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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 412 OF 2006

NOORAHAMMAD AND ORS              ………APPELLANTS

Vs.

STATE OF KARNATAKA                ……RESPONDENT

J U D G M E N T

V.GOPALA GOWDA, J. This criminal appeal by special leave is directed

against  the  impugned  judgment  and  order  dated

02.06.2005 passed in Crl. A. No. 184 of 1999(A) by the

High Court of Karnataka at Bangalore whereby partly

allowing the appeal filed by the State, the High Court

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has set aside the acquittal order passed by the Trial

Court and convicted the appellant nos. 1 to 4 for the

offences punishable under Sections 304 part II, 324,

353, 379 and 411 read with Section 34 of Indian Penal

Code,  1860  (for  short  the  “IPC”).  However,  it  has

upheld the acquittal of all the four appellants for the

offence punishable under Section 24(e) of the Karnataka

Forest Act. 2.2. Brief  facts  are  stated  hereunder  to  appreciate  the

rival legal contentions urged on behalf of the parties: The case of the prosecution is that on 27.06.1995,

at around 3.00 am, the informant party, comprising of

about  10  forest  officials  in  a  jeep,  intercepted  a

bullock cart on Yallur-Nitagikoppa Kacha Road. It was

alleged that the appellants herein were present on the

said  cart  and  transporting  stolen  teak  wood  log

clandestinely and illegally, without a pass or permit.

It was further alleged that an altercation ensued and

Papasab (accused-appellant no.3) attacked V.C. Marambid

(PW-8),  Forest  watcher,  with  a  club.  The  aforesaid

attack resulted in a bleeding injury to PW-8. It was

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further alleged that R.L. Patagar (since deceased), RFO

and  G.B.  Nayak  (PW-6),  incharge  R.F.O.  (Plantation

Superintendent) at Hangal tried to catch hold of the

remaining accused, when Noorahammad (accused-appellant

no.1)  picked  up  a  club  from  the  cart  and  hit  R.L.

Patagar on back of the head. It was further alleged

that Allauddin (accused-appellant no.2) also took up a

club  and  beat  R.L.  Patagar.  Further,  Tajusab

(accused-appellant no.4) took up club and beat G.B.

Nayak. Thereafter, all the accused left the teak wood

log and escaped in the bullock cart. 3.3. On 27.06.1995 at around 8.00 am, FIR No. 213 of 1995 in

respect of the incident was lodged at the instance of

one Timmanna (PW-1) at Hangal Police Station which was

recorded  by  Sub  Inspector,  Maruti  Raoji  Shindhe

(PW-19). 4.4. R.L.  Patagar,  who  was  undergoing  treatment  at  KMC

Hospital, Hubli, expired on 28.06.1995 at about 3.00

pm.  5.5. During  the  course  of  investigation  all  the  four

appellants were arrested from their house at Hullatti

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village  and  bullock  cart  and  bullocks  used  in  the

commission of the said offence were also recovered.     

6.6. The trial was conducted by Additional Sessions Judge, Dharwad for the offences punishable under Sections 302,

324, 353, 379 and 411 of IPC read with Section 34 of

IPC  and  Section  24(e)  of  the  Karnataka  Forest  Act.

During trial, in order to prove its case, prosecution

examined 22 witnesses. All the appellants, in their

statement made under Section 313 of the Cr.P.C., denied

all the incriminating circumstances appearing against

them in the prosecution evidence. The Trial Court vide

its judgment and order dated 13.11.1998 acquitted all

the  accused-appellants  from  the  charges  levelled

against them.  7.7. Aggrieved  by  the  decision  of  the  Trial  Court,  the

respondent-State preferred Criminal Appeal No. 184 of

1999(A)  before  the  High  Court  of  Karnataka,  at

Bangalore urging various grounds and prayed for setting

aside the judgment and order of acquittal passed by the

Trial Court.

