SUBHASH KRISHNAN Vs STATE OF GOA
Bench: SWATANTER KUMAR,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001089-001089 / 2010
Diary number: 12025 / 2010
Advocates: GAURAV AGRAWAL Vs
T. MAHIPAL
Page 1
Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1089 OF 2010
Subhash Krishnan ….Appellant
VERSUS
State of Goa .…Respondent WITH
CRIMINAL APPEAL NO. 1224 OF 2012 (ARISING OUT OF SLP (CRL) 3966/2010)
Subhash Krishnan ….Appellant
VERSUS
State of Goa .…Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted in SLP (Crl) 3966 of 2010.
2. These appeals have been preferred by the second
accused. Though, in all eight persons were accused of the
alleged offences, records reveal that accused Nos. 7 and 8 were
absconding even at the time of filing of the charge sheet and
hence as many as six accused persons were charge-sheeted for
1
Page 2
the offences under Section 120B read with Section 302, IPC,
Sections 342, 364, 504 read with Section 34, IPC for the alleged
abduction, wrongful confinement and killing the deceased
Shanu Komarpant on 10.10.2003. Accused No.5 and A-6 were
acquitted by the trial Court giving benefit of doubt while A-1 to
A-4 were acquitted of charges under Section 342, 504 and 364
read with Section 34 IPC. The accused Nos.1 to 4 were,
however, convicted for offences under Sections 120B, 302 read
with Section 34, IPC and were imposed with the sentence of life
imprisonment apart from a fine of Rs.5,000/-each, in default to
undergo further three months rigorous imprisonment. Accused
Nos.1 to 4 preferred individual appeals being Criminal Appeal
Nos.7/2007, 12/2007 and 13/2007. The appeal preferred by
the second accused was Criminal Appeal No.13/2007. The
State preferred Appeal No.6 of 2008 against the acquittal of
charges under Sections 342, 504 and 364 read with Section 34
IPC and the total acquittal of A-5 and A-6. All appeals were
tried together and by a common judgment impugned in these
appeals, the High Court dismissed the appeal filed by the
accused and the State appeal being Criminal Appeal No.6/2008
was partly allowed, where under, the accused Nos.1 to 4 were
also convicted for offences under Sections 342 and 364 read
with Section 34, IPC. The High Court held that the conviction
2
Page 3
of the said accused would, therefore, be for all the offences
including offences under Sections 342, 364 read with Section
34, IPC. At the outset, it has to be mentioned that as against
the common judgment of the High Court, appeal was stated to
have been preferred by A-3. However, it was dismissed at the
stage of preliminary hearing. The review preferred by A-3 in
Review Petition (Crl) No.115 of 2011 was also dismissed on
09.03.2011.
3. According to the case of the prosecution, on
10.10.2003, the accused 1 to 6 went to the garage of Shanu
Komarpant (hereinafter called ‘the deceased’) in a white colour
Maruti van and enquired about his whereabouts. The friend of
the deceased by name Alex Viegas who was present at that time
in the auto garage noticed the belligerent behaviour of the
accused persons, and informed about the same to his cousin,
the complainant-Avelino Viegas (PW-2) and proceeded to the
house of the deceased, that there they met the deceased and
informed him about the anxious enquiries made by the accused
about his whereabouts. It is stated that the deceased himself
wanted to straightaway go and meet the first accused with a
view to arrive at some settlement relating to an issue relating to
a love affair and in that view the deceased along with PW-2 and
3
Page 4
Alex Viegas went to the place of occurrence in two motor cycles
one driven by PW-2 along with the deceased and the other
hired by Alex Viegas and that after reaching the place of
occurrence when the deceased asked A-1 as to for what
purpose he was searching for him, the accused persons stated
to have assaulted the deceased with knife, sword and bamboo
stick (danda) and gave kick blows by hand in the middle of the
road viewed by persons standing nearby. It is further stated
that PW-2 was held by A-1 from extending any help to the
deceased and save him from the assault by the other accused
while Alex Viegas stated to have been directed by PW-2 to fetch
other people for saving the deceased from the severe onslaught
meted out to him. The said assault stated to have taken place
at 4.30 p.m. on 10.10.2003 on the road at Galjibagh in the
vicinity of Saint Anthony High School within the limits of
Canacona police station of South Goa District.
