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                        [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903/2014 (arising out of S.L.P.(Crl.) No. 6943/2011)

Thimmareddy & Ors.       …..Appellants

Vs.

State of Karnataka             …..Respondent

J U D G  M E N T  

A.K.SIKRI,J.

1. Leave granted.

2. With the consent of learned counsel for the parties, matter  

was heard finally.

3. Instant is an appeal filed by three persons who were accused  

of  committing offence punishable under Section 397 read with  

Section 120-B IPC along with five others.  After the trial of these  

accused  persons,  the  Sessions  Court  had  acquitted  all  the  

accused  person  holding  that  charge  under  the  aforesaid  

provisions had not been proved against these accused persons

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beyond reasonable doubt. The State had questioned the validity  

of the judgment of the trial court by preferring the appeal under  

Section 378(1) and (3) of the Code of Criminal Procedure.  During  

the pendency of the appeal, one of the accused persons, namely  

P.Laxman (A-3)  died.   Appeal  was  heard  qua remaining  seven  

accused  persons.  The  High  Court  vide  its  judgment  dated  1st  

December 2010 has convicted five of the seven accused persons  

for the offence punishable under Section 397 read with Section  

120-B  of  the  IPC  and  have  imposed  the  sentence  of  rigorous  

imprisonment for a period of seven years.  They have also been  

directed  to  pay  compensation  of  Rs.50,000/-  each  for  the  

aforesaid  offences and in default of such payment, to undergo  

simple imprisonment for a period of one year. The persons who  

were convicted are accused No.1 to  5,  7  and 8.  In  respect  of  

accused  No.4  and  6,  the  judgment  of  the  Sessions  Judge  is  

maintained holding that the charges against them are not proved  

and appeal in respect of the said two persons is dismissed.  As  

mentioned above, out of the five accused convicted, only three  

have approached this Court with present appeal, who are A-1, A-2  

and A-5.

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4. The case of the prosecution has been stated by the High  

Court  in  the  impugned  judgment,  which  can  be  reproduced  

without any fear or contradiction, is as follows:-

“On 8.10.2004 at about 10.30 p.m., a KSRTC  bus bearing No.KA.36/3453 was proceeding  on  the  Manvi-Raichur  Road  near  Kapagal  village.  At  that  time,  accused  No.4  and  accused  No.6  who  had  conspired  together  andplanned  to  commit  dacoity,  gave  information to accused No.1, accused No.2,  accused No.3, accused No.7 & 8 and all  of  them  committed  the  offence  as  per  their  plan.  Accordingly,  they  went  by  bus  from  Gadwal  and  travelled  in  the  Raichur  Mantralayam-Hubli  bus  as  passengers.  A-2  by holding a sickle to the neck of the driver  PW.2,  asked  him  to  stop  the  bus  by  assaulting him and threatening to injure him.  Immediately the bus was stopped. Accused  No.5 took the knife and accused No.1 took  dagger and pressed on the chest of PW3 and  threatened  him  with  dire  consequences.  Then, accused No.3 robbed the suit case of  PW6 and A-7 took out a knife and threatened  PW15, Udaykumar, who suffered injuries on  his left hand. A-8 snatched a bag containing  money  from  PW1.  Then  A-1,  A-5  and  A-8  robbed  the  two  suit  cases  of  PW13  Jagadeesh  and  PW7  Jeelani.  They  also  snatched the bag of PW20 Hanumanthappa.  A-1,A-7 and A-8 snatched the cash bag from  the complainant namely the conductor of the  bus. They went at a distance opened the suit  cases, took away the money and threw away  the  articles.  Thereby  all  the  accused  committed  dacoity  of  an  amount  of

