Chikkanna vs State of Karnataka

Mr. Aravind Kumar, Justice

Accused No. 3 in crime No. 78/2011 (C.C. 16214/2011) registered by Kamakshipalya Police for the offence punishable Under Sections 143, 147, 148, 302 read with 34 of Indian Penal Code is before this Court seeking for being enlarged on bail.

Gist of the prosecution case is that on 11.02.2011 between 10.20 and 10.30 a.m. when the complainant and his wife were in the house, they heard acrimonious voices in the next street coming from near the house of Sri. Hanumanthaiah and immediately they rushed outside and they went to spot and they saw accused No. l and Ors. had surrounded deceased Vishwa and they found that they were possessing deadly weapons like longs, choppers and said Muniya. assaulted Vishwa with a long on his head and Ors. accompanying said Muniya simultaneously assaulted said Vishwa with long and chopper on his head, face, hands, stomach and other parts of the body and on account of said assault over him he is said to have swooned with bleeding injuries and accused persons went away from the scene of crime and immediately complainant shifted the injured to hospital and doctors informed that said Vishwa had already succumbed to injuries and accordingly a complaint came to be lodged by Sri. Venkatesh on 11.02.2011 at about 12.30 P.M. On the basis of said complaint, Kamakshipalya Police registered a case in Crime No. 78/2011 and during the course of investigation they arrested the accused persons A-l to A-5 and produced them before jurisdictional Magistrate who in turn remanded them to judicial custody. Petitioner herein who is accused No. 3 filed a petition before Fast Track Court (Sessions Judge), Bangalore, in Crl.P.2624/2011 seeking bail. Sessions Court by order dated 15.06.2011 rejected the said petition. Petitioner A-3 is before this Court seeking for being enlarged on bail.

Heard Sri. H.P. Leeladhar. Learned Counsel for Petitioner and Sri. B. Raja Subrahmanya Bhat, learned HCGP for Respondent-State and perused the records produced by learned HCGP. It is the contention of Learned Counsel for Petitioner, that Petitioner has been apprehended solely on the statement of Muniya and there is no reference to his alleged participation in the act of murdering deceased in the complaint dated 11.02.2011 and he has been falsely implicated. He would contend that there has been no identification parade conducted and it is only after Petitioner and other accused persons came to be apprehended and their voluntary statement came to be recorded, complainant was shown the accused persons in the police station and said identification done by the complainant is not in consonance with the mandatory provision for conducting identification parade. He would also contend that complainant Venkatesh is a relative of deceased and he has stated the name of first accused Muniya only and has not stated about the presence of Petitioner or any other accused person in his complaint and even if assuming that he did not know the names of other accused persons he ought to have given details, description of these accused persons and as such he contends that Petitioner is falsely implicated in the instant case. He would draw the attention of the court to inquest report conducted on 11.02.2002 between 1.30 to 4 P.M. and submits that in column No. 10 there is a reference only to statement of Venkatesh said to have been appended to the inquest report and in the said statement also, complainant Venkatesh does not mention any details with regard to the Petitioner or other accused persons. Hence, he contends that complicity of Petitioner is not only doubtful but has been falsely implicated. In so far as eyewitnesses C.W. 7, 8 and 9 relied upon by prosecution he would contend that their statements have been recorded on 11.02.2011 and even they do not state the presence of Petitioner and they only speak about accused No. 1. He would also elaborate his submission by contending that report enclosed to inquest report has been sent after three days from the date of occurrence of crime and very purport of Section 174 Code of Criminal Procedure is defeated and as such he contends that Petitioner is entitled to be enlarged on bail. On these grounds by relying upon the following judgments he seeks for Petitioner being enlarged on bail.

(i) 2005 (1) Cri 113 (SC) - Jayendra Saraswathi Swamigal v. State of Tamil Nadu.

(ii) Mohanlal Gangaram Gehani Vs. State of Maharashtra,

Per contra learned HCGP appearing for the State would contend that eyewitnesses to the incident Sri. Dileep, Sri. Raghavendra, Sri. Dayananda, C.W.-10, 11 and 12 have specifically stated the complicity of the Petitioner in the incident and at this stage contention of prosecution and plea put forward by prosecution cannot be brushed aside and said statement of eyewitnesses and voluntary statement made by accused persons and recovery of incriminating materials from the accused persons are sufficient enough to deny the bail for the Petitioner since Petitioner is a habitual offender and involved in several criminal cases and in the event of he being enlarged him on bail, he would indulge in similar acts and also abscond from the jurisdiction of the court and as such he prays for dismissal of petition.