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8.8. The  High  Court  vide  its  judgment  and  order  dated 02.06.2005 has allowed the appeal in part and convicted

all the accused-appellants for the offences punishable

under Sections 304 part II, 324, 353, 379 and 411 read

with  Section  34  of  IPC.  For  the  offence  punishable

under Section 304 part II of IPC read with Section 34

of IPC, all the four appellants have been sentenced to

undergo rigorous imprisonment for a period of 4 years

each and to pay a fine of Rs. 1,000/- each and in

default  of  fine,  to  undergo  further  rigorous

imprisonment for a period of 2 months each. No separate

sentences  have  been  awarded  for  other  offences.

However,  the  acquittal  of  all  the  appellants  under

Section 24(e) of the Karnataka Forest Act has been left

undisturbed  by  the  High  Court.  Aggrieved  by  the

judgment and order passed by the High Court, all the

four appellants has preferred this appeal praying for

their acquittal.  9.9. Mr. M. Khairati, the learned counsel for the appellants

contended that the High Court has failed to appreciate

that there is nothing on record to establish that R.L.

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Patagar (deceased) died only due to head injury which

was caused by the appellants and therefore, there is no

justification to convict them under Section 304 part II

read with Section 34 of the IPC and sentence them to

undergo rigorous imprisonment for the said offence.  10.10. He submitted that the High Court has failed to apply

the law laid down by this Court while setting aside the

judgment of acquittal passed by the Trial Court. He

placed strong reliance upon the decision of this Court

in  the  case  of  Satvir  Singh  v. State  of  Delhi1,

authored by me, wherein this Court has laid down the

circumstances in which the High Court, as an appellate

court, would reverse an order of acquittal passed by

the trial court. In that case it has been held by this

Court  that  while  the  High  Court  has  full  power  to

review, re-appreciate and reconsider the evidence, upon

which the order of acquittal is founded, but should not

disturb  the  finding  of  the  trial  court  if  two

reasonable conclusions are possible, on the basis of

the  evidence  on  record.  He  further  placed  strong

1  (2014) 13 SCC 143

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reliance upon the decision of this Court in the case of

S. Govindraju v. State of Karnataka2, in which Justice

S.A. Bobde was one of the companion Judge, the relevant

para 20 of which, reads thus: “20. It is a settled legal proposition that in exceptional  circumstances,  the  appellate court,  for  compelling  reasons,  should  not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court’s entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable  and  is  based  on  an  erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal  by  the  court  below  bolsters  such presumption of innocence.”

 11.11.  It was further contended by the learned counsel that a

perusal of the judgment passed by the High Court shows

that  the  High  Court  has  not  recorded  a  finding

regarding the ignorance of any relevant evidence by the

Trial  Court.  Further,  the  High  Court  has  also  not

recorded a finding to the effect that some irrelevant

2  (2013) 15 SCC 315

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evidence has been considered by the Trial Court while

acquitting the appellants. He further submitted that it

is also not found by the High Court that the Trial

Court has proceeded on erroneous understanding of the

law or of the facts of the case. Further, it is also

not  found  that  the  Trial  Court  has  dealt  with  the

evidence in an illegal manner. Hence, the finding of

the High Court that the judgment of the Trial Court is

perverse is an incorrect finding. He placed reliance

upon  the  decision  of  this  Court  in  the  case  of

Sumitomo  Heavy  Industries  Ltd.  v. ONGC  Ltd.3 to

elaborate  upon  the  meaning  of  the  expression

“perverse”. The relevant para 42 relied upon by the

learned counsel reads thus: “42. Can the findings and the award in the present case be described as perverse? This Court  has  already  laid  down  as  to  which finding  would  be  called  perverse.  It  is  a finding which is not only against the weight of  evidence  but  altogether  against  the evidence.  This  Court  has  held  in  Triveni Rubber  &  Plastics v.  CCE that  a  perverse finding is one which is based on no evidence or one that no reasonable person would have arrived  at.  Unless  it  is  found  that  some relevant evidence has not been considered or

3  (2010) 11 SCC 296

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that  certain  inadmissible  material  has  been taken into consideration the finding cannot be said  to  be  perverse.  The  legal  position  in this behalf has been recently reiterated in Arulvelu v. State.”