4. After the severe assault on the deceased, it is stated
that A-2 brought a white colour Maruti van to the spot in
which the deceased was stated to have been placed in the dicky
and the van proceeded towards Talpona side. Based on a
telephonic information about the above incident recorded by
PW-35 and at his instance, the crime was stated to have been
4
Page 5
registered which was subsequently registered based on the
complaint of PW-2 for offences under Sections 302,342,504,364
and 120B, IPC read with 34 IPC in Crime No. 32/2003. Based
on the information received, the registration number of the
Maruti van in which the deceased was carried, the police stated
to have alerted the check post and that the Maruti van was
intercepted at Assolna around 5.45 pm to 6 pm on the same
day when accused A-1 was found driving the vehicle with the
other accused persons in the van in which the knife, sword,
bamboo stick (danda) and a right foot chappal with blood stains
were recovered. Shailesh Gadekar (A-4) had an injury on his
forehead who was sent to Primary Health Centre, Bali along
with A-5 and A-6 and that from there he was shifted to
Hospicio Hospital of Margao. All of them were subsequently
arrested by the police.
5. At the instance of A-1, the body of the deceased was
discovered in the morning of 11.10.2003 which was found
hanging to the branch of a cashew tree in an isolated place
along side the road at village Onshi. The blood stained clothes
of the deceased and his left foot chappal with blood stains were
stated to have been recovered along with his belongings, as well
as, the nylon rope with which the body was found hanging.
5
Page 6
After holding the inquest on the body of the victim the body
was stated to have been sent for postmortem. PW-9 was the
postmortem doctor who noted the injuries on the deceased
numbering 36. PW-15 examined A-4 for the injuries sustained
by him and issued the certificate about the nature of the
injuries found on him.
6. The prosecution examined 35 witnesses. The FSL
report relating to the blood stains found on the various articles
seized revealed the blood group of the deceased as ‘A’.
7. When the accused were questioned under Section 313
Cr.P.C. A-4 stated that 4 to 5 persons and two other motor
cyclists assaulted him with a sword when he was waiting at a
bus stop at Canacona at 4.30 p.m. on 10.10.2003, that
pursuant to the said assault he fell unconscious on the spot
and thereafter regained consciousness only at the hospital at
Margao. A-3, A-5 and A-6 stated that they went to see A-4 in
the hospital on the evening of 10.10.2003 where they were
stated to have been taken into custody by the police. A-1 and
A-2 made total denial of the offence in their questioning under
Section 313, Cr.P.C. As stated earlier, the trial Court acquitted
A-5 and 6 and convicted A-1 to A-4 for offences under Sections
302 and 120B read with Section 34, IPC and acquitted them for
6
Page 7
the offences under Sections 342, 504 and 364 read with
Section 34 IPC.
8. Assailing the judgment of the High Court as well as of
the trial Court, Mr. Jaspal Singh, learned senior counsel made
elaborate submissions. The sum and substance of the
submissions of the learned senior counsel were as under:-
a) Exhibit 96, complaint of PW-2 was not proved;
b) PW-2 having not offered himself for cross examination,
his evidence in chief was of no value and the High
Court rightly ignored the evidence of PW-2.
c) Though there was a specific overt act alleged against
the appellant with the aid of talwar Exhibit 12, the
medical evidence to the effect that there was no cut
injury on the body of the deceased go to show that the
appellant had nothing to do with the killing of the
deceased.
d) The name of the appellant was not mentioned in
Exhibit 96.
e) The appellant was a total stranger. The appellant’s
case should have, therefore, been equated to that of A-
5 and A-6 and he should have been acquitted on that
basis.
7
Page 8
f) The test identification parade was not held immediately
after the occurrence apart from the fact that the
procedure in holding the test identification parade was
not duly followed. The identification of the appellant
by PWs-14 and 33 should not have, therefore, been
relied upon.
g) According to PW-35, the Investigating Officer, the place
from where the eye witnesses stated to have seen the
occurrence, namely, Marina store was admittedly 70
metres away from the place of occurrence and,
therefore, the eye witnesses could not have seen the
participation of the accused, in particular the
appellant, in the crime.
h) There was total repugnancy in the ocular vis-a-vis the
medical evidence as regards the use of the weapon,
having regard to the nature of injuries found on the
body of the deceased. Even according to the eye
witnesses, the occurrence took place only for 4-5
minutes and from a distance of 70 metres, the eye
witnesses could not have noted the persons with any
certainty in order to identify them with regard to
specific part played by them.
8
Page 9
i) In the test identification parade, identical persons were
not kept and that a wrong procedure was followed in
the holding of test identification parade.
j) There were improvements in the statements of the eye
witnesses as compared to the statement found in
Section 161 Cr.P.C.
k) PW-23 referred to the bleeding injuries on A-2 in
definite terms, whereas according to PW-9 as well as
PW-15, no injury was found on A-2 and the only
accused on whom knife injury was found was A-4.