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Rs.4,47,100/-.  Thereafter,  the  complainant  went to the Manvi Police Station and lodged  a  complaint.  PWs.2,  6,7,13  and  15  accompanied  him.  The  statements  of  PWs.2,6,7,13  and  15  were  also  recorded.  Accordingly,  a  case  in  Crime  No.182/2004  was registered by the Manvi  Police Station  for offences punishable under Section 120-B  read  with  397  IPC  and  investigation  commenced.  Thereafter  the  accused  were  arrested  and  a  sum  of  Rs.28,000/-  was  recovered from A-1,  a  sum of   Rs.54,000/-  from A-2, a sum of Rs.32,000/- from A-3, a  sum  of  Rs.36,000/-  from  A-4,  a  sum  of  Rs.35,000/-  from A-5,  a sum of Rs.12,000/-  from A-6, a sum of Rs.500/- from A-7 and a  sum  of  Rs.9,600/-  from  A-8.  The  weapons  used in the offence was recovered on their  voluntary  statement.  Various  articles  were  also  recovered.  On  completion  of  investigation,  a  charge  sheet  was  filed  by  the  prosecution  and  the  accused  were  charged  for  the  offence  punishable  under  Section 120-B and 397 of  the Indian Penal  Code. “

5. The prosecution  examined 24 witnesses  and produced 78  

documents which were exhibited. The prosecution also marked 37  

material objects. The accused persons in their defence examined  

two witnesses and produced five documents.

6.  As is clear from the provisions of IPC, charge whereupon  

was  pressed,  it  was  the  case  of  the  prosecution  that  eight

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accused persons had hatched a conspiracy to commit the dacoity  

and in furtherance of the said conspiracy they committed dacoity  

by intercepting KSRTC on 8.10.2004 at about 10.30 p.m.  The trial  

court,  accordingly,  formulated  following  points  which  arose  for  

consideration:

“1) Whether the prosecution proves that the accused  

conspired together in order to commit robbery on CW-3Y Yousuf  

in  KSRTC  bus.  While  he  was  travelling  and  also  to  other  

passengers in the bus?

2) Whether the prosecution proves that as a result of  

said conspiracy the accused committed the dacoity in  the bus  

bearing  No.KA-36/3453  by  showing  the  deadly  weapons  like  

sickle, knives near Kapgal Seema at Bailmerchad cross on Raichur  

Manvi road and committed Dacoity?

3) What order?”

7. Obviously, the first question which fell for consideration  

was as to whether  the accused persons had conspired together in  

order to commit robbery on Yousuf (PW-6). Second aspect of the  

matter was as to whether prosecution was able to prove that as a

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result of the aforesaid conspiracy these accused persons had, in  

fact,  committed dacoity in the said bus on the given date and  

time.

8. In so far as charge of conspiracy is concerned, it was noted  

by the trial court that the evidence produced in support of this  

charge was PW-19 Allabaksh and Yusuf (PW-6). The statement of  

PW-19 was that he knew Yusuf (PW-6) and Sitaramulu (A-6). One  

day before 9.30 a.m. before the alleged incident, eight accused  

persons were seen standing near the shop of Accused No.1 which  

was 50 km away from the shop of A-6 Siddaramyiah beneath the  

tree. A-6 was telling other accused persons that on the next date  

Yousuf was going out of town and other accused had to do their  

work.  Thereafter they dispersed.  On the next day,  this witness  

(PW-19) came to know that there was a robbery in which Yousuf  

was robbed of Rs.3.60 Lakh.  The learned Sessions Judge, after  

analyzing the testimony of PW-19, as well as PW-6 on this aspect  

came to the conclusion that  the charge of  conspiracy was not  

proved inasmuch as, the mere fact that eight accused persons  

were  gathered  on  the  previous  day  could  not  automatically  

connect  to  the  commission  of  alleged  crime.  The  relevant

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discussion in the judgment of the learned trial court on this aspect  

reads as under:

“The  requirement  of  criminal  conspiracy, there must be an existence of an  agreement  to  commit  an  offence.  The  conspiracy  can  be  proved  by  the  direct  evidence though the same is rarely available,  or  by  circumstantial  evidence.  As  could  be  seen from the requirement of law there must  be  an  agreement  between  the  accused  to  commit an unlawful act lead to inference of  conspiracy. The evidence of this Allabakash is  not corroborated with any other evidence. He  never speaks about anything unlawful act to  be done and anything about  an agreement  between  the  parties  with  regard  to  the  commission  of  an  unlawful  act.  Necessary  ingredients are not established by leading the  evidence of this PW-19 during the course of  cross-examination he has admitted that the  accused  were  talking  in  open  space.  The  publics were passing besides the accused. He  did not hear what they were talking. He did  not suspect about the accused. Two months  after  the  incident  the  police  came  and  enquired him. Seetharama A-6 is a merchant  and  good  man.  On  that  day  whatever  the  accused were talking was not  in  respect  of  any  wrongdoing.  These  answers  of  this  witness  during  the  course  of  cross- examination  clearly  gives  goodbye  to  the  theory of criminal conspiracy. Therefore, the  materials  available  on  record  are  not  sufficient  to  establish  that  there  was  a  criminal  conspiracy  among  the  accused  in  order to commit the offence.”

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9. It would be pertinent to mention that even the High Court  

has not discarded the aforesaid findings of the trial court on the  

charge of conspiracy. As would be seen hereinafter, the reason  

for convicting five accused persons, out of eight who stood trial, is  

that testimonies of other witnesses who were in the bus and had  

purportedly  seen  the  said  accused  persons.  For  want  of  

establishment of charge of conspiracy A-6 and A-4 are let off by  

the High Court also as they were not named by any of the eye  

witnesses.  We  are,  therefore,  quite  in  agreement  with  the  

conclusion  of  the  trial  court  that  charge  of  conspiracy  under  

Section 120-B of IPC has not been proved.

10. In so far as the charge under Section 397 IPC is concerned,  

the  prosecution  had  relied  upon  the  testimony  of  PW-1  

( conductor of the bus), PW-2 (driver of the bus), PW-6 Yusuf (one  

of  the  victims),  PW-7(owner  of  a  hotel),  PW-9  (cleaner  in  a  

tempo), PW-16. Testimony of PW-9 has not been believed either  

by the trial court or the High Court and therefore no discussion  

about his deposition is necessitated.

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11. PW-1 who is the conductor of the bus and an eye witness  

was the complainant as well. Apart from narrating the incident of  

dacoity,  the  material  part  of  his  testimony  is  that  he  had  

identified A-1 and A-5 and their overt acts. As per him, six persons  

boarded the bus near the Bailmerchad Cross and accused 1and 5  

came near the driver. A-1 assaulted and threatened him with a  

sickle  and asked him to  stop the bus.  PW-1 while  deposing in  

Court identified A-1 and A-5 who had snatched his cash bag.  

12. PW-2 (driver),  likewise,  deposed that  he was hit  from the  

back side by hand and  a chopper was put on his neck. When he  

turned around he saw it was accused No.2 who hit him with his  

hand and put a chopper on his neck and as a result he suffered an  

injury. According to him he identified A-2.

13. PW-6  who  is  the  main  victim and  one  of  the  passengers  

deposed  to  the  effect  that  he  was  carrying  with  him  cash  of  

Rs.3,53,000/-. He boarded the bus which was forcibly stopped by  

two persons who came near him and put a dragger on the left  

side of his chest. These two persons were A-1 and A-3 whom he  

identified.

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14. PW-7  is  owner  of  a  hotel  and  according  to  him,  accused  

persons  had  come  and  stayed  there  and  he  identified  two  of  

them, namely, A-1 and A-2 (at this stage we would like to point  

out that even the High Court has not returned the finding of guilt  

by referring to his testimony which in any case is not connected  

with the actual commission of offence).

15. PW-15(Udayakumar) is a Sales Executive Manager in Hubli  

Pipe Corporation. He deposed that he was also in the bus and was  

assaulted by a knife on his left hand wrist by A-7 and his bag was  

snatched away. When A-7 took his bag he stood up but was again  

assaulted. He identified two persons, namely A-7 and A-8 stating  

that A-7 caused injuries on him by knife and A-8 also assaulted  

him.

16. Apart  from relying  upon the  aforesaid  eye witnesses  who  

deposed against thee accused persons at the time of trial,  the  

prosecution  also  stated  that  after  the  arrest  of  the  accused  

persons Test Identification Parades (TIPs) had been conducted. In  

these TIPs, PW-2, PW-6 and PW-16 were called and participated

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who  identified  A-2,  A-1  and  A-3,  as  well  as  A-7  and  A-8  

respectively.