  12.12. It  was  further  contended  that  the  High  Court  has

incorrectly  relied  upon  the  testimonies  of  eye

witness-G.B. Nayak (PW-6) and V.C. Marambid (PW-8) to

reverse the judgment of acquittal passed by the Trial

Court. It has failed to take note of some inherent

inconsistencies, contradictions and improbabilities in

the evidence which make the testimonies of the said

witnesses  difficult  to  be  believed.  The  learned

counsel,  further,  drew  the  attention  of  this  Court

towards certain circumstances which the High Court has

failed to consider. They are, interalia, as follows:

a)Timmanna (PW-1), at the instance of whom the FIR

was registered, claims to be the eye-witness to

the occurrence. In his evidence, he has claimed

that he knew the name of appellant no.1 i.e.,

Noorahammad at the time of incident. However, he

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has lodged FIR against unknown persons. He has

failed to explain this vital contradiction. b)The appellants were arrested on 05.07.1995 i.e.,

after 8 days from the date of the occurrence,

allegedly  on  the  statement  of  V.C.  Marambid

(PW-8) given to the investigation officer under

Section 161 Cr.P.C. There is considerable doubt

as to the correctness of the said statement as

PW-8  himself  in  his  evidence,  has  disowned  a

part of the same. Therefore, it cannot be said,

beyond any reasonable doubt, that the statement

projected  by  the  prosecution  is  the  statement

which was given by PW-8 naming the appellants. c)In view of the fact that the FIR was registered

against unknown persons and even description of

the  accused  was  not  mentioned,  a  Test

Identification Parade (TIP) ought to have been

conducted so as to inspire confidence about the

identity  of  the  assailants.  However,  the

prosecution has not rendered any explanation as

to  why  said  TIP  was  not  conducted.   In  such

circumstances,  dock  identification  by  the

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witnesses, after 2 years from the incident was

rightly not relied upon by the Trial Court. d)The clubs allegedly used by the appellants to

attack  the  forest  officials  should  have  had

blood  stains  but  the  same  were  not  sent  for

forensic examination.  e)The  appellants  were  alleged  to  be  carrying

valuable teakwood. As per the prosecution story,

after  assaulting  the  prosecution  party,  they

fled away in the bullock-cart after dropping the

teakwood log, which is difficult to believe.   f)According to the prosecution story, there were

8-9 forest officials and they had a jeep with

them. Only a few of them were allegedly attacked

by  the  appellants.  When  the  attackers  were

fleeing away in a bullock cart, the remaining

forest  officials  could  have  chased  and  caught

them in a jeep. g)In normal circumstances, when serious injuries

were caused to forest officers and subsequently

one  of  them  died  the  next  day  and  moreover,

names of the accused-appellants were also made

known  to  the  police  officials  on  29.06.1995,

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there should have been an immediate arrest of

the appellants. The fact that the accused were

arrested from their house 8 days later clearly

shows that prosecution had no inkling about the

involvement  of  the  appellants  and  they  were

subsequently implicated.  h)V.C. Marambid (PW-8) in his examination-in-chief

before the Trial Court has stated that Papasab

accused-appellant no.3 attacked him with  club,

but, further, he clearly stated thus: “at this

point of time, I am unable to identify who that

Papasab is amongst these accused persons”. This

casts a grave doubt on the prosecution story. 13.13. It  was  further  contended  by  the  learned  counsel  by