Therefore, the presence of the appellant and his
involvement in the crime was not made out.
Learned counsel relied upon the reported decisions of this
Court in Mohanlal Gangaram Gehani v. State of
Maharashtra - 1982 (1) SCC 700, Manzoor v. State of Uttar
Pradesh - 1982 (2) SCC 72, Raju @ Rajendra v. State of
Maharashtra - 1998 (1) SCC 169, Kanan & Ors. v. State Of
Kerala - 1979 (3) SCC 319 in support of his submission as
regards the infirmities in holding the Test Identification Parade
(TIP). Learned counsel also relied upon the decisions reported
in Ganga Prasad v. State of U.P.- 1987 (2) SCC 232, Balaka
9
Page 10
Singh & Ors. v. The State of Punjab - 1975 (4) SCC 511,
State of Uttar Pradesh v. Abdul Karim & Ors. - 2007 (13)
SCC 569 and Animireddy Venkata Ramana & Ors. v.
Public Prosecutor, High Court of Andhra Pradesh - 2008 (5)
SCC 368.
9. As against the above submissions, learned counsel
appearing for the State submitted as under:-
a) that the test identification parade was held in
accordance with law;
b) that PWs-14 and 33 who participated in the
test identification parade stated that they had
never seen A-2 or his photograph immediately
before the holding of the TIP.
c) When the appellant raised objection at the
time of holding of TIP and wanted to change
his shirt, PW-30 who held the TIP allowed the
appellant to change his shirt and thereby
whatever objection he had was also duly set
right.
d) The appellant and other accused never cross
examined the witnesses about any
shortcoming in the holding of the TIP and,
1
Page 11
therefore, they cannot now be heard to
complain about the procedure followed in the
holding of TIP.
e) PW-14 who was one of the witnesses, who
identified the appellant in the TIP also made it
clear that she had earlier seen him in her
village though she did not know his name.
f) As far as the distance factor was concerned,
learned counsel submitted that PW-35
clarified that the witnesses viewed the
occurrence from the entrance of Marina stores
and, therefore, they had a clear view of what
was taking place when the assailants were
assaulting the deceased.
g) Apart from the identification of the appellant
by PWs-14 and 33 in the test identification
parade, the other witnesses, namely, PWs-16,
23, 26, 27 and 34 identified the appellant in
the Court and thereby corroborated the
version of Pws-14 and 33.
h) The evidence of PW-21, the owner of Maruti
van who made a categorical statement that it
was the appellant who took his Maruti van
1
Page 12
which was later on found to have been used in
the crime for which he applied for the return
of the vehicle.
i) The evidence of PW-25 who was a worker in
the garage also proved the presence of the
appellant in the Maruti van earlier in the day
when the accused persons went to the garage
of the deceased enquiring about the
whereabouts of the deceased.
j) The subsequent interception of the said
Maruti van by the police PWs-13 and 18 and
the presence of the appellant along with other
accused and their subsequent arrest support
the case of the prosecution.
k) The evidence of post mortem doctor PW-9
about the nature of injuries, namely, injury
Nos. 2 to 36 except injury Nos. 21, 22, 23, 32,
33, 34 which according to PW-9 could have
been caused by Exhibit 12 from its blunt side
and that the said injuries collectively could
have caused the death of the deceased.
l) The evidence of PW-16 as well as other
witnesses, namely, PWs-14, 33, 23 and 27 in
1
Page 13
having made specific reference to the red
colour shirt worn by the appellant while
indulging in the crime was never disputed.
m) The said witnesses specifically attributed the
over act played by the appellant. The medical
evidence, therefore, was in tune with the
ocular evidence.
n) The evidence of PWs-14, 33, 16 and 23 in
having specifically referred to the removal of
the deceased in the Maruti van and the
subsequent recovery of the body of the
deceased at the instance of A-1 on the next
day when the body was found hanging on a
Cashew tree in village Onshi established the
offence of abduction and the killing of the
deceased as per Sections 342, 362, 364 read
with 34, IPC.
o) The FSL report confirmed the presence of
blood group ‘A’ belonging to the deceased in
the red shirt worn by the appellant while the
blood group of the appellant was ‘O+’.
p) The version of PW-35 was truthful when he
stated about the telephonic message was
1
Page 14
received by him about the ongoing assault on
a person at Galjibagh in the vicinity of Saint
Anthony High School and the subsequent
complaint Exhibit 96 received by him on the
basis of which he commenced the
investigation which resulted in the filing of the
final report against the accused.
