: 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · chitradurga as per ex.p1,...
TRANSCRIPT
![Page 1: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/1.jpg)
: 1 :
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF AUGUST 2012
BEFORE
THE HON’BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL NO.2347/2005 (C)
BETWEEN:
IMRAN @ KARADI IMRANS/O KHARADI RASHIDAGED ABOUT 25 YEARSRESIDING AT CHELUGUDDATHIPPAREDDY EXTENSION,CHITRADURGA. … APPELLANT
(BY SRI B.M.SIDDAPPA, ADV.)
AND
THE STATE OF KARNATAKA,BY STATE PUBLIC PROSECUTOR,HIGH COURTS BUILDING,BANGALORE. … RESPONDENT
(BY SRI K.RAJESH RAI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDERSECTION 374 CR.P.C. BY THE ADVOCATE FOR TE
APPELLANT AGAINST THE JUDGMENT DATED11.8.2005 PASSED BY THE ADDL. S.J.,FTC,CHITRADURGA IN S.C.NO.10/2005, CONVICTINGTHE APPELLANT-ACCUSED NO.1 FOR THE OFFENCEP/U/S 326 IPC AND SENTENCING HIM TO UNDERGOR.I. FOR 2 ½ YEARS (2 YEARS SIX MONTHS) AND TO
PAY FINE OF RS.1,000/- AND IN DEFAULT UNDERGO3 MONTHS R.I.
![Page 2: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/2.jpg)
: 2 :
THIS CRIMINAL APPEAL COMING FOR HEARINGON THIS DAY, THE COURT DELIVERED THEFOLLOWING:-
JUDGMENT
This appeal by convicted accused No.1 in
S.C.No.10/2005 on the file of the Additional Sessions
Judge and Fast Track Court, Chitradurga is directed
against the judgement of conviction and order of
sentence dated 11.8.2005 passed in the said case
convicting him for the offence punishable under Section
326 of IPC and sentencing him to undergo rigorous
imprisonment for 2½ years and also to pay fine of
Rs.1,000/- for the said offence.
2. The case of the prosecution in brief is as
under:-
PW1 Shivamma had been engaged with the
deceased Jayadeva. On 26.10.2003, deceased Jayadeva
requested PW1 to meet him at some place in
Chitradurga and accordingly PW1 met him. Both of
them went to Chitradurga Fort and while they were
![Page 3: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/3.jpg)
: 3 :
sitting behind Ekanatheshwari Temple, at about 12.00
noon on that day, one unknown person backed by two
others, came there and demanded said Jayadeva to pay
money. However, said Jayadeva questioned the
unknown person as to why he should pay money to
him. By that time, the said unknown person took out
knife and stabbed on his stomach and went away. PW1
who was by the side of said Jayadeva screamed for help
and with the help of persons who came there shifted
Jayadeva to the District Hospital, Chitradurga where he
underwent surgery and later shifted to Basaveshwara
Hospital. PW1 lodged report about the incident before
the Station House Officer, Kote Police Station,
Chitradurga as per Ex.P1, based on which, case in
Crime No.164/2003 came to be registered initially for
the offence punishable under Section 307 of IPC against
three unknown persons and FIR was submitted to the
jurisdictional magistrate as per Ex.P12. The injured
Jayadeva succumbed to the injuries on 30.10.2003. On
receipt of the death memo, the I.O. filed a report to the
![Page 4: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/4.jpg)
: 4 :
jurisdictional court seeking to alter the offence to
Section 302 IPC. During the investigation, the I.O. held
inquest over the dead body and later dead body was
subjected to post mortem examination. The doctor who
conducted post mortem examination submitted report
as per Ex.P9 opining that death was due to shock and
hemorrhage as a result of injury to the vital organ
namely lung.
3. The appellant and another were
apprehended by Kote Police in connection with case in
Crime No.31/04 on 15.2.2004. During the
interrogation of the appellant in the said case, he said to
have disclosed his complicity in the incident of assault
on the deceased Jayadeva in the fort on 26.10.2003.