placing reliance upon the decision of this Court in the

case  of  Sunil  Kumar Shambhudayal  Gupta  v. State  of

Maharashtra4 that the trial court which has the benefit

of watching the demeanour of witness is the best judge

of the credibility of the witness. In the present case,

the Trial Court after considering the demeanour of the

witnesses came to the right conclusion that it would be 4  (2010) 13 SCC 657

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unsafe  to  place  conviction  on  the  testimony  of  the

witnesses and hence, acquitted the appellants. 14.14. Per contra, Mr. V.N. Raghupathy, the learned counsel on

behalf of the respondent-State sought to justify the

impugned judgment and order passed by the High Court on

the ground that the same is well founded and is not

vitiated in law. Therefore, no interference of this

Court  is  required  in  exercise  of  its  appellate

jurisdiction.  15.15. He  contended  that  the  High  Court  has  rightly

appreciated both the documentary and oral evidence on

record in its entirety. The evidence of PW-6 and PW-8

are fully corroborated by the evidence of PW-1, PW-2

and PW-19 in the instant case and therefore, the High

Court has rightly set aside the Trial Court’s decision

and convicted the appellants for the charges levelled

against them. 16.16. It  was  further  contended  that  the  prosecution

witnesses, who were forest officials and at the time of

incident  they  were  equipped  with  torches  has

successfully identified the accused-appellants in the

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court.  He  further  submitted  that  the  circumstances

under  which  the  incident  in  question  had  occurred,

there could be no other witnesses, except the forest

officials themselves, who could have witnessed the said

incident. Hence, the High Court has rightly found these

witnesses credible, reliable and trustworthy. Further,

there appears to be no reason to falsely implicate the

appellants as there was no animus or grudge against

them.   

17.17. Mr. Raghupathy further submitted that the High Court has rightly relied on the evidence of V.C. Marambid

(PW-8) to the extent he has supported the case of the

prosecution,  though  he  partially  turned  hostile.  He

further submitted that it is well settled position of

law that the evidence of a hostile witness is not to be

rejected in totality. He placed strong reliance upon

the decision of this Court in the case of  Rameshbhai

Mohanbhai  Koli  and  Ors.  v. State  of  Gujarat5,  the

relevant para 16 of which reads thus: “16. It is settled legal proposition that the evidence of a prosecution witness cannot be

5  (2011) 11 SCC 111

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rejected  in  toto  merely  because  the prosecution chose to treat him as hostile and cross-examined  him.  The  evidence  of  such witnesses  cannot  be  treated  as  effaced  or washed off the record altogether but the same can  be  accepted  to  the  extent  that  their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of  Haryana,  Rabindra  Kumar  Dey v.  State  of Orissa,  Syad Akbar v.  State of Karnataka and Khujji v. State of M.P.)”

18.18. We have carefully heard both the parties at length and have also given our conscious thought to the material

on  record  and  the  relevant  provisions  of  law.  The

question  for  our  consideration  is  whether  the

prosecution  evidence  establishes  beyond  reasonable

doubt  the  commission  of  the  offences  by  the

accused-appellants  under  Sections  304  part  II,  324,

353, 379 and 411 of IPC read with Section 34 of IPC. 19.19. A careful reading of the evidence on record clearly

highlights  the  material  contradictions  and

discrepancies  in the  prosecution evidence  especially

the testimonies of G.B. Nayak (PW-6), V.C. Marambid

(PW-8) and Timmanna (PW-1). In the instant case, the

written  complaint  about  the  incident  was  made  by

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Timmanna  (PW-1)  on  the  basis  of  which  FIR  was

registered. In the said written complaint, allegations

were made against four unknown persons and not against

the appellants despite the fact that the complainant

knew  the  name  of  the  accused-appellant  no.1  i.e.,

Noorahammad. This factum is clear from the testimony of

the complainant- Timmanna when he deposed before the

Trial  Court  as  PW-1.  The  relevant  portion  of  his

evidence reads thus: “5. In that Complaint, I have not mentioned the  name  of  those  accused  persons.  At  that time, I knew the name of this A-1. But, IO did not know the names of other accused persons. Prior to the incident, I did not know the name of the accused No.1 also. I came to know the names and address of all those accused persons correctly  through  that  V.C.  Marambid. Subsequently,  the  police  have  reached  my further  statement  and  at  that  time,  I  have told the name and address of all these accused persons.”   

