Mahammad Shariff and Anr @APPELLANT@Hash State of Karnataka

These two appeals are preferred by accused Nos.3 and 2, challenging the judgment and order of conviction and sentence dated 24/25.4.2014

passed by the XIII Additional Fast Track Court, Bangalore City in SC.No.953/2009.

Brief case of the prosecution is that on 13.3.2009 at about 10.45 p.m. when the deceased was talking over phone in front of Popular Car Center in

3rd Cross, Maruthinagar, Nagarabhavi, Bengaluru by parking his motorcycle bearing Regn.No.KA-02-EL-8878, all the three accused persons came

on RX motorbike bearing Regn.No.KA-02-EF.3095 and snatched the mobile phone of the deceased Somesh and at that time accused No.1 inflicted

injury with knife on right side of the neck and backside of left thigh, accused No.2 also inflicted injury below the right knee and caused grievous

injuries and took away Nokia mobile phone after boarding the motorcycle which they have brought and the same was ridden by accused No.3. It is

further case of the prosecution that the said intimation was given to the complainant who went to the hospital, where he came to know that the injured

Somesh has succumbed to the injuries. He went to Chandralayout Police Station and filed a complaint. On the basis of the complaint at Ex.P1, a case

was registered in Crime No.81/2009 for the offence punishable under Section 302 r/w. 34 of IPC. After completion of investigation, the investigating

agency laid the charge sheet against the accused persons. Committal Court committed the case and thereafter the Sessions Court took cognizance

and after hearing both the sides framed the charge which was read over and explained to the accused persons, they pleaded not guilty and as they

wanted to face the trial, the trial was fixed.

In order to prove its case, the prosecution examined 26 witnesses and got marked 27 Exhibits with sub-markings and 18 Materials Objects. After

closure of the evidence of the prosecution the statement of the accused persons was recorded under Section 313 of Cr.P.C. by putting incriminating

materials against them, but they denied the same. Accused Persons have not examined any witnesses, but got marked one Exhibit at Ex.D1. After

hearing both sides, the trial Court passed the impugned judgment and order convicting the accused persons for the offences punishable under Sections

397, 302 r/w. Section 34 of IPC. Assailing the same, accused No.3 and 2 are before this Court.

The main grounds urged by Sri B.N.Jagadessh, learned counsel for accused No.3, appellant in Criminal Appeal No.612/2014 are that earlier the

FIR was registered against unknown persons and the only allegation against accused No.3 was that he was only riding the motorcycle and there were

no overt acts attributed against him. Even the recovery of the motorcycle which is said to have been done at the instance of accused No.3 is not the

motorcycle which was used for commission of alleged offence. Even though such material is available before the trial Court, the trial Court has

wrongly convicted accused No.3. He further submitted that though PW.13, Head Constable and PW.15 the wife of PW.13 said to have seen the

accused persons, immediately they have not intimated the said fact to the Police Station which is at a distance of less than one kilometer. He further

submitted that the address of PWs.13 and 15 given in the statement recorded under Section 161 of Cr.P.C. and the address given at the time of

deposition are different. At the first instance they have stated at 1st Main and at the time of deposition, they have given the address as 5th Main,

under such circumstances, it clearly goes to show that their house is not situated near the place of incident and there is no chance of they seeing the

alleged incident. He further submitted that PW.15 was sitting outside the house along with some of her friends and PW.13 was inside the house and

PW.13 has come out only after hearing the screaming voice of PW.15. PW.15 has reached the place prior to PW.13. She has deposed that she has

not seen the face of the accused persons, then under such circumstances, reliance of the evidence of these witnesses identifying the accused persons

for the first time in the Court without there being Test Identification Parade is not safe and credible to convict the accused persons. The presence of

these witnesses itself is doubtful. The recovery of motorcycle at the instance of the accused is not at all proved. The Investigating Officer has clearly

admitted in his evidence that the motorcycle which has been seized is not pertaining to this case.

 Under such circumstances, even the recovery of the motorcycle has also not been proved in accordance with law. He further submitted that though

there were 7 to 8 persons present near the place of incident, they have not been examined by the Investigating Officer for the reasons best known to

them. He further submitted that in front of the house of PW.13 two more persons were also present and they have also not been cited as witnesses,

which clearly goes to show that investigating agency has deliberately avoided independent witnesses and planted their own witnesses. He further

submitted that the recovery of mobile phone said to have been done under Ex.P6 is also not tallying with IMEI number of the mobile phone of the

deceased. The said phone was one with Murali and the same has been recovered at the instance of accused No.1. There is no material to show as to

when and how the said phone was possessed by the said Murali. He further submitted that seizure of articles were not produced by the prosecution so

also the report of FSL and serology report. The said lacuna directly hits the case of the prosecution. He further submitted that the prosecution has

utterly failed to prove the guilt of the accused. The trial Court without proper appreciation of the facts and law has wrongly convicted the accused.