Pursuant to the said voluntary statement, the knife said
to have been used for the commission of the offence was
recovered at his instance. In the said case, the appellant
was remanded to the judicial custody. Thereafter, a
request was sent to the Taluka Executive Magistrate to
conduct Test Identification (T.I. for short) parade. An
![Page 5: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/5.jpg)
: 5 :
application was also filed before the learned magistrate
on 9.3.2003 seeking direction to the Taluka Executive
Magistrate to conduct T.I. parade, which came to be
allowed. Pursuant to the said direction, the Taluka
Executive Magistrate held T.I. parade in the sub-jail on
27.3.2004 in which PW1 participated and identified the
appellant as the assailant who stabbed deceased
Jayadeva. She also said to have identified another
person arraigned as accused No.2. In respect of T.I.
parade Taluka Executive Magistrate submitted his
report as per Ex.P10. During the investigation, the I.O.
recorded statement of witnesses and after completing
investigation laid charge sheet against this appellant
and two others for the offence punishable under Section
302 r/w. 34 of IPC. Before the committal court, the
presence of accused No.3 could not be secured.
Therefore, the case against him was ordered to be split
up and case against accused Nos.1 and 2 was
committed to the Sessions Court. The appellant and
accused No.2 appeared before the Sessions Judge and
![Page 6: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/6.jpg)
: 6 :
pleaded not guilty for the charge levelled against them
and claimed to be tried. To prove the guilt of the
accused for the charge, prosecution examined PWs.1 to
21 and relied on documentary evidence marked as
Exs.P1 to P16 and also material objects MO’s 1 and 2.
During their examination under Section 313 of Cr.P.C.
the accused persons denied all the incriminating
circumstances appearing against them in the evidence
of the prosecution witnesses. The accused did not
choose to lead any defence evidence. The defence of the
accused was one of total denial and that of false
implications. After hearing both sides and on
assessment of oral as well as documentary evidence, the
learned Sessions Judge by the judgement under appeal
held that the prosecution has proved the incident of
assault on deceased Jayadeva with a knife on
26.10.2003 inside the fort of Chitradurga causing him
severe injuries which led to his death. The learned
Sessions Judge further held that evidence on record
established the complicity of appellant accused No.1 for
![Page 7: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/7.jpg)
: 7 :
the injuries found on the deceased. However, the
learned Sessions Judge was of the view that the
evidence on record does not establish that the act
committed by the appellant would amount to murder
punishable under Section 302 of IPC. Therefore, having
regard to the nature of the injury inflicted on the
deceased as also the weapon used, the learned Sessions
Judge held that the act of assault committed by the
appellant would fall under the offence punishable under
Section 326 of IPC. In that view of the matter, learned
Sessions Judge found the appellant guilty of the offence
punishable under Section 326 of IPC and convicted him
for the same. After hearing the counsel for the accused,
the learned Sessions Judge passed the order regarding
sentence as noticed supra. Learned Sessions Judge
however found no material to establish the complicity of
accused No.2 with the commission of the offence.
Therefore, accused No.2 was acquitted for the charge
levelled against him. Being aggrieved by the said
![Page 8: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/8.jpg)
: 8 :
judgement of conviction and order of sentence appellant
No.1 is before this Court with this appeal.
4. I have heard the learned counsel for the
appellant as well as the learned Government Pleader for
the respondent-State.
5. Learned counsel for the appellant contended
that judgement under appeal suffers from perversity
and illegality in as much as the learned Sessions Judge
has failed to notice that the complicity of the appellant
for the acts alleged has not been satisfactorily
established, therefore, the judgment is liable to be set-
aside. He further contended that though the evidence
on record establishes that deceased Jayadeva received
some injuries inside the fort on 26.10.2003, to which he
later died, there is no acceptable evidence to establish
the complicity of the appellant for the said act, as such
the learned Sessions Judge is not justified in holding
the appellant guilty for the offence punishable under
Section 326 of IPC. He further contended that the
![Page 9: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/9.jpg)
: 9 :
identification of the appellant as assailant in the T.I.
parade said to have been conducted is of no value in the
eye of law having regard to the several legal infirmities
with regard to the conduct of T.I. parade. The legal
infirmities pointed out by the learned counsel in this
regard are;
(1) Though the appellant was arrested on
15.2.2004, the alleged T.I. parade has been
conducted nearly about six weeks after his
arrest, as such there is undue delay in
conducting T.I. parade.