17. The trial court after analyzing the testimony of the aforesaid  

witnesses refused to believe them. Pertinent observation which is  

made by the trial court in this behalf is that when the statements  

of these witnesses were recorded under Section 161,Cr.P.C.,  at  

the  time  of  investigation  by  the  police  officer,  none  of  these  

witnesses stated that  they had seen the accused persons and  

were in a position to identify them if they were brought before  

them.  The  trial  court  referred  to  Karnataka  Police  Manual  and  

observed that the investigation was not done in accordance with  

the procedure for identifications contained therein. His analysis in  

this behalf reads as under:-

“After  seeing  the  above  statement  the  victims of the incident, before the police, it is  clear that none of the victim has given any  clue  to  identify  the  accused  persons.  Now  the  question  is  what  are  the  materials  available  with  the  police  to  search  these  accused has to be looked into. Here I would  like  to  refer  the  Karnataka  Police  Manual,  where a chapter is provided, which gives the  procedure  for  identifications.  They  have  to  ascertain the kind of light, which was present  at  the  time of  incident.  The  details  of  the

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opportunities  of  seeing the  accused at  the  time of offence. Anything outstanding in the  features  or  conduct  of  the  accused  which  impressed him (identifier). The distance from  which he saw the accused and the context of  time  during  he  say  the  accused.      It  is  mandatory on the part of the I.O. to record in  the case diary, the description in detail with  the above said ingredients. As could be seen  from the case diary available on record there  are no materials placed by the prosecution  to show that they had identification feature  of the accused with them after the incident.  Therfore, there is a lapse on the part of the  investigating agency  to collect the material  information, which gives to the prosecution  an opportunities to identify the accused. But  they have failed to establish the identify of  the accused persons of this case. Therefore,  as could be seen from the statements of eye  witnesses  who  had  suffered  injuries  in  the  hands of the Dacoits who had an opportunity  of seeing the accused with very close range  have  not  given  any  description  of  the  identification feature of the accused.

The  next  stage  comes  where  the  I.O.  gets  an  opportunity  of  examining  the  witnesses who have said to have seen the  accused  persons.  The  important  witnesses  are PW-8 Shankrappa and PW-9 Khaja Pasha.  Their statements were also recorded by the  police.  The  said  Khaja  Pasha  who  is  the  Tempo cleaner, who says that he came near  Gorkal  cross  at  about  7.00  a.m.  there  6  persons were boarded his  tempo.  Three of  them were not  wearing chappals  and they  were talking in telgue, aged about 25 to 30  years, wearing pant and shirt and holding a  plastic bag and legs of the persons were with

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full of mud. They were also taken the tickets  and  got  down  in  Gilleasugur.  Again  they  boarded to Mantralayam bus. He says that if  the  person  were  shown  to  him  he  can  identify the persons. Therefore, this witness  had  an   opportunity  to  see  the  accused  persons from very nearer point and he was  capable of giving the identification feature of  the accused, which were not recorded in his  statement by the I.O.”

18. The trial court also found serious loopholes in the manner in  

which investigation was carried out, leaving serious flaws and the  

discussion exposing these flaws in the judgment of the trial court  

which reads as under:

“In  this  case  the  prosecution  has  lost  several  valuable  opportunities  where  they  could very good material for finding out those  culprits. I have already discussed above that  the fingerprints of the accused persons were  available on the handles of the bus fixed near  the door. These fingerprints were not lifted by  the I.O. for comparing with the fingerprints of  the accused persons. Secondly, the footprints  of the accused persons were available in the  land  at  Kurdi  village  they  were  also  not  collected by the agency in order to compare  them  with  the  accused  persons.  The  prosecution  should  have  collected  some  important  identification features  in  order  to  fix the accused in the offence. The materials  aspects are absent then how he can connect