Having heard learned Advocate appearing for parties and on perusal of records produced by learned HCGP, following fact emerges: Date on which deceased came to be murdered is 11.02.2011. According to complaint lodged by Venkatesh C.W.-1 it goes to show that incident occurred between 10.20 and 10.30 A.M. and he along with his wife had come out of their house on hearing commotion in the next road and when they went near the spot they watched murder of Vishwa which took place and he saw accused No. l Muniya assaulting deceased Viswa on his head with a long and other accused persons also assaulted him. It is to be noticed at this stage that complainant claims that his wife was accompanying him and his wife has not been examined by I.O. Perusal of complaint would also go to show that except the statement of complainant to the effect that there were three other persons alongwith Muniya and he would be able to identify them on seeing them, there is no mention as to their physical features like approximate age and other incidental details. Complaint came to be lodged at 12.30 P.M. and when inquest was conducted said complainant has given his statement as is recorded in column No. 10 of inquest report, Even in the inquest report he does not give details of accused persons except disclosing the name of Muniya, Said muniya and Ors. were arrested on 17.02.2011 and their statements have been recorded by I.O. In between these days i.e., between 11.02.2011 and 17.02.2011 several other witnesses have been examined by I.0 and eyewitnesses according to the prosecution are C.W.-10, 11 and 12 whose statements came to be recorded on 11.02.2011 and 13.02.2011 (C.W.-11 and 12). A perusal of these statements would go to show that all these three persons were present along with deceased Vishwa. They also stated the manner in which deceased was murdered. Prosecution has also relied upon two other witnesses namely Krishna C.W.-7 and Theresa C.W.-8 who are also said to be eyewitnesses. On perusal of these statements it would also reflect the name of Muniya alone is disclosed and there is no reference to Petitioner or other accused persons either by name or by physical features description. Infact C.W.-7 and 8 would also state that apart 3 to 4 persons who assaulted deceased there were other 3 to 4 persons standing nearby and had surrounded the deceased. This would go to show that there was nearly 6-8 persons. However, complainant does not say so Statement of C.W.-7 and 8 when compared with statement of C.W.-10, 11 and 12 inconsistencies are at large. This requires to be explained by prosecution during the course of trial.

It is noticed that Muniya came to be arrested Oil 17.02.2011 and contention of Learned Counsel for Petitioner is that based on his voluntary statement accused persons have been apprehended. Said submission has to be examined with utmost circumspection in as much as C.W. 10, 11 and 12 have also stated the names of Petitioner and other accused persons in their statement recorded or 11.02.2011 and 13.02.2011 respectively. Hence, said contention deserves to be rejected and accordingly it is rejected.

Another aspect requires to be noticed by this Court is with regard to non-conducting of identification parade. u/s 9 of the Evidence Act facts necessary to explain or entries relevant, facts would be necessary and as such identification parade is required to be conducted. Procedural aspect to be adopted by investigating authority can be found in Chapter 33 of Karnataka Police Manual at para 1359 which reads as under.

1359 1) The role of the witness is very important in establishing the identity of the accused. One of the methods of establishing" the identity is "Test Identification Parade". Which is required u/s 9 of Indian Evidence Act. The idea of the parade is to test the veracity of the witness on the question of his capability to identity from among several persons, an unknown person whom the witness had seen in the context of an offence.

2) When a witness says that he can identify accused persons or others connected with the case under investigation, the Investigating Officer shall record in the case diary their description in details, noting the following points:

(a) their descriptions;

(b) the extent of prevailing light at the time of the offence (daylight, moonlight, flashing of torches, burning kerosene, electric or gas lights, etc.,

(c) details of opportunities of seeing the accused at the time of the offence; anything outstanding in the features or conduct of the accused which impressed him (identifier);

(d) distance from which he saw the accused; and

(e) the extent of time during which he saw the accused.

When a parade has to be held for the identification of a person or persons by a witness, such person or persons shall be carefully kept out of the view of the witnesses, and mingled with a considerable number of other persons of a like class.

In the instant case, witnesses C.W. 7, 8 and 9 and also C.W. 1 have stated that they saw accused persons in the police station as shown by I.O and as such they have identified them. In the said parade no other persons were made to stand and whether parade was in accordance with established principles requires to be explained by prosecution during the course of trial as mandated under Karnataka Police Manual.

One another aspect which also requires to be noticed is that incident occurred on 11.02.2011. inquest was done on 11.02.2011 itself and same has been forwarded to jurisdictional court on 14.02.2011 at 3 P.M. i.e., after 3 days after the incident. Thus, delay frustrates the very object of Section 174 Code of Criminal Procedure and reasons for delay requires to be explained by prosecution during course of trial. At this juncture it would be of relevance to note the judgment of Hon''ble Apex Court in the case of Mohanlal Gangaram Gehani v. State of Maharashtra reported in 1982 SC 839:

(B) Victim not knowing accused prior to occurrence - Test identification parade not held - Accused shown to victim by police before trial - His identification in Court by victim is valueless and cannot be relied upon. V.C. Shukla and Others Vs. State (Delhi Administration), .

Thus, as Shetty did not know the Appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the Appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the Appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straightforward.

For these reasons, therefore, we are unable to place any reliance on the evidence of Shetty so far as the identification of the Appellant is concerned.

It is also made clear that observations and discussions made hereinabove is only for the limited purpose of considering the prayer of Petitioner for bail and trial Court shall consider the case of prosecution during trial untramelled by any observation made hereinabove. Infact this Court has considered prayer of accused A-5 and A-4 and has enlarged them on bail and Petitioner stands on the same footing herein. Hence, on the ground of parity also Petitioner is entitled for being enlarged on bail. In view of the foregoing discussion, I am of considered view that Petitioner is entitled for being enlarged on bail. Hence Petition is allowed. Petitioner is ordered to be enlarged on bail on execution of personal bond for a sum of 50,000/- with two independent solvent sureties for the likesum to the satisfaction of Magistrate/Sessions Court with following conditions:

(i) Petitioner shall appear before jurisdictional police station on every Thursday between 10 A.M and 2 P.M till conclusion of trial.

(ii) Petitioner shall not directly or indirectly mailing any Inducement or threat or promise to any person acquainted with the facts of the case so as to dissuade him or disclosing such facts to the police or court.

(iii) Petitioner shall not indulge in any acts similar to one alleged against him.

(iv) Petitioner shall appear on all the dates of hearing without fail.

(v) Petitioner shall not leave jurisdiction of Sessions Court at Bangalore without express permission.