(2) From the evidence of PW1 itself it is clear that
immediately after the arrest of the appellant
he was shown to her in the police station, as
such, the identification of the appellant in the
T.I. parade said to have been conducted
subsequently has lost its evidentiary value if
any.
(3) The T.I. parade conducted nearly six months
after the occurrence of the incident, has lost
![Page 10: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/10.jpg)
: 10 :
its credibility having regard to the fact that
even according to PW1 incident occurred
within a minute or two, during which period,
PW1 had hardly any time to have a clear view
of the assailant and to create the image of the
assailant in her mind and the image if any
created in the mind of PW.1 would have
vanished within a short period thereafter.
Therefore, the conduct of T.I. parade after
lapse of about six months of the occurrence
has rendered, the result of the T.I. parade,
unreliable.
6. Learned counsel further contended that if
the circumstances of identification of the appellant in
T.I. parade is eschewed from consideration, the
identification of the appellant as the assailant before the
Court by PW.1 does not get any corroboration as such,
the dock identification before the court nearly about 2
years after the incident cannot be the sole basis to hold
the appellant guilty of the offence for which he has been
![Page 11: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/11.jpg)
: 11 :
convicted. Therefore, the learned counsel sought for
setting-aside the judgement under appeal and for
acquittal of the appellant.
7. On the other hand, learned Government
Pleader sought to justify the judgement under appeal
contending that the judgement under appeal does not
suffer from any perversity or illegality as the learned
Sessions Judge on proper appreciation of oral and
documentary evidence has recorded findings which are
sound and reasonable regard had being to the evidence
on record, therefore, the judgement under appeal does
not warrant interference by this Court. He further
contended that there is absolutely no evidence on record
to indicate that PW1 had an opportunity to see the
accused-appellant before the conduct of T.I. parade,
therefore, T.I. parade conducted within a reasonable
time after his arrest, cannot be discarded on the ground
of delay. He contended that the appellant who was
arrested in connection with some other case was found
to be involved in this case pursuant to the voluntary
![Page 12: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/12.jpg)
: 12 :
statement and thereafter I.O. sought direction from the
jurisdictional Court to the Taluka Executive Magistrate
to conduct T.I. parade, therefore, having regard to the
facts and circumstances of the case, there has been no
delay in conducting the T.I. parade. He further
contended that the evidence of PW.1 and PW.13 the
Taluk Executive Magistrate clearly establishes that T.I.
parade was conducted on 23.7.2004, in which the
appellant was identified by PW.1 as the assailant who
inflicted the injury to the deceased. He further
contended that having regard to the totality of the
evidence on record, the learned sessions judge is
justified in finding the appellant guilty of offence
punishable under Section 326 of IPC, as such, the
judgement does not call for interference by this Court.
Therefore, he sought for dismissal of the appeal.
8. In the facts and circumstances of the case
and in the light of the submissions made on both sides,
the points that arise for my consideration are;-
![Page 13: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/13.jpg)
: 13 :
(a) Whether the judgment under appeal
suffers from any perversity or illegality
warranting interference by this Court?”
(b) Whether the learned Sessions Judge is
justified in convicting the appellant for the
offence punishable under Section 326 of
IPC? If so, whether the sentence ordered
by the court below is just and proper?
9. I have bestowed my anxious considerations
to the submissions made on both sides. I have perused
the records secured from the Trial Court.
10. As noticed supra, in respect of the incident
of assault on deceased Jayadeva, criminal law was set
on motion by PW1 in the form of lodging report at 3.30
p.m. on 26.10.2003 as per the Ex.P1. As could be seen
from FIR Ex.P12 the same was received by the
jurisdictional magistrate at 12.00 noon on 27.10.2003.