Learned counsel appearing for the State relied upon the
decision of this Court reported in Sayed Darain Ahsan alias
Darain v. State of West Bengal & Anr. - 2012 (4) SCC 352,
Dana Yadav alias Dahu & Ors. v. State of Bihar- 2002 (7)
SCC 295, Sidhartha Vashisht alias Manu Sharma v. State
(NCT of Delhi) - 2010 (6) SCC 1, Pramod Mandal v. State of
Bihar - 2004 (13) SCC 150, Pravin v. State of Madhya
Pradesh - 2008 (16) SCC 166, Ashok Kumar v. State (Delhi
Administration) - 1995 Suppl.(3) SCC 626, Satish Narayan
Sawant v. State of Goa - 2009 (17) SCC 724 in support of
his submissions.
10. Having heard learned counsel for the appellant as well
as learned counsel for the State and having perused the
judgment impugned as well as that of the trial Court and the
1
Page 15
other material papers, at the outset we wish to deal with the
submission regarding the registration of the FIR and the alleged
shortcomings. According to learned counsel, the author of the
complaint-Exhibit 96 having abstained from offering himself for
cross examination the said document ceased to have any effect.
Learned senior counsel would, therefore, contend that once
Exhibit 96 and the evidence of PW-2 goes out of picture and
since he was not named in the FIR, there was no possibility of
implicating the appellant to the offence alleged against him.
According to him if Exhibit 96, the complaint cease to exist
what remained was the prior telephonic information received by
PW-35, based on which the appellant could not have been
convicted.
11. When we examine the said submission, it is true that
PW-2, the author of the complaint did not offer himself for
cross examination. The High Court in paragraph 37 made
extensive reference to the circumstances namely, the non-
availability of PW-2 who was in abroad at the relevant point of
time, when his cross examination was fixed and that no fault
can be found with the prosecution since in spite of its best
efforts, the witness could not be produced. The High Court
also noted that the trial Court, therefore, had no option than to
1
Page 16
ignore his evidence. The High Court then rightly pointed out
that the whole purpose of the complaint was to ignite the
investigation, that PW-35, the investigating officer after receipt
of the complaint Exhibit 96 set the law in motion, sent the
record of the complaint to Canacona Magistrate on the morning
of 11.10.2003 itself apart from the commencement of the
investigation based on the telephonic message regarding the
ongoing assault at Galjibagh without reference to either the
victim or the accused involved in the assault. We fully agree
with the approach of the trial Court as confirmed by the High
Court in proceeding with the case of the prosecution, ignoring
the evidence of PW-2 while at the same time the factum of the
nature of offence alleged in the complaint Exhibit -96 as
proceeded with by the prosecution deserved to be considered in
accordance with law.
12. As rightly pointed out by the Courts below, apart from
PW-2 who was the author of the complaint and also eye
witness, there were nine other witnesses in the case who fully
supported the case of the prosecution. Those witnesses were
cross examined in detail on behalf of the accused. In the above
stated background when the law was set in motion by PW-35,
the Investigating Officer who initially received a telephonic
1
Page 17
message regarding the occurrence allegedly from the local MLA
about a serious crime taking place at Galjibagh in which
somebody was being assaulted, PW-35 stated to have sent his
staff who brought PW-2 to the police station through whom
Exhibit 96 came to be received and crime No.32/2003 was
subsequently registered for offences under Section 302, 342,
504, 364, 120B read with Section 34, IPC. Closely followed by
the said act it is in evidence that police in the District was
alerted which resulted in PW-13 and 18 apprehending the
accused along with the Maruti van bearing registration No.GA
02J-7230 along with the weapons used. Therefore, taking the
totality of the above facts, it will be futile on the part of the
appellant to contend that PW-2 did not offer himself for cross
examination and, therefore, the whole genesis of the case
should be thrown out of board. In the said background, the
submission of the learned counsel about the non-reference of
the name of the appellant in Exhibit 96 pales into insignificance
especially, when the complicity of the appellant in the
commission of the crime was otherwise fully established by the
prosecution. Therefore, the claim that the case of the appellant
should be equated to that of A-5 and A-6 does not merit any
consideration. Consequently, the submission of the learned
counsel based on the failure of PW-2 in offering himself for
1
Page 18
cross examination and non-mentioning of the name of the
appellant in Exhibit 96 also stands rejected.
