No proper test identifica
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 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.
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 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 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 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 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.”
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 prosecutio 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.
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.
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 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 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 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 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 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- 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 on 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.”
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 theaccused 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.
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 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 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 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 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 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 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 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 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. 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)
………………………………….J.
(A.K. Sikri)
New Delhi,
April
21, 2014