The incident of assault said to have occurred at about
12.00 noon inside the fort at Chitradurga and
immediately after the incident, the injured was bought
to the hospital with the help of the people who gathered
![Page 14: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/14.jpg)
: 14 :
there and while PW1 was in the hospital attending to
the injured, PSI, Kote Police Station, Chitradurga, on
intimation received from the hospital, came to the
hospital and received the complaint from PW1.
Therefore, I find no delay either in lodging the FIR or
FIR reaching the jurisdictional magistrate.
11. Even according to the complainant the
assailant was unknown and stranger to her as well as to
the injured. According to the medical evidence, when
the injured was brought to the hospital, he was restless
and was not in a position to speak and ultimately died
on 30.10.2003. There is some indication in the evidence
of the witnesses that in the meanwhile the injured was
in a position to speak, nevertheless, his statement was
not recorded. Having regard to the fact that assailant
was unknown to PW1 and also to the injured, in my
opinion, non-recording of statement of the injured has
not in any way rendered the case of the prosecution
suspicious. As per the contents of at Ex.P1, the
complainant was the only eyewitness to the incident. In
![Page 15: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/15.jpg)
: 15 :
Ex.P1 certain description about the assailant had been
furnished. Nevertheless, since the assailant was a
stranger and had not been named in the complaint,
initially the case came to be registered against unknown
persons. According to the prosecution, the complicity of
this appellant for commission of the offence in this case
was revealed only after the arrest of the appellant on
15.2.2004 in connection with some other case by Kote
police. Till 15.2.2004, the identity of the assailant was
not known to the I.O. PW1 who is the sole eyewitness to
the incident, in her evidence has reiterated the contents
of the Ex.P1 with regard to the incident of assault on
Jayadeva. The evidence of PW1 would clearly establish
that while she and deceased Jayadeva were talking
behind Ekanatheshwari Temple, an unknown person
came and demanded Jayadeva to pay money and since
money demanded was not paid, the assailant stabbed
Jayadeva with a knife on the stomach. The medical
evidence on record clearly establish that the injured was
brought to the hospital at about 12.45 p.m. on
![Page 16: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/16.jpg)
: 16 :
26.10.2003 and at that time he was found having stab
injury and immediately he was subjected to surgery and
later he was shifted to the Basaveshwara hospital where
he succumbed to the said injuries. Therefore, the
evidence on record clearly establish that Jayadeva
sustained grievous injury on his stomach and later he
succumbed to the said injury. As noticed supra, learned
Sessions Judge was of the view that the prosecution has
not established that the acts alleged attracts the offence
punishable under Section 302 of IPC. Therefore, the
accused were acquitted for the charge under Section
302 R/w 34 IPC. The next question would be whether
the complicity of the appellant, as held by the learned
Sessions Judge, is established. As noticed supra, the
assailant who inflicted injuries to the deceased was a
stranger. Therefore, the identity of the assailant was
said to have been established only during the T.I.
parade held on 27.3.2004. It is fairly well-settled that
the T.I. Parade is not substantive evidence, but it is only
a corroborative piece of evidence. The substantive
![Page 17: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/17.jpg)
: 17 :
evidence is the evidence before the Court. However, the
evidence with regard to the dock identification of the
accused before the Court requires to be corroborated by
earlier identification if the assailant is stranger and
unknown to the witness. If there is no proper
identification prior to the dock identification before the
Court, it is well settled that such evidence is a weak
piece of evidence and such evidence cannot be the sole
basis to hold the accused guilty of the offence alleged.
12. In the case of Siddanki Ram Reddy V. State
of Andra Pradesh reported in (2010) 7 SCC 697, the Apex
Court has held that the substantive evidence should be
sufficiently corroborated by a T.I. parade held soon after
the occurrence and any delay in holding T.I. parade may
be held to be fatal to the case of prosecution.