13. In this respect the reliance placed upon by the learned
counsel for the State on the decision of this Court reported in
Satish Narayan Sawant v. State of Goa - 2009 (17) SCC
724 can be usefully referred to. In paragraph 22 to 27, this
Court while dealing with such a situation has noted that the
Court will not become helpless. Inasmuch as any crime alleged
is against the society, it is the bounden duty of the Court to
find out the truthfulness or otherwise of the prosecution case
allegedly based on initial information received and the steps
taken in furtherance of its investigation for acceptance or
otherwise of such information in order to determine the further
course of action to be taken to unearth the details of the crime,
the persons involved in the crime and ultimately ensure that
the guilt are brought to book. In that respect in our view, there
is every responsibility in the police as a law enforcing
machinery and as savior of the society from the unlawful
elements indulging in crimes, take necessary steps based on
the information collected by it in the first instance and set the
law in motion and proceed with its action as prescribed under
the provisions of law. When the case of the prosecution is
1
Page 19
brought to Court by placing all the materials, it is for the Court
to examine the action taken by the investigating machinery in
the anvil of the law in force and on being satisfied with the
correctness of the procedure followed can proceed to find the
proof of guilt and pass its judgment. In other words, the Courts
should examine and find out whether the story of the
prosecution as projected before the Court trying the offence
merits acceptance.
14. This Court has noted with approval the earliest case
reported in State of Uttar Pradesh v. Bhagwant Kishore
Joshi - AIR 1964 SC 221 wherein while explaining what is
investigation which is not defined in the Code of criminal
Procedure, the Court placed reliance upon an earlier decision of
this Court reported in H.N. Rishbud & Anr. v. State of Delhi
- AIR 1955 SC 196, in which it was held that the investigation
consisted of five steps, namely, proceeding to the spot,
ascertainment of facts and circumstances of the case, discovery
and arrest of the suspected offender, collection of evidence
relating to the commission of the offence which may consist of
examination of various persons including the accused reducing
them into writing, proceed with the search of places or seizure
of things considered necessary for the investigation to be
1
Page 20
produced at the time of trial and formation of the opinion as to
whether on the material collected there is a case to place the
accused before a Magistrate for trial and, thereafter, taking
necessary steps for the said purpose by filing the charge sheet
under Section 173.
15. In that case, according to PW-1 the investigation officer
received information about the death of a person through PSI of
another police station without any details as to how the
incident happened and as to the cause of the incident and with
that cryptic information regarding the death of a person who
was residing within the jurisdiction of the investigating officer
in an incident alleged to have taken place on the date and time
informed to him without making any entry in the general diary
or get any FIR lodged, the IO stated to have gone to the place of
occurrence and noted certain blood marks with his torch light
where even the complaining party was not present. Thereafter
by bringing the persons present at the place of occurrence to
the police station and after collecting necessary information,
the FIR was recorded.
16. Keeping the principles laid down in H.N. Rishbud &
Anr. v. State of Delhi - AIR 1955 SC 196 as noted by this
Court in the later decision in State of Uttar Pradesh v.
2
Page 21
Bhagwant Kishore Joshi - AIR 1964 SC 221 and further
referred to in the recent decision in Satish Narayan Sawant
v. State of Goa - 2009 (17) SCC 724, we hold that the
procedure followed by PW-35 in having commenced the
investigation based on Exhibit 96 along with site inspection,
the prior information received by him through phone about the
alleged occurrence and every further steps taken by him in
having recorded the statements of the other eye witnesses, the
initiation taken by him for apprehending the vehicle in which
the accused alleged to have travelled, recovery of weapons from
the vehicle, arrest of the accused including the appellant, the
recovery of the dead body at the instance of A-1 from the village
Onshi, the step taken for getting the dead body examined
through PW-9, the ascertainment of the injuries sustained by
the accused themselves, gathering of the FSL reports on the
materials seized from the accused as well as the deceased,
considered in a sequence, disclose that the case of the
prosecution as projected based on Exhibit 96 even in the
absence of the cross examination of PW-2 in the peculiar facts
and circumstances of this case was perfectly in order and we do
not find any good ground to reject the case of the prosecution
2
Page 22
based on the present submission of the learned counsel for the
appellant.