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this accused to the crime is a big question.  Therefore, the circle is incomplete. The link to  connect the accused with the crime has lost  at Mantralayam.   Because all of a sudden the  I.O. visits to Swagat Lodge and verified the  register and he gets suspicion in the name of  one  Timmareddy.  The  contention  of  the  defence  Advocate  is  that  Mantralayam  is  such  a  place,  where  the  passangers  come  from various  places,  where  the  passengers  come from various  places,  and  there  is  no  direct bus facility to go their place. Therefore,  they got down at Mantralayam and take the  rooms for bathing and performing the Pooja.  After completion of pooja, immediately they  will vacate the rooms and they continue their  travel  to  their  respective  places.  Can  we  cannot rule out and we have to differentiate  from  such  type  of  passengers  with  the  accused.  Then,  how the I.O.  came to  know  that  Timmareddy  was  one  of  the  accused  persons, who gave the information to him. As  could be seen from the eye witnesses have  given any identification feature with regard to  the accused. Even during the second stage of  the  investigation  neither  the  Shankarappa  nor  Khaja  Pasha  have  given  identification  feature  of  the  accused.  Then  the  I.O.  says  that an information has given the clue of the  accused. The only he will capable to give the  clue  with  regard  to  the  accused  persons.  Under  such  circumstances,  there  is  incomplete investigation and without that link  we  cannot  connect  the  crime  with  the  accused  and  here  the  prosecution  has  completely failed to establish the link of the  offence  with  the  accused.  Therefore,  the  decision  relied  upon  by  the  prosecutor  are  not applicable to the present circumstances

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of the case at hand. Because the connecting  link is lost in order to identify the accused.”

19. In  so  far  as  recovery  on  the  basis  of  purported  

voluntary statement of the accused persons is concerned, the trial  

court found that while recording alleged voluntary statement of  

the accused persons, procedure as laid down under Sections 165  

and 166 of the Code of Criminal Procedure  was not followed. The  

accused from outside the State were arrested within the limits of  

some other police station without following the procedure under  

Section 166 Cr.P.C. It is further pointed out that when the accused  

persons were brought in Manvi Police Station and their voluntary  

statements were allegedly recorded, the police committed major  

irregularities which were incurable. According to the prosecution  

the voluntary statements were recorded on 29.10.2004 in respect  

of  Timmareddy,  Venkateshagouda,  T.Laxman,  Anjaneyallu,  

P.Devanna  by  PW-23.  PW-23  says  that  after  the  arrest  of  the  

above said accused persons he requested the Tahsildar Manvi to  

provide  2  official  panchas  at  4.00  A.M.  In  the  meanwhile,  he  

recorded the voluntary statements of A-1 to 5 as per Ex.p-66 to P-

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70. Thereafter, on the basis of the said voluntary statements and  

in the presence of 2 official  panchas deputed by the Tahsildar  

Manvi, he proceeded to recover the cash from their houses under  

the panchanamas.

20.  The aforesaid procedure is commented by the trial court in  

the following manner:

“Now the  question  that  would  arise  is  whey  the  police  officer  has  requested  the  Tahsildar  to  provide  Government  official  to  act as panchas. What is the reason for taking  the  Government  official  to  act  as  panchas.  According to the procedure, the police officer  has to take the assistance of local people as  panchas, and he must give reasons if he does  not  take  the  assistance  of  local  people.  Before recording the voluntary statements he  requests the Tahsildar for giving panchs. How  he  came  to  know  whether  these  accused  persons  would  give  voluntary  statements  regarding  recovery  of  the  cast.  Then o  the  basis  of  those  voluntary  statements  the  amount  was  recovered  from the  respective  houses  and  subsequently,  the  amount  was  recovered from other accused persons as per  their voluntary statements. The I.O. has not  stated about the details of the panchnamas  under which the recovery was made. It has to  be  proved  by  the  prosecution  by  leading  cogent evidence.”

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21. On the basis of the aforesaid analysis, the trial court did not  

believe the version of eye witnesses, faulty TIP as well as legality  

of the recoveries at the instance of the accused persons. With  

this discussion, the trial court concluded that even if there was  

some incriminating material  against  the accused persons that  

was  not  sufficient  to  prove  the  guilt  of  the  accused  persons  

beyond reasonable doubt as cogent evidence was not produced  

and the investigation was faulty. This resulted in the acquittal of  

all the persons by the trial court.