Hence, he prayed to allow the appeal by acquitting the accused.

Sri B.Anand, learned amicus curiae appearing for accused No.2, appellant in Criminal Appeal No.544/2014, supporting the arguments of the learned

counsel for accused No.3 submitted that the evidence of the prosecution clearly goes to show that prior to the marriage, deceased was having love

affair with a girl and even after his marriage the extra-marital affair was continued. The evidence which has been produced also indicates the fact

that the deceased and his friend were consuming alcohol and at that time he received the phone call from the said woman and thereafter he went out

and immediately thereafter the alleged incident has taken place. Under such circumstances, commission of the offence from the persons who called

the deceased also cannot be overruled. He further submitted that even though there is no worth believable material before the trial Court, it has

wrongly convicted the accused persons. On these grounds, learned counsel appearing for the appellants-accused No.3 prayed for allowing the appeal

by setting aside the judgment and order of the trial Court and to acquit the accused persons.

Per contra, Sri Vijayakumar Majage, learned Additional SPP appearing for the respondent-State has vehemently argued by submitting that failure to

hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. In

support of the said contention, he relied upon a decision of the Hon’ble Apex Court in the case of Mulla & another Vs. State of Uttar Pradesh,

reported in (2010)3 SCC 508. He further submitted that PWs.13 and 15 are the main witnesses who have identified the accused persons at the time of

alleged incident and even subsequently during the course of investigation they have also identified the accused persons, then under such circumstances

the identification of the accused persons at the time of alleged crime has been proved by the prosecution. He further submitted that when once there

is a consistent evidence of the eye witnesses regarding the commission of offence, the Court can rely upon the same and to convict the accused. He

further submitted that the recovery of the motorcycle and the knife at the instance of accused No.1 and the motorcycle which was used for

commission of offence by accused No.3 has also been proved by the prosecution. He further submitted that the mobile phones robbed by the accused

persons from the possession of the deceased have also been recovered, under such circumstances, the case of the prosecution is to be believed and

the accused persons are liable to be convicted. The trial Court after considering the entire evidence and material on record has rightly convicted the

appellants-accused and there are no good grounds made out by the appellants to interfere with the impugned judgment and order. Hence, he prayed

that the same deserves to be confirmed by dismissing the appeal.

We have carefully and cautiously gone through the grounds urged in appeal memos and submission made by the learned counsel for the parties and

also the evidence and the documents produced in this behalf. As could be seen from the records it is not in dispute that the death of the deceased

Somesh is homicidal death. The only question which is for consideration by this Court is that whether the trial Court has properly and correctly

appreciated the evidence while holding that the accused are guilty of the alleged offence. In order to prove its case, the prosecution has mainly relied

upon the evidence of PWs.13 and 15. PW.13 is the Head Constable who has deposed that on 13.3.2009 after finishing his day duty, he came to his

house and at about 10.30 p.m., his wife and children were sitting outside the house as it was summer and there was too hot inside the house. At that

time, his wife PW.15 made hue and cry and called him saying that three persons were assaulting one person who was standing on the road and asked

him to come soon. Immediately, he came out and noticed that in front of Ganesh Timbers at corner, a bajaj splender vehicle was parked and a person

was sitting on the said vehicle and two persons were assaulting the said person and out of them one person was assaulting right leg and the person

who was standing on the right side assaulted with a weapon on the right leg and another person assaulted on the left leg with a sharp weapon and

when he went by shouting, another person who was sitting on the motorbike took these two persons and they all went on the motorbike towards

Nagarabhavi. He further deposed that they provided water to the injured and sent him to Maruthi Nursing Home in an auto. The bajaj splender vehicle

bearing Regn.No.KA-02-EL-8878 lying there was belonging to the injured Somesh. He further deposed that he has seen the incident in the street light.