17. With this, when we come to the alleged participation of
A-2, in the offence, there are overwhelming evidence to
implicate him to the death of the deceased by sharing the
common intention along with the other accused who were
convicted of the various offences as set out in the earlier part of
this judgment. In the first instance, there was a clear cut
evidence of PW-21 owner of the Maruti van whose evidence was
not controverted in any manner relating to the fact that it was
the appellant who took the Maruti van from him which was
identified by PW-21 which was used for the crime. PW-25, the
mechanic who was working in the garage of the deceased made
a specific reference to the presence of the appellant in the van
when the accused persons visited the garage of the deceased to
enquire about his whereabouts. PW 14, 33, 16, 23 and 27 made
specific reference to the overt act played by the appellant in the
assault on the deceased with a big knife (talwar). Talwar is a
long knife with sharp edge on the one side and blunt edge on
the other. PW-9, the post mortem doctor stated that the injury
Nos. 2 to 20, 24 to 31, 35 and 36 were caused by hard and
blunt weapon. Of the above injuries, injury Nos.2 to 12 were
2
Page 23
on the face itself. Injury Nos. 13 to 20 were on the arms and
shoulder. Injury Nos. 24 to 31 were on the leg and in the
buttocks. Injury Nos. 35 and 36 were on the back side of the
body. To a specific query put to him, the doctor opined that
except injury Nos. 21, 22, 23, 32, 33 and 34, other injuries of 2
to 36 found on the body of the deceased could have been
caused by Exhibit 12 which is the sword and knife (Exhibit-13)
while injury Nos. 21, 22, 23, 32, 33 and 34 on the deceased
could have been caused by Exhibit 14, the danda. Therefore,
the extensive part played by the appellant in the crime using
the talwar Exhibit 12 was conclusively made out and the
submission of the learned counsel on this aspect is grossly
futile.
18. The appellant was identified by at least two of the
witnesses PW-14 and 33 in the TIP held on 03.11.2003 at the
behest of PW-30 the Special Judicial Magistrate. Though it was
contended that the appellants raised an objection to the effect
that they were already shown by the police officials to the said
witnesses, in order to rule out any hazard on that score, the
accused himself suggested that he be permitted to change his
shirt which PW-30 allowed and, thereafter, he subjected
himself to the TIP in which he was identified by PWs-14 and 33
2
Page 24
without any hesitation. As pointed out by learned counsel for
the State with regard to the holding of the TIP nothing was
elicited in the cross examination in order to hold that the whole
of the TIP was not conducted in the manner it was to be held
and that the identification of the appellant was not proved in
the manner known to law. PW-14 also stated in her evidence
that she had seen the appellant in the village earlier though
she did not know his name. Therefore, when such
identification of the appellant was proved to the satisfaction of
the Court, there was nothing more to be proved about the
manner in which it was held or to find any flaw in the holding
of the TIP. At the risk of repetition it will have to be stated that
the witnesses were not questioned as to the manner in which
they were asked to identify the appellant in the TIP or the
alleged defect in the holding of the said parade when the
witnesses were examined before the Court. Therefore, it is too
late in the day for the appellant to contend that the
identification parade was not carried out in the manner known
to law. Coupled with the above, the evidence of other eye
witnesses, namely, PWs-16, 23, 26, 27 and 34 in having
identified him in the Court by making specific reference to the
red colour shirt worn by him at the time of the occurrence fully
corroborated the version of PWs-14 and 33. It will be
2
Page 25
appropriate to refer to the decisions of this Court reported in
Simon & Ors. v. State of Karnataka -2004 (2) SCC 694,
Dana Yadav alias Dahu & Ors. v. State of Bihar -2002 (7)
SCC 295 and Daya Singh v. State of Haryana - AIR 2001
SC 1188. The following passages in the above referred to
decisions can usefully be referred as under:
Simon & Ors. v. State of Karnataka (supra)
“14…………mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court. What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration……….”
Dana Yadav alias Dahu & Ors. v. State of Bihar (supra)
2
Page 26
“38. (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) xxx”
Daya Singh v. State of Haryana (supra)
“12………For this purpose, it is to be borne in mind that purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution……..”
19. With this, when we examine the reliance placed on the
decision reported in Mohanlal Gangaram Gehani v. State of
Maharashtra (supra) wherein it was held that without
2
Page 27
knowing the accused beforehand the identity made by a
witness, the absence of any TIP would be valueless and
unreliable, the said decision does not apply to the facts of this
case. In the decision reported as Mohanlal Gangaram
Gehani v. State of Maharashtra (supra), it was only held
that where at the earliest opportunity the eye witness failed to
mention any identifying feature of the accused persons, the
identification of the accused by one of the witnesses nearly two
months later in TIP cannot be accepted. In the case on hand
while the occurrence took place on 10.10.2003 the TIP was held
on 03.11.2003, therefore, it cannot be held that there was a
long gap in between in order to state that the witnesses could
not have identified the accused appellant. On the other hand,
PW-14 stated that she had already seen the appellant in the
village though she did not know his name.