The aforesaid loophole in the evidence adduced by the

prosecution has been rightly appreciated by the Trial

Court holding thus:

“11….His  evidence  is  to  the  effect  that  he knew the name of the accused no.1 even at the time  of  the  complaint  as  per  Exh.P-1. According to him, he did not know the names

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and addresses of the culprits and that later on, he came to know the names and addresses of the  other  culprits  through  his  subordinate PW-8 V.C. Marambid a forest officer. It is his evidence that 2 or 3 days later, he came to know the names and addresses of the culprits. Still, he has maintained throughout that he knew the name of the accused no.1 very much at the time of the complaint though he was not aware  of  his  address.  When  that  is  so, certainly  in  his  complaint  at  Exh.  P-1,  he could have disclosed atleast the name of the accused no.1. On the other hand, it is the clear recital in Exh. P-1 that the complainant did not know the names and whereabouts of the culprits.”       

20.20. Further,  V.C.  Marambid  (PW-8)  in  his  evidence  has disclosed  the  fact  that  he  knew  all  the

accused-appellants,  who  were  residents  of  Hullatti

Village, from before the occurrence by virtue of his

duty in Nilgiri plantation at Hassanabadi and Hullatti.

If the aforesaid fact as deposed by him is believed to

be true, then he should have disclosed the identities

of  all  the  accused-appellants  to  the

complainant-Timmanna  (PW-1)  at  the  time  of  the

incident. If not at the time of incident, then the same

should have been disclosed to the police officer at the

earliest possible occasion. In this regard, the view

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taken by the Trial Court is correct as it has assigned

valid and cogent reasons for the same. It has rightly

held thus: “12……An attempt is made by the prosecution to impress  upon  the  court  that  PW-8  Veerappa Channappa  Maranbid  knew  about  these  accused persons  previously.  If  that  was  really  so, what prevented him from disclosing the very names and addresses to the complainant at the earliest occasion? It is the very evidence of the  complainant  as  PW-1  that  PW-8  Veerappa Channappa Maranbid was very much there at the spot at the time of the incident. It may be that PW-8 was hospitalised when the complaint was lodged. As revealed, according to PW-1, he complained to the police in the morning at 7 or  8  a.m.  itself  on  the  very  same  day. But,Exh. P-1 complaint discloses that it was registered at 8 a.m. It has to be seen that Hangal Police Station is not far away from the hospital where the injured were being treated at  that  time.  The  evidence  has  probablised that the said hospital is very close to the said police station. It is not as if PW-8 who according to him, was one of the injured, had gone  unconscious.  As  revealed,  the  injuries sustained  by  him  were  simple  in  nature. Therefore, when he was very much available in the adjoining hospital, the complainant could have  certainly  ascertained  the  names  and addresses of the alleged culprits through PW-8 if  really  PW-8  knew  about  the  names  and addresses of the culprits….”  

 21.21. In  the  instant  case,  TIP  of  the  accused-appellants

should have been carried out at the instance of the

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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 am, 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 accused-appellants 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.

This Court in the case of  Dana Yadav alias Dahu and

Ors.  v. State  of  Bihar6 has  elaborated  upon  the

importance  of  test  identification  parade  in  great

details. The relevant para nos. 6, 7 and 8 read thus:

“6. It is also well settled that failure to hold test identification parade, which should be  held  with  reasonable  dispatch,  does  not

6  (2002) 7 SCC 295

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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 the  cases  of  Kanta  Prashad v.  Delhi  Admn., Vaikuntam Chandrappa, Budhsen, Kanan v. State of Kerala,  Mohanlal Gangaram Gehani v.  State of Maharashtra, Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh, Jaspal Singh v.  State of Punjab,  Raju v.  State of Maharashtra, Ronny, George v. State of Kerala, Rajesh Govind Jagesha,  State of H.P. v.  Lekh Raj and Ramanbhai Naranbhai Patel v. State of Gujarat.