Subsequently he saw the said persons in the Police Station and they are the same persons before the Court. During the course of cross-examination,

he has admitted that during night hours, so many persons and vehicles move on the said road and at a distance of 200 meters, there is an autorikshaw

stand and there are so many residential houses situated in the 5th Main Road. He further admitted that at the time of galata he was having a mobile

phone and along with him his son also came to the place of incident and by the time they went there 7 to 8 persons were there and vehicles and public

also gathered. It has been elicited that he was knowing that the accused persons had come on the motorcycle and he did not give any information to

the police immediately after the incident and he attended his duties on the next day. He further deposed that apart from himself and PW.15, other

independent witnesses were also present. He further deposed that prior to this case he was not knowing who is accused No.3. He further deposed

that he was knowing as to which number he has to make a call during emergency and he was also knowing the phone number of Chandralayout

Police Station. He was also having the knowledge that in cognizable cases, immediately he has to inform the police.

PW.15 has also reiterated the evidence of PW.13. During the course of her cross-examination, she admitted that apart from herself two more

women were sitting outside the house and Chandralayout Police Station is at a distance of one kilometer from their house and they have not informed

Chandralayout Police on the same day. On the same day police had come to the place of incident and enquired with them.

On going through the evidence of these two witnesses, though the prosecution has examined them as eye witnesses, as could be seen from the

evidence of PW.15, she has deposed that by the time they went to the spot, all the three accused persons went on motorbike and she has given only

the description about the three accused persons. She has further deposed that the accused persons were not known to them.

It is the first contention of the learned counsel for the appellants-accused that at the time of evidence PW.13 has given the address as 1st

‘A’ Main Road, whereas in the statement recorded before the police he has given the address as 5th Main Road and as such the presence of

PWs.13 and 15 itself is doubtful and if they were residing in 5th Main Road, then under such circumstances, there is no chance of they seeing the

alleged incident. On going through the statement recorded under Section 161 of Cr.P.C. and evidence, there is inconsistency with regard to address of

these witnesses. If it is taken as 5th Main Road, then under such circumstances, the house of these witnesses is not near the place of incident. PW.13

has deposed that he does not know who is accused No.3 prior to the case in question. If really he has seen accused No.3 sitting on the motorbike at

the time of incident, he would have deposed to that effect.

Be that as it may, the case of the prosecution is that PW.15 was sitting along with her children and two more ladies and only after hearing

screaming voice of PW.15, PW.13 went to the place of incident. However, if we analyze the evidence of PW.15 she has deposed that by the time

they went to the place, all the three accused persons went on the motorbike. When PW.15 is the first person who has seen the accused persons

assaulting the deceased and PW.13 also went along with PW.15, under such circumstance, PW.13 seeing the accused persons is also too remote. In

that light, these two witnesses cannot be treated as an eye witnesses who said to have seen the accused persons.

When PWs.13 and 15 have not clearly seen the accused persons and PW.15 has given only the description of the accused persons who were

assaulting the deceased, then under such circumstances, the contention of the learned counsel for the appellants that the Investigating Officer ought to

have held the test identification parade is having force. In order to substantiate this contention, learned counsel for the appellants have relied upon the

decisions of the Hon’ble Apex Court in Budhsen & another Vs. State of U.P. - 1970(2)SCC 128; Rameshwar Singh Vs. State of Jammu &

Kashmir - 1971(2) SCC 715; and Ravi @ Ravichandran Vs. State Rep. by Inspector of Police - (2007)15 SCC 372. On the other hand, learned

Additional SPP has relied upon the decision in Mulla & another Vs. State of Uttar Pradesh (cited supra)

We have cautiously and carefully gone through the ratio laid down in all the decisions quoted by the learned counsel appearing for both parties. It

is no doubt true that substantive evidence of identification of an accused is the one made in the Court even though no test identification parade has

been held. But it is further observed that when the FIR has been lodged against unknown persons and the said persons were not known and the

witnesses were also not sure whether they had seen the accused persons prior to the incident in question, then under such circumstances, test

identification parade in terms of Section 9 of the Indian Evidence Act is necessary as held by the Hon’ble Apex Court. On analyzing the evidence

of the Investigating Officer, he has not stated anything as to why he did not hold the test identification parade immediately after apprehension of the

accused persons. PW.13 has deposed that after the apprehension, he came to know the names of accused persons as Manjunatha, Rishikesh and the

raider of the motorcycle Mohammed Sharieff. During the course of his cross-examination, he has deposed that when he was working, he came to

know that the accused persons have been arrested and at that time he was also present in the Police Station on duty then under such circumstances,

the identification of the accused persons in the Court is not for the first time who has already identified and was knowing the accused persons. The

purpose of holding test identification parade is to test the veracity of the witness in regard to his capability of identifying the persons who were

unknown to him and the witnesses were not very sure as to whether they had seen the accused who is before the Court and he is the same person

who was present at the time of alleged incident. On going through the evidence of PWs.13 and 15 they have not deposed that they were acquainted

with the accused persons or they were knowing them prior to the alleged incident or they have seen the accused persons from the nearest distance.