22. Coming to the judgment of the High Court, we find that the  

High Court has referred to the testimonies of PW-1,2 ,6, 7 and 15  

briefly and highlighted the fact that they had identified, between  

themselves,  A-1,A-2,A-5,A-7 and A-8.  Since these are the eye  

witnesses who had identified these five accused persons,  the  

trial court failed to consider the statements of these witnesses  

and a generalized finding was  recorded to the effect that  the  

accused  persons  had  not  been  identified.  Primarily,  on  this  

ground  and  believing  the  aforesaid  persons’   version  as  eye  

witnesses,  the  High  Court  has  convicted  these  five  accused  

persons.

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23. Mr.  K.L.  Janjani,  learned  counsel  appearing  for  the  

appellants questioned the wisdom of the High Court in arriving  

the aforesaid finding by making following submissions:

(1)  The  date  of  alleged  offence  was  8.10.2004  and  the  

accused persons were arrested on 28.10.2004. However, first TIP  

was  conducted  on  9.11.2004  and  second  TIP  on  30.1.  2005.  

Therefore, this abnormal delay in conducting the TIPs, that too  

when the accused persons were not  previously  known to  the  

alleged eye witnesses rendered the entire exercise of TIPs as  

invalid  to which no credence could be given. He referred to few  

judgments in support:   

In  Hari  Nath vs.  State of U.P. 1988 (1)  

SCC  14  wherein  reliance  was  placed  on  the  following  

observations:

“Even on the premise that there was no such  prior acquaintance, the evidence establishing  the identity of the culprits assumes particular  materiality  in  a  case,  as  here,  of  a  dacoity  occurring  in  the  darkness  of  the  night.  The  evidence of the test identification would call  for  a careful  scrutiny.  In a case of this kind  where  the  eyewitnesses,  on  their  own  admission, did not know the appellants before

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the  occurrence,  their  identification  of  the  accused persons for the first time in the dock  after  a long lapse of  time would have been  improper.  In  Halsbury’s  Laws  of  England  (Fourth Edn., Vol. 11, para 363) this passage  occurs and is worth recalling:

“It  is  undesirable  that  witnesses  should  be  asked to identify a defendant for the first time  in  the  dock  at  his  trial;  and  as  a  general  practice it  is preferable that he should have  been placed previously on a parade with other  persons,  so  that  potential  witnesses  can  be  asked to pick him out.”

Other judgment relied upon was on Rajesh Govind Jagesha vs.  

State of Maharashtra 1999 (8) SCC 428 wherein the proposal of  

law is discussed as under:  

“This Court in  State of A.P. v.  M.V. Ramana  Reddy  (Dr) held  that  where  there  is  unexplained delay in holding the identification  parade,  the  evidence  of  the  prosecution  regarding  identity  of  an  accused  cannot  be  held absolutely reliable and in such a case the  accused is entitled to the benefit of doubt. The  explanation  for  delay  in  holding  the  identification  parade  offered  by  the  prosecution  in  the  instant  case  is  not  trustworthy.  The  non-availability  of  a  Magistrate  in  a  city  like  Bombay  for  over  a  period  of  five  weeks  from  the  date  of  the  arrest  of  Accused 1  and  2  and three  weeks

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from the arrest of Accused 3 and 4 cannot be  accepted.  It  is  not  denied  that  scores  of  Magistrates are available in the city of Bombay  and  that  the  investigating  agency  was  not  obliged to  get  the parade conducted from a  specified Magistrate. The High Court was not  justified in holding that the parade could not  be held early on account of alleged difficulties  of the Special Executive Magistrate. It was not  for the defence to prove that the parade held  was  suffering  from legal  infirmities  because,  admittedly, the onus of proof in criminal case  never shifts as the accused is presumed to be  innocent  till  proved  otherwise,  beyond  all  reasonable  doubts,  by  the  prosecution.  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  identification  parade  for  the  purposes  of  enabling the witnesses to identify the person  alleged  to  have  committed  the  offence.  The  absence of test identification may not be fatal  if  the  accused  is  known  or  sufficiently  described in the complaint leaving no doubt in  the  mind  of  the  court  regarding  his  involvement.  Such  a  parade  may  not  be  necessary in a case where the accused person  is arrested on the spot immediately after the  occurrence.  The  evidence  of  identifying  the  accused person at the trial, for the first time, is  from  its  very  nature,  inherently  of  a  weak  character.  This  Court  in  Budhsen v.  State of  U.P. held that the evidence in order to carry  conviction should ordinarily  clarify  as to how  and  under  what  circumstances  the  complainant or the witnesses came to pick out  the accused person and the details of the part  which  such  persons  played  in  the  crime  in