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

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time  in  court  without  there  being  any corroboration  whatsoever  can  form  the  sole basis  for  his  conviction.  In  the  case  of Budhsen it was observed:  

“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  the  case  of  State  of  Maharashtra v. Sukhdev  Singh 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 the case of Ronny 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  the case of Rajesh Govind Jagesha it was laid down that the absence of test identification parade may  not  be  fatal  if  the  accused  is

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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 the case of  State of H.P. v.  Lekh Raj 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 the case of  Ramanbhai Naranbhai Patel it was observed:  

“It, therefore, cannot be held, as tried to be submitted by 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

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and circumstances of each case.” The Court further observed:

“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.”

Another important fact which the High Court has failed

to  appreciate  is  that  the  prosecution  witness

identified  the  accused-appellants  in  court  for  the

first time, during trial, in the year 1997-98 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 accused-appellants 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  accused-appellants  by  the

prosecution witness for the first time after a gap of

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more than 2 years from the date of incident is not

beyond reasonable doubt, the same should be seen with

suspicion.     

22.22. Further, all the accused-appellants were arrested on 05.07.1995  from  their  home  at  Hullatti  village.

Prosecution has failed to explain the delay of 8 days

on the part of the investigating agency to make arrest

of  all  the  accused-appellants,  when  the  incident

occurred  on  27.06.1995  and  allegedly  V.C.  Marambid

(PW-8) in his statement under Section 161 of Cr.P.C.

had already revealed the identity of all the culprits

involved in the incident. Though the prosecution tried

to explain the delay in making arrest by pressing upon

the ground that the accused-appellants were absconding.

But the same was rightly not believed by the Trial

Court. If they were really absconding, then they should

have remained absconding. Their arrest from their home

casts  a  shadow  of  doubt  on  the  prosecution  story

rendering the same to be concocted and dubious. Rather

the aforesaid fact, on the other hand, fortifies the

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plea taken by all the accused-appellants that they have

been falsely implicated in the case.   

23.23. The High Court has further failed to appreciate some other important facts which create reasonable suspicion

and  shadow  of  doubt  in  the  truthfulness  of  the

prosecution story, namely, instead of confronting with

the forest officers, who were on patrolling duty in

jeep,  the  accused-appellants  would  have  tried  to

conceal their presence either by hiding themselves or

by  running  away.  Further,  the  forest  officers,

including the driver of the jeep, were 10 in number and

on the other hand, accused-appellants were 4. It is

difficult to believe that the forest officers made no

frantic efforts to nab the culprits when they allegedly

assaulted them. The forest officers could have easily

apprehended  the  culprits  had  they  tried,  as  they

outnumbered them. Further, it is clear from the record

that  all  the  forest  officers  were  deployed  on

patrolling duty to keep a check on the then increasing

forest offences. It means incident, like in the instant

case,  could  reasonably  be  anticipated.  It  has  been

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rightly appreciated by the Trial Court that under such

circumstances, they should have been armed with weapons

atleast for their own safety. As per record, when the

incident occurred all the forest officers were found to

be  without  weapons.  It  cannot  be  believed  that  the

forest officers on patrolling duty were without any

weapon. In this regard, the High Court has erred in

observing  that  the  Forest  Department  being  poorly

equipped  failed  to  provide  weapons  to  meet  the

situations,  like  in  the  instant  case.  Further,  the

accused-appellants were caught with a teak wood log in

their bullock cart. The prosecution version is that

after the assault, all the accused-appellants ran away

in their bullock cart leaving behind the said wooden

log. It has rightly been observed by the Trial Court

that if the accused-appellants had any intention to

carry away the said wooden log, they would have easily

done  so  as  after  the  alleged  assault,  they  had  no

hurdle, whatsoever, in that regard. Thus, the aforesaid

story  certainly  casts  a  shadow  of  doubt  on  the

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truthfulness of the prosecution case and renders the

same to be unreliable.    