13. In the case of Sukhbir Singh V. State of
Panjab reported in (2011) 11 SCC 436, the Apex Court
has held that though there is no inflexible rule that
identification made for the first time in the Court has to
![Page 18: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/18.jpg)
: 18 :
be always ruled out of consideration, but the broad
principle is that in the absence of no other evidence
against accused, identification in Court made after the
event is clearly not acceptable.
14. In the case of Daya Singh V. State of
Hariyana reported in AIR 2001 SC 1188, which has been
reiterated in Siddanki Ram Reddy V. State of Andhra
Pradesh referred to supra, the Apex Court has held that
the purpose of test identification is to have corroboration
to the evidence of the eye witnesses in the form of earlier
identification and that the substantive evidence of a
witness is the evidence in the Court and if that evidence
is found to be reliable then the absence of corroboration
by test identification would in any way immaterial.
15. In the case of Subash and Shiv Shankar Vs.
State of U.P., reported in 1987 (3) SCC 331, the Apex
Court having regarding the fact that the T.I. parade has
been held three weeks after the arrest of the accused
persons has observed that the T.I. parade has been held
![Page 19: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/19.jpg)
: 19 :
three weeks after his arrest and no explanation has been
offered for the delay in holding the T.I. parade, therefore,
there is room for doubt as to whether the delay in
holding the T.I. parade was in order to enable the
identifying witness to see him in the police lock-up or in
the jail premises and make a note of his features. In the
said decision the Apex Court has also considered the fact
that a sufficiently long interval of time had elapsed
between the date of occurrence when the witness had
seen the assailant for a few minutes and the date of T.I.
parade. After referring to the decisions of the Apex Court
in the case of Muthuswami V. State of Madras reported
in AIR 1954 Cri. L.J. 236 and in the case of Mohd. Abdul
Hafeez V. State of A.P. reported in AIR 1983 SC 367, the
Apex Court held that where an identification parade was
held about 2½ months after the occurrence it would not
be safe to place reliance on such identification of the
accused by the eye-witness and where the witnesses had
not given any description of the accused in the first
information report, their identification at the Sessions
![Page 20: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/20.jpg)
: 20 :
trial cannot be safely accepted by the Court for awarding
conviction to the accused.
16. In the case of State of Andhra Pradesh Vs.
Dr.M.V.Ramana Reddy, reported in AIR 1991 SC 1938, it
has been held by the Apex Court that where there is
unexplained delay in holding the T.I. parade, the
evidence of the prosecution regarding the identity of an
accused cannot be held absolutely unreliable and in
such a case, the accused is entitled to the benefit of
doubt.
17. In Rajesh Govind Jagesha Vs. State of
Maharashtra reported in 2000 Crl.L.J. 380, the Apex
Court has held that in cases where a person is alleged to
have committed the offence and is not previously known
to the witnesses, it is obligatory on the part of the
investigating agency to hold T.I. parade for the purpose
of enabling the witnesses to identify the person alleged to
have committed the offence. It is further observed that
the test identification is considered as a safe rule of
![Page 21: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/21.jpg)
: 21 :
prudence for corroboration and though the holding of
the identification proceedings may not be substantive
evidence, yet such proceedings are used for the
corroboration purposes in order to believe or not the
involvement of the persons brought before the Court for
the commission of the crime and holding of identification
parade being a rule of prudence is required to be
followed strictly in accordance with the settled position
of law and expeditiously and delay, if any, has to be
explained satisfactorily by the prosecution.
18. Thus, from the above decisions, the
principles that emerge are;
(1) though holding of identification parade is not a
substantive evidence, in cases where the
assailant/s is/are strangers and unknown to
the witnesses, their substantive evidence before
the Court regarding identification requires to be
corroborated by an earlier identification and this
is a rule of prudence,
![Page 22: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/22.jpg)
: 22 :
(2) Such T.I. parade should be held at the earliest
without there being any delay and if there is any
delay in conducting such T.I. parade, it has to
be satisfactorily explained by the prosecution
and
(3) the witnesses should not have been given an
opportunity to see the accused after their arrest
and the identification parade conducted should
inspire the confidence of the Court.