Under such circumstances, not holding the test identification parade in this case will be fatal to the case of the prosecution.

Even as could be seen from the conduct of PW.13 who is a Head Constable and he has seen the incident at about 10.30 p.m. and Chadralayout

Police Station is at a distance of one kilometer and he was also knowing that if a cognizable offence has been taken place, same has to be intimated to

the police. Being a Head Constable admittedly in his presence the alleged incident has taken place he has not intimated the police about the incident

though he was having a mobile phone with him and he was knowing the phone number of the Police Station. In that light, the conduct of PW.13 is also

not natural and probable so as to accept the fact that he was present at the time of the alleged incident and he has seen the accused persons

assaulting the deceased with deadly weapons. In that light, the evidence of PW.13 does not repose any confidence of this Court. Even as per the

evidence of PW.15, the wife of PW.13, she has also not seen the accused persons and by the time she went to the place, the accused persons went

on the motorcycle, then under such circumstances, her evidence also does not appear to be trustworthy so as to bring home the guilt of the accused

persons beyond all reasonable doubt.

Even though PW.15 has deposed that herself along with two more women were sitting in front of the house along with her children, their

statements have not been recorded and they have not been examined before the Court for the reasons best known to the prosecution. In this behalf,

there is a lacuna on the part of the investigation agency.

The next contention of the learned counsel for the appellants-accused is that though the recovery is said to have been done at the instance of

accused No.3 as per Ex.P5, during the course of cross-examination, the Investigating Officer-PW.26 has clearly admitted that Yamaha motorcycle

seized under Ex.P5 is not pertaining to the present case and no recoveries have been made from accused No.3. When the Investigating Officer

himself has deposed that the motorcycle which was recovered is not pertaining to this case and no other articles have been seized from accused No.3,

then under such circumstances, there was no recovery made in so far as accused No.3 is concerned. The records also reveal that the Investigating

Officer has deposed that after apprehension of accused No.3 on 22.3.2009 he has recorded their voluntary statement, wherein accused No.1 has

stated that he would produce the mobile phone N-70 and the same was seized by drawing a mahazar at Ex.P6 and the said mobile phone was having

IMEI Number 355655000359770. But, as could be seen from the seizure mahazar at Ex.P6, though the Nokia mobile phone N-70 said to have been

seized by the police from the possession of accused No.1-Manjunatha, IMEI number pertaining to the said mobile has been mentioned in Ex.P6 as

356294014237640. On going through the evidence of PWs.26 and Ex.P6 under which the recovery of the mobile phone which is said to have been

done with reference of IMEI number, there is inconsistency. Under such circumstances, even the recovery of mobile phone from accused No.1 is

also not proved by the prosecution with worth believable material. Even as could be seen from the evidence of PWs.9, 4 and other witnesses though

they have deposed with regard to recovery of gold articles, in the instant case it is not the case of prosecution that the accused persons have also

snatched the gold articles from the deceased. It is only the case of the prosecution that they have snatched the mobile phone. Even assuming that

recovery of gold articles has been seized as per Ex.P8, the said recovery is not pertaining to this case and in that light it does not help the case of the

prosecution so as to bring home the guilt of the accused persons, beyond all reasonable doubt.

We have carefully and cautiously gone through the entire evidence on record, including the Exhibits and the judgment and order passed by the trial

Court. Though the trial Court has considered all the aspects, while appreciating the evidence of PWs.13, 15 and 26 it has come to a wrong conclusion

and has erroneously passed the impugned judgment and order. In view of the aforesaid detailed discussion, the said judgment and order passed by the

trial Court is liable to be set aside and accordingly the same is set aside. Hence, we pass the following:-

 Appeals are allowed. The judgment and order of conviction and sentence dated 24/25.04.2014 passed by the Presiding Officer, Fast Track Court

â€" XIII, Bengaluru in S.C.No.953/2009 is set aside. The appellants/ accused Nos.3 and 2 are acquitted of all the charges levelled against them.

 The concerned prison authorities are hereby directed to release the appellants/accused Nos.3 and 2 forthwith, if they are not required in any other

case.