24.24. The reasoning given by the High Court in its judgment and order in itself is contrary. On the one hand, it

has observed that when the accused-appellants started

assaulting the forest officers, none of the officers,

who were unarmed, dared to go near the culprits with a

view  to  catch  them,  thus,  placing  the

accused-appellants  in  a  dominating  position.  On  the

other  hand,  it  has  further  observed  that  the

accused-appellants had dropped the said wooden log to

make their bullock cart light in weight with a view to

move swiftly. This Court finds the aforesaid reasons

assigned by the High Court to be incorrect. Once the

accused-appellants were in a dominating position, none

of  the  forest  officers  could  go  near  them  for  the

purpose  of  nabbing  them.  Thus,  there  can  be  no

justification for leaving behind the said wooden log.

They could have easily carried it away with them, if

they had the intention of doing so. The prosecution has

failed  to  explain  the  reason  behind  the

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accused-appellants not taking away the said wooden log

with them.    

25.25. In the post mortem report of the deceased, the presence of  a  surgical  wound  on  the  left  side  of  the  head,

measuring 13cms long extending vertically upwards from

point  1.5cms  above  and  in  front  of  left  ear,  has

remained  unexplained  by  the  prosecution,  is  another

lacuna in the prosecution story which casts a shadow of

doubt  on  the  same  and  the  benefit  of  which  should

certainly go to the accused-appellants.    

26.26. There  are  many  more  material  contradictions  in  the prosecution evidence which the High Court failed to

notice,  namely,  Kanayya  (PW-5),  Forest  Guard,  an

eye-witness to the incident, in his examination before

the  Trial  Court,  has  stated  that  there  were  some

teakwood logs present on the cart. However, as per the

prosecution story there was one teakwood log discovered

in  the  cart  by  the  forest  officials.  Further,  V.C.

Marambid (PW-8) in his examination before the Trial

Court stated thus: “At that time, one these accused persons very strongly hit on my head with a club and I fell

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down. There was a bleeding injury on my head on account of that blow. Accused Papasab had so bet me with that club. At this point of time, I am unable to identify who that Papasab is amongst these accused persons. I got up and went  to  the  jeep  and  sat  inside  the  jeep. Since I had received a severe blow on my head I did not notice what had happened thereafter. However, myself and G.B.Nayak were taken to Hangal  in  that  jeep  for  treatment.  That G.B.Nayak  had  also  sustained  injury.  On reaching  the  hospital  at  Hangal,  I  came  to know that R.L.Patagar was also assaulted and injured.  I  did  not  know  how  exactly  that T.G.Nayak  and  that  R.L.Patagar  sustained injuries.”

He  did  not  support  the  prosecution  story  and  was

declared a hostile witness. In his cross-examination by

Public Prosecutor he stated thus: “It  is  not  true  to  say  that  I  have  stated before the police that I saw G.B.Nayak being assaulted  by  accused  Tajusab  with  club  and that Patagar is being assaulted by the accused Noorahamed and Allauddin with clubs and that on account of these blows that G.B.Nayak had sustained  bleeding  injury  and  that  Pategar also  sustained  injury  and  that  the  accused persons thereafter dropped that wooden log at that spot and ran away in that cart…”  