19. In the light of the above principles and having
regard to the evidence placed on record in this case, I am
of the opinion that the T.I. parade said to have been
conducted in this case has lost its evidentiary value for
more than one reason as such, the substantive evidence
of PW.1 before the Court with regard to the identity of
the appellant as assailant has not been corroborated.
Therefore, the sole testimony of PW.1 before the Court
cannot be the basis to record conviction against the
appellant for the offence punishable under Section 326
of IPC.
![Page 23: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/23.jpg)
: 23 :
20. As noticed supra, even according to PW.1 the
assailant responsible for the injury suffered by the
deceased Jayadeva was stranger and unknown to her.
Therefore, the conduct of T.I. parade was obligatory on
the part of the investigating agency. The incident said to
have occurred on 26.10.2003. Even according to the
investigating officer, the appellant was arrested on
15.2.2004 in connection with some other case registered
in the same police station and during interrogation, the
appellant said to have disclosed the complicity of the
other accused persons in the commission of the offence
involved in this case. Even according to the prosecution,
the T.I. parade was conducted on 27.3.2004 i.e., nearly
about six weeks after the arrest of the accused and
about five months after the occurrence. According to
PW.19-Mahanthareddy, the Investigating Officer, he
sought for permission from the Court on 24.2.2004 to
conduct test identification parade. However, from the
evidence of PW.21 – B.S.Ravishankar Naik, on 22.3.2004
he sent a requisition to Taluka Executive Magistrate to
![Page 24: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/24.jpg)
: 24 :
conduct T.I. parade. PW.13–K.Gurumurthy, Taluka
Executive Magistrate in his evidence has stated that on
9.3.2004 and on 11.3.2004 the Additional Civil Judge,
JMFC had directed him to conduct T.I. parade and
accordingly, he conducted T.I. on 27.3.2003. However,
in the report submitted as per Ex.P.10, the Taluka
Executive Magistrate said to have conducted the T.I.
parade pursuant to the request made by the Circle
Inspector through his letter dated 24.2.2004.
21. As could be seen from the records of the
Committal Court, an application seeking direction to the
Taluka Executive Magistrate to conduct T.I. parade was
filed before the Jurisdictional Magistrate on 9.3.2004
and on the same day, the learned Magistrate passed an
order directing the Taluka Executive Magistrate to
conduct the T.I. parade after intimating the date of the
identification parade to the investigating officer. Thus,
there is no consistency with regard to the date on which
the Taluka Executive Magistrate was requested or
directed to conduct the T.I. parade. There is also no
![Page 25: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/25.jpg)
: 25 :
consistency as to pursuant to which the direction or
request the T.I. parade was conducted. At any rate, there
is no explanation as to why for about six weeks after the
arrest of the appellant the T.I. parade was not
conducted. From the narration made by PW.1 in the
complaint, the incident of assault occurred in a duration
of about one minute. Though in the cross-examination,
PW.1 has stated that she had seen the assailants earlier
to the date of the incident, her statement in the
complaint - Ex.P.1 clearly indicate that the assailant was
stranger and unknown to her. Within that short period
in which the incident occurred, it is highly difficult to
believe that PW.1 had opportunity to see the face of the
assailants and create his image in her mind. Assuming
that PW.1 was able to see the assailants clearly and
create his image in her mind, it is highly difficult to
believe that she would have retained the said image for
nearly six months so as to identify the assailant in the
T.I. parade conducted later.
![Page 26: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/26.jpg)
: 26 :
22. In the cross-examination of PW.1, she has
stated that after the arrest of the accused, they were
shown to her in the police station and there she had
identified one of the accused. Answers elicited in this
regard reads as under:-
DgÉÆæ ¹PÀÌ ªÉÄÃ É eÉÊ®°è vÉÆÃj¹zÀgÀÄ. ¥ÉÇð¸ï¸ÉÖñÀ£ï£À°è £À£ÀUÉ 2 À® PÀgɹzÀÝgÀÄ. C°è 4-5 d£ÀgÀ£ÀÄßvÉÆÃj¹zÀÝgÀÄ. ¥ÉÇð¸ï ÉÖñÀ£ïUÉ £À£ÀUÉ PÀgɹzÁUÀ EªÀgÉãÁ£ÉÆÃr¢ÝÃgÁ, JAzÀÄ PÉýzÁUÀ CzÀgÀ°è PÉÆÃnð£À ªÀÄÄAzÉEzÀÝ M§â DgÉÆæAiÀÄ£ÀÄß vÉÆÃj¹zÉÝ.