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question with reasonable particularity. The test  identification  is  considered as  a  safe  rule  of  prudence  for  corroboration.  Though  the  holding of the identification proceedings may  not  be  substantive  evidence,  yet  such  proceedings  are  used  for  corroboration  purposes  in  order  to  believe  or  not  the  involvement of the person brought before the  court  for  the  commission  of  the  crime.  The  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.  The  delay,  if  any,  has  to  be  explained satisfactorily by the prosecution.”

(2) His next submission was that PW-1 and PW-7 had  

identified A-1 and A-5 in the court and PW-7 had identified A-1  

and A-2 in the court. However, they were never called at the  

time of conducting TIP.

(3) In respect of all these eye witnesses, namely PW-

1,PW-2, PW-6, PW-7 and PW-15 his submission was that the High  

Court  had  simply  taken  into  account  their  version  in  the  

examination-in-chief and did not discuss the cross-examination  

at all, which exposed the falsity of their statement.

(4)  It  was  further  argued  that  PW-2  (driver)  had  

categorically  stated  that  the  faces  of  all  these  persons  who

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boarded the bus gathered with kerchief  and since their  faces  

were hidden there was no question of identifying these persons  

by any of the witnesses.

(5) It was also submitted that there is no discussion in  

the judgment at all as to how the trial court went wrong and the  

reasons given by the trial  court  particularly  with reference to  

Karnataka Police Manual and faulty investigation are not dealt  

with at all.

(6) Another submission of the learned counsel was that  

at the time when their statements were recorded under Section  

161,Cr.P.C. none of these witnesses stated that they were in a  

position to identify the culprits. There was, thus, clear violation  

of the procedure contained in Karnataka Police Manual  and it  

was a clear case of improvement by these witnesses at a later  

stage either in  belated TIPs or before the court when they were  

examined as witnesses.

24. Mr.  C.B.Gururaj,  learned  counsel  appearing  for  the  State  

referred to the testimonies of the aforesaid eye witnesses and  

argued  that  the  eye  witnesses  were  believable  and  the

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conviction based on their  testimony was just  and legal.   In a  

sense, he relied upon the discussion contained in the judgment  

of  the  High  Court  returning  the  finding  of  guilt  against  the  

appellants.

25. After  considering  the  respective  submissions  and  going  

through the record, we are inclined to accept this appeal as we  

are of the opinion that High Court has committed grave error in  

recording the conviction solely on the basis of the statement of  

the so called eye witnesses, and wrongly believing their version.  

From  the  discussion  contained  in  the  judgment  of  the  High  

Court,  it  becomes  apparent  that  except  stating  what  these  

witnesses  have  mentioned  in  their  examination-in-chief,  no  

further discussion is there in the judgment and the testimony is  

of all these persons are believed as gospel truth. The High Court  

was  duty  bound  to  consider  their  testimonies  in  entirety  i.e.  

along  with  the  cross-examination  in  order  to  find  out  their  

truthfulness and to see whether their version in examination in  

chief has remained unshaken and worthy of credence. No such  

exercise is done at all. No doubt, the trial court has indulged in  

wholesome  discussion  while  discarding  the  testimony  of  eye

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witnesses.  Fact  remains  that  while  doing  so,  the  trial  court  

discussed the infirmities in the procedure adopted which led to  

the disbelieving of all these witnesses. The discussion of the trial  

court  adversely  commenting  upon  the  faulty  procedure  and  

imperfect investigation is completely ignored and sidelined by  

the High Court.

