stranger and unknown to her. Within that short period in which the incident occurred, it is highly difficult to believe that P.W. 1 had opportunity to see the face of the assailants and create his image in her mind. Assuming that P.W. 1 was able to see the assailants clearly and create his image in her mind, it is highly difficult to believe that she would have retained the said image for nearly six months so as to identify the assailant in the T.I. parade conducted later. 22. In the cross-examination of P.W. 1, she has stated that after the arrest of the accused, they were shown to her in the police station and there she had identified one of the accused. Answers elicited in this regard reads as under: (vernacular matter not given) 23. Above answer elicited from P.W. 1 indicates that after the arrest of the appellant on 15.2.2004, P.W. 1 had an opportunity to see him in the police lock-up. 24. Answers elicited in this regard reads as under: (vernacular matter not given) 23. Above answer elicited from P.W. 1 indicates that after the arrest of the appellant on 15.2.2004, P.W. 1 had an opportunity to see him in the police lock-up. 24. Perusal of the Committal records further indicates that immediately after the arrest of the appellant in connection with Crime No. 31/2004 registered for the offences punishable under Sections 380 and 457 of IPC, the police had published the photograph of all the arrested accused persons and also the information that those arrested persons are also involved in the murder of Jayadeva on 26.10.2003. Thus, P.W. 1, who is the sole eye-witness had all the opportunity to see the appellant immediately after his arrest while he was in the police custody. Above two circumstances, in my opinion, has affected the evidentiary value of the T.I. parade. No doubt, evidence of P.W. 13 read with the oral evidence of P.W. 1 indicates that the T.I. parade was conducted in the jail at Chitradurga on 27.3.2004 wherein P.W. 1 identified the appellant as assailant. However, having regard to the fact that P.W. 1-the sole eye witness had an opportunity to see the appellant while he was in the police custody and since the T.I. parade has been conducted after about five months from the date of the occurrence and about six weeks after the arrest of the appellant, the test identification parade has lost its evidentiary value, as such, no significance can be attached to the same. In view of the above, the result of T.I. parade cannot have any corroborative effect to the evidence of P.W. 1. Thus, the evidence of P.W. 1 before the Court regarding dock identification of the appellant as assailant has remained un-corroborative. Having regard to the facts and circumstances of the case, the uncorroborated sole testimony of P.W. 1 with regard to the complicity of the appellant for the commission of the offence cannot be the sole basis to hold him guilty. The learned Sessions Judge, in my opinion, has totally failed to take into consideration all these factors before holding that the identity of the appellant as assailant is established. 25. The learned Sessions Judge, in my opinion, has totally failed to take into consideration all these factors before holding that the identity of the appellant as assailant is established. 25. Learned Sessions Judge has not properly considered the various circumstances brought out on record which has rendered the conduct of the T.I. parade doubtful and its evidentiary value having been lost on account of P.W. 1 having seen the appellant before conduct of T.I. parade. Therefore, findings recorded by the trial Court regarding the complicity of the appellant in the commission of the offence are perverse and illegal. The judgment under appeal suffers from legal infirmity on account of non-consideration of the various circumstances brought out on record regarding the evidentiary value of the T.I. parade. Having regard to the facts and circumstances of the case, I am of the considered opinion that the prosecution has failed to establish the complicity of the appellant for the commission of the offence and therefore, the learned Sessions Judge is not justified in convicting the appellant for the offence punishable under Section 326 of IPC. 26. In view of the above discussions, I am of the opinion that the appellant is entitled to the benefit of doubt and thereby for an order of acquittal. 27. In view of the above, the appeal is allowed. (i) The judgment of conviction and order of sentence dated 11.8.2005 passed by the Additional Sessions Judge and Fast Track Court, Chitradurga, in S.C. No. 10/2005 convicting the appellant for the offence punishable under Section 326 of IPC is hereby set aside; (ii) The appellant is acquitted of the said charge. The bail bond and surety bond executed by the appellant are ordered to be discharged (iii) The fine amount, if any, paid by the accused is ordered to be refunded to him.