23. Above answer elicited from PW.1 indicates
that after the arrest of the appellant on 15.2.2004, PW.1
had an opportunity to see him in the police lock-up.
24. Perusal of the Committal records further
indicates that immediately after the arrest of the
appellant in connection with Crime No.31/2004
registered for the offences punishable under Sections
380 and 457 of IPC, the police had published the
photograph of all the arrested accused persons and also
the information that those arrested persons are also
involved in the murder of Jayadeva on 26.10.2003.
![Page 27: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/27.jpg)
: 27 :
Thus, PW.1, who is the sole eye-witness had all the
opportunity to see the appellant immediately after his
arrest while he was in the police custody. Above two
circumstances, in my opinion, has affected the
evidentiary value of the T.I. parade. No doubt, evidence
of PW.13 read with the oral evidence of PW.1 indicates
that the T.I. parade was conducted in the jail at
Chitradurga on 27.3.2004 wherein PW.1 identified the
appellant as assailant. However, having regard to the
fact that PW.1 - the sole eye witness had an opportunity
to see the appellant while he was in the police custody
and since the T.I. parade has been conducted after about
five months from the date of the occurrence and about
six weeks after the arrest of the appellant, the test
identification parade has lost its evidentiary value, as
such, no significance can be attached to the same. In
view of the above, the result of T.I. parade cannot have
any corroborative effect to the evidence of PW.1. Thus,
the evidence of PW.1 before the Court regarding dock
identification of the appellant as assailant has remained
![Page 28: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/28.jpg)
: 28 :
un-corroborative. Having regard to the facts and
circumstances of the case, the uncorroborated sole
testimony of PW.1 with regard to the complicity of the
appellant for the commission of the offence cannot be
the sole basis to hold him guilty. The learned Sessions
Judge, in my opinion, has totally failed to take into
consideration all these factors before holding that the
identity of the appellant as assailant is established.
25. Learned Sessions Judge has not properly
considered the various circumstances brought out on
record which has rendered the conduct of the T.I. parade
doubtful and its evidentiary value having been lost on
account of PW.1 having seen the appellant before
conduct of T.I. parade. Therefore, findings recorded by
the trial Court regarding the complicity of the appellant
in the commission of the offence are perverse and illegal.
The judgment under appeal suffers from legal infirmity
on account of non-consideration of the various
circumstances brought out on record regarding the
evidentiary value of the T.I. parade. Having regard to the
![Page 29: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/29.jpg)
: 29 :
facts and circumstances of the case, I am of the
considered opinion that the prosecution has failed to
establish the complicity of the appellant for the
commission of the offence and therefore, the learned
Sessions Judge is not justified in convicting the
appellant for the offence punishable under Section 326
of IPC.
26. In view of the above discussions, I am of the
opinion that the appellant is entitled to the benefit of
doubt and thereby for an order of acquittal.
27. In view of the above, the appeal is allowed.
(i) The judgment of conviction and order
of sentence dated 11.8.2005 passed by the
Additional Sessions Judge and Fast Track
Court, Chitradurga, in S.C.No.10/2005
convicting the appellant for the offence
punishable under Section 326 of IPC is hereby
set aside;
![Page 30: : 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14 · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the](https://reader031.vdocuments.us/reader031/viewer/2022011820/5ea315fe1357970a10362e1c/html5/thumbnails/30.jpg)
: 30 :
(ii) The appellant is acquitted of the said
charge. The bail bond and surety bond executed
by the appellant are ordered to be discharged
(iii) The fine amount, if any, paid by the
accused is ordered to be refunded to him.
Sd/-
JUDGE
KLY/SA *