26. In so far as eyewitnesses  are  concerned,  as  pointed  out  

above, the High Court has accepted his truthfulness and relied  

upon the testimonies of PW-1 (conductor who had identified A-1  

and A-5), PW-2 (the driver who had identified A-2), PW-6 (victim  

who had identified A-1 and A-3) and PW-15 (passenger who had  

identified A-7 and A-8). It is stated by the High Court that these  

witnesses  stood  by  their  statement,  their  evidence  is  

unimpeachable and there are no discrepancies in their evidence.  

However, as pointed out, these observations are on the basis of  

examination  in  chief  of  these  witnesses  without  taking  into  

consideration  their  cross-examination.  In  so  far  as  PW-1  is  

concerned, in his cross-examination he has accepted the faces  

of the two persons covered with kerchief. If that was so, he has  

not at all explained as to whether their faces were uncovered at

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any point of time how and when he was able to see their faces.  

He did not explain in his statement recorded under Section 161  

Cr.P.C. as to why he did not state he would be in a position to  

identify  two  persons.  In  that  statement,  he  is  conspicuously  

silent about having seen two persons.

27. Likewise, in so far PW-2, driver is concerned, apart from the  

features  pointed  out  qua  PW-1  which  apply  in  his  case,  he  

mentioned in his examination in chief that “somebody hit me  

from back side by means of hand. They put chopper on neck  

from back side.” In his cross-examination he not only accepted  

that when he was hit on the back of the neck, he did not shout,  

he further specifically stated that “there was no chance for me  

to see back side since the vehicle was in a running vehicle. The  

vehicle was moving at the speed of 20 kms. I did not turn back  

till the accused get down from the bus.”

28. In so far as PW-6 is concerned, he has allegedly identified  

A1 and A-3. Out of these two i.e. A-1 is identified by PW-1 as  

well. However, as stated above PW-1 mentioned that face of A-1  

was  covered.  Again,  he  had  not  explained  as  to  under  what

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circumstances he could identify these accused persons. PW-15  

was another passenger in the bus who has identified A-7 and A-

8. He, inter-alia, has stated that two persons had knife on the  

chest of PW-6 and snatched his bag and came towards him. He  

was assaulted by means of knife on his left hand wrist and his  

bag was also snatched. The two persons who snatched the bag  

from PW-6, according to PW-6 were A1 and A-3. However, PW-15  

identified two other persons namely A-7 and A-8. That apart he  

has also admitted that one of them had covered his face that  

one person has closed his face upto nose by means of the cloth.  

In these circumstances, how he could identify that person is not  

explained.

29. There  is  another  important  aspect  which  cannot  be  lost  

sight of, namely as per PW-1 the faces of all the accused persons  

were covered with kerchief. It is not at all stated by any of the  

witnesses as to when these persons removed those kerchief and  

their  faces  became  naked  which  could  be  seen  by  these  

witnesses.   PW-1  was  subsequently  confronted  with  the  

statement under Section 161, Cr.P.C. to this effect that in the  

cross-examination  he  accepted  that  he  made  the  statement.

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Therefore,  it  was  for  him  to  clarify  as  to  under  what  

circumstances  he  could  see the  faces of  A-1  and A-5 on  the  

same ground how their faces could be seen by other witnesses,  

remains a mystery which is not explained by the prosecution.

30. In this backdrop, the flaws in the investigation pointed out  

by the trial court become crucial.  Curiously, High Court has not  

even adverted to those flaws.

31. We are, therefore, of the opinion that the judgment of the  

High  Court  holding  the  appellants  guilty  of  the  offence  is  

unsustainable. The same is accordingly set aside.  This appeal is  

allowed holding that charge against the appellants under Section  

397 IPC read with Section 120-B has not been proved beyond  

reasonable doubt.

32. The appellants are entitled to be released forthwith and it is  

directed accordingly.

………………………………….J.                            (Surinder Singh Nijjar)

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………………………………….J.                           (A.K. Sikri)

New Delhi, April 21, 2014