20. In the decision reported as Raju alias Rajendra v.
State of Maharashtra (supra) it was held that a TIP parade
after about 1 ½ years after the incident was not reliable. We
do not find any support from the said decision to the facts of
this case. Equally we do not find any scope to apply the
decision reported as Kanan & Ors. v. State of Kerala (supra)
where no TIP was held in respect of the witness who did not
2
Page 28
know the accused earlier. Therefore, the submission based on
the alleged defect in the TIP does not merit any consideration.
21. According to the learned senior counsel, the version of
the eye witnesses is not reliable inasmuch as none of the
witnesses had anything to say about the severe injury suffered
by A-4 on his forehead. PW-9 post mortem doctor has referred
to the injuries sustained by A-4. Before that on 10.10.2003
itself at 7 p.m. he was examined by PW-15 doctor who noted
the injuries and opined that it was caused by a sharp weapon
less than six hours before examination. There was a visible
fracture of skull and it was grievous in nature. A-4 was
referred to the Hospicio Hospital Margao. Exhibit 12 was
shown to PW-15 who opined that there was every possibility of
the injury being caused by the said weapon. She stated that
though A-4 complained that he was assaulted by fist blows all
over his body she did not notice any injury or marks on his
body. Learned counsel would contend that when such specific
injuries on A-4 to A-6 were spoken to by PW15 and PW-9 none
of the eye witnesses referred to that in their evidence and
thereby they were suppressing the truth. Learned counsel
therefore, contended that their whole version cannot be
believed.
2
Page 29
22. In this respect, it will be worthwhile to refer to the
approach of the High Court where it has taken pains to analyze
the crime threadbare and found that there was no evidence led
as regards the alleged assault on him by sword, that not even a
suggestion was put to any of the prosecution witnesses to state
that there was assault by anyone and the trial Court, therefore,
noted that there was every possibility of A-4 having sustained
the injures with Exhibit 12 which was very widely used by the
appellant on the deceased in which occurrence A-4 also fully
participated. Such an approach of the trial Court in the
peculiar facts and circumstances of the case cannot be held to
be wholly improbable.
23. Accused No.4 except making a statement in 313
questioning that he was assaulted by 4 to 5 person along with
two other motor cyclists with a sword when he was waiting at
Canacona bus stop at 4.30 p.m. on 10.10.2003, there was no
supporting material placed before the Court in the form of
legally acceptable evidence and further in the absence of any
cross examination on that aspect to any of the witnesses
examined in support of the prosecution, there is no scope to
consider the said submission of the learned counsel to grant
any relief to the appellant. Learned counsel relied upon
2
Page 30
Thaman Kumar v. State of Union Territory of Chandigarh
- 2003 (6) SCC 380 para 16 and Khambam Raja Reddy and
Anr. v. Public Prosecutor, High Court Andhra Pradesh –
2006 (11) SCC 239 para 17. We do not find any support from
the said decisions to the case before us. Therefore, the
submission of the learned counsel that the prosecution failed to
explain the grievous injury found on A-4 or other accused does
not in any way support the case of the appellant and the said
submission, therefore, stands rejected.
24. It was then contended that none of the ingredients of
Section 364, IPC were made out for the High Court to find the
appellant guilty of the said offence along with A-1, A-3 and A-4.
In this context, it is sufficient to refer to what has been stated
by the High Court. In paragraph 87, the High Court has
observed on this aspect which reads as under:
“87. The learned trial Court, however, erred in acquitting the accused No.1- Valeriano Barretto, the accused No.2-Subhash Krishnan, the accused No.3- sanjay Gadekar, the accused No.4-Shailesh Gadekar under Sections 342, 364 read with Section 34 of IPC, 1860. The view taken by the learned trial Court for acquitting the said accused persons proceeded from the fact that the victim Shanu fell unconscious and thereafter, he was put in a dicky of the Maruti van. This fact, the learned trial Court reasoned, did not further materialize into his prevention from proceeding in any direction and or his abduction in
3
Page 31
order to murder him or to put him in danger of being murdered. Essentially both the offences i.e. wrongful confinement and abduction are the offences which are committed as a result of curtailment of personal liberty. The offence of wrongful confinement as defined under Section 340 of the Code occurs when individual is wrongfully restrained in such a manner as to prevent him/her from proceeding beyond certain circumscribing limits. The offence of abduction under Section 362 of the Code involves use of force or deceit to compel or induce any person to go from any place. Evidence clearly shows that the victim Shanu by use of criminal force i.e. the assault was made to loose his consciousness. Even if the victim would have wished to proceed in any one direction, he would not have been in position to do so for the reason of his unconsciousness. Certainly, Shanu never wished to go with his assailants in the Maruti Van, but was compelled by the said accused persons to go from the place of incident to the place where he ultimately met his death. Deceit involves tricking away of individual from reality. Unconsciousness paralyzed the mental faculties of the victim and freezed his perception as regards the place. Virtually, the victim was, thereafter, tricked away from the reality while in unconscious state and made to go from one place to another. Thus, the learned trial Court grossly misinterpreted the facts and recorded manifestly illegal finding.”