27.27. The  High  Court  has  failed  to  appreciate  another important  piece  of  evidence  that  when  the  injuries

sustained by the deceased were more serious in nature

than  the  injuries  sustained  by  other  two  forest

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officers, which were minor in nature, then the deceased

should have been taken to hospital first or atleast

along with other two injured forest officials, who were

taken  to  hospital  in  the  first  instance.  In  this

regard, the Trial Court has rightly observed thus: “It is the evidence of the PW-1,4 and PW-6 that  the  condition  of  Ramakrishna  Lingappa Patagar was more serious than the other two injured  persons  at  the  spot.  But,  it  is strange  that  the  other  two  injured  persons namely,  PW-6  and  PW-8  were  taken  to  the hospital  at  the  first  instance  in  the  jeep leaving that Ramakrishna Lingappa Patagar at the spot. It is the case of the prosecution that after return, that Ramakrishna Lingappa Patagar  was  taken  in  that  jeep,  to  the hospital.”      

28.28. The  recovery  of  bullocks  and  cart  used  by  the accused-appellants  at  the  time  of  incident  is  also

under a cloud of suspicion as the panch witness-PW-11

has turned hostile with regard to the alleged recovery.

Hence, the prosecution evidence in this regard cannot

be relied upon.     

29.29. Thus, for the aforesaid reasons, the evidence adduced by  the  prosecution  to  support  its  version  does  not

prove  beyond  reasonable  doubt  the  offences  levelled

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against all the accused-appellants. This Court in the

case of Raj Kumar Singh v. State of Rajasthan7 has held

thus: “21. Suspicion, however grave it may be, cannot take the place of proof, and there is  a  large  difference  between  something that “may be” proved and “will be proved”. In a criminal trial, suspicion no matter how  strong,  cannot  and  must  not  be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court  has  a  duty  to  ensure  that  mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution,  before  an  accused  is condemned as a convict, and the basic and golden  rule  must  be  applied.  In  such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the  quality  and  credibility  of  the evidence brought on record. The court must ensure  that  miscarriage  of  justice  is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt  must  be  given  to  the  accused,

7  (2013) 5 SCC 722

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keeping in mind that a reasonable doubt is not  an  imaginary,  trivial  or  a  merely probable doubt, but a fair doubt that is based upon reason and common sense.”  

                 (emphasis supplied by this Court)

30.30. In the instant case, the material contradictions in prosecution evidence cast a shadow of doubt upon the

prosecution story and render the same unreliable and

not trustworthy in the eyes of law, which the High

Court has failed to appreciate. Therefore, the impugned

judgment and order passed by the High Court must be set

aside  by  this  Court  in  exercise  of  its  appellate

jurisdiction.

31.31. For the reasons stated supra, this criminal appeal is allowed. The impugned judgment and order passed by the

High Court is set aside. All the accused-appellants are

acquitted of all the charges levelled against them. The

bail bonds shall stand discharged.                          

         …………………………………………………………J.                [V. GOPALA GOWDA]   

                             …………………………………………………………J.

         [S.A. BOBDE] New Delhi, February 2, 2016

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ITEM NO.1B-For Judgment      COURT NO.10               SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  412/2006 NOORAHAMMAD AND ORS                                Appellant(s)                                 VERSUS STATE OF KARNATAKA                                 Respondent(s) Date : 02/02/2016 This appeal was called on for pronouncement of  JUDGMENT today. For Appellant(s)  Mr. Gaurav Agrawal, Adv.

Mr. M. Khairati, Adv.  Ms. Sunita Gautam, Adv.

                    Mr. Irshad Ahmad,Adv.                       For Respondent(s)                      Mr. V. N. Raghupathy,Adv.                      

Hon'ble  Mr.  Justice  V.Gopala  Gowda  pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S.A. Bobde.

The  appeal  is  allowed  in  terms  of  the  signed Non-Reportable  Judgment.  The  impugned  judgment  and order passed by the High Court is set aside. All the accused-appellants  are  acquitted  of  all  the  charges levelled  against  them.  The  bail  bonds  shall  stand discharged.  

  (VINOD KUMAR) COURT MASTER

(CHANDER BALA) COURT MASTER

  (Signed Non-Reportable Judgment is placed on the file)