25. As rightly pointed out by the High Court under Section
362, IPC when by force or deceit if any person is compelled or
induced to go from any place and such an abduction takes
place in order to ultimately eliminate him, the offence would be
made out under Section 364, IPC. As rightly pointed out by the
High Court, examining the conduct of the appellant along with
the other accused in wrongfully restraining the deceased by
3
Page 32
inflicting severe injuries on the body of the deceased i.e. by
causing as many as 36 injuries in which process the person
lost his conscious where after he was shifted to a different
place, where it ultimately came to light that the person was
killed by hanging, every description of the offence under
Sections 342 and 364 with the aid of Section 34, IPC was
clearly made out. Therefore, we do not find any fault in the
said conclusion of the High Court in having reversed the
judgment of the trial Court for convicting the appellant for the
offence under the said Sections.
26. The submission of learned counsel for the appellant
about the impossibility of the eyewitnesses in having noted the
participation of the appellant and the other accused in the
crime was on the basis that according to PW-35 the distance
between the place of occurrence and the point from which the
eye witnesses stated to have seen the occurrence was more
than 70 metres. In the first place, when the occurrence had
taken place at 4.30 in the evening there would be no difficulty
for anyone to have a clear view of what was happening before
them. Even in the vicinity of 70 metres when about 8 persons
were assaulting the deceased with sword, knife and danda on
the road, in full public gaze, it would have definitely caught the
3
Page 33
eye of everyone standing thereat. The presence of the eye
witnesses at the place of occurrence was not in dispute. The
witnesses made it clear that they were seeing the occurrence
from the shop called Marina stores. It is not as if they were not
looking at the occurrence. According to the witnesses, as well
as, the prosecution, the eye witnesses were viewing the
occurrence from the entrance of Marina stores. Therefore, the
version of the eye witnesses that they were able to see the
specific part played by different accused and, in particular, the
appellant who was using a talwar in the absence of any
malafide attributed to the witnesses, their version cannot be
rejected. We, therefore, do not find any substance in the said
submission of the learned counsel. As regards the time factor,
it cannot be held that since the incident happened within 4-5
minutes, it was not possible for the witnesses to have noted the
participation of the accused in the crime. It is relevant to note
that according to PW-9, as many as 36 injuries were found in
the body of the deceased which were caused by the blunt side
of the talwar, knife as well as danda. In inflicting so many
injuries, the time taken would have been sufficient enough for
the witnesses to have made an observation as to the role played
by the accused in the crime. Therefore, on that score as well
there is no scope for doubting the version of witnesses as
3
Page 34
regards the participation of the appellant in the crime. It is
true that PW-23 in his evidence stated that he saw the
appellant having suffered bleeding injury which was not
proved. It was also true that it was A-4 who suffered the
bleeding injuries on his forehead which was caused with the
aid of a knife. We have already concurred with the conclusion
of the Courts below about the possibility of A-4 having suffered
the injury with the aid of Exhibit -12 (talwar) which was widely
used by the appellant and inasmuch as A-4 was also actively
involved in the crime. Since the appellant used Exhibit 12
extensively, there was every possibility of A-4 having suffered
the injury. In the light of the overwhelming evidence of the
other eye witnesses, the medical evidence and the forensic
reports, the wrong statement of PW-23 cannot be said to have
caused any serious dent in the case of the prosecution.
Therefore, on that score, we do not find any scope to interfere
with the judgment impugned.
27. Having regard to our above conclusions, we do not find
any merit in these appeals. The judgment impugned in these
appeals does not call for any interference. The appeals fail and
the same are dismissed accordingly.
…..……….…………………………...J.
3
Page 35
[Swatanter Kumar]
……………. ………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi; August 17, 2012
3