Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 412 of 2006, Judgment Date: Feb 02, 2016

 |NON-REPORTABLE             |


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 412 OF 2006



NOORAHAMMAD AND ORS                                            ………APPELLANTS

                                     Vs.

STATE OF KARNATAKA                                              ……RESPONDENT




                               J U D G M E N T


V.GOPALA GOWDA, J.
This criminal appeal by special  leave  is  directed  against  the  impugned
judgment and order dated 02.06.2005 passed in Crl. A. No. 184 of 1999(A)  by
the High Court of Karnataka at Bangalore whereby partly allowing the  appeal
filed by the State, the High Court has set aside the acquittal order  passed
by the Trial Court and convicted the appellant nos. 1 to 4 for the  offences
punishable under Sections 304 part II, 324,  353,  379  and  411  read  with
Section 34 of Indian Penal Code, 1860 (for short  the  “IPC”).  However,  it
has upheld the  acquittal  of  all  the  four  appellants  for  the  offence
punishable under Section 24(e) of the Karnataka Forest Act.



Brief facts are stated hereunder to appreciate the rival  legal  contentions
urged on behalf of the parties:

The case of the prosecution is that on 27.06.1995, at around  3.00  am,  the
informant party,  comprising  of  about  10  forest  officials  in  a  jeep,
intercepted a bullock cart on Yallur-Nitagikoppa Kacha Road. It was  alleged
that the appellants herein were present on the said  cart  and  transporting
stolen teak wood log clandestinely and illegally, without a pass or  permit.
It was further alleged that an  altercation  ensued  and  Papasab  (accused-
appellant no.3) attacked V.C. Marambid (PW-8), Forest watcher, with a  club.
The aforesaid attack resulted in a bleeding injury to PW-8. It  was  further
alleged that R.L. Patagar (since  deceased),  RFO  and  G.B.  Nayak  (PW-6),
incharge R.F.O. (Plantation Superintendent) at Hangal tried  to  catch  hold
of the remaining accused, when Noorahammad (accused-appellant  no.1)  picked
up a club from the cart and hit R.L. Patagar on back of  the  head.  It  was
further alleged that Allauddin (accused-appellant no.2) also took up a  club
and beat R.L. Patagar. Further, Tajusab  (accused-appellant  no.4)  took  up
club and beat G.B. Nayak. Thereafter, all the accused  left  the  teak  wood
log       and       escaped        in        the        bullock        cart.


On 27.06.1995 at around 8.00 am, FIR No. 213  of  1995  in  respect  of  the
incident was lodged at the instance of one Timmanna (PW-1) at Hangal  Police
Station which was recorded by Sub Inspector, Maruti Raoji Shindhe (PW-19).



R.L. Patagar, who was undergoing treatment at KMC Hospital,  Hubli,  expired
on 28.06.1995 at about 3.00 pm.



During the course of investigation all the  four  appellants  were  arrested
from their house at Hullatti village and bullock cart and bullocks  used  in
the commission of the said offence were also recovered.



The trial was conducted  by  Additional  Sessions  Judge,  Dharwad  for  the
offences punishable under Sections 302, 324, 353, 379 and 411  of  IPC  read
with Section 34 of IPC and  Section  24(e)  of  the  Karnataka  Forest  Act.
During  trial,  in  order  to  prove  its  case,  prosecution  examined   22
witnesses. All the appellants, in their statement made under Section 313  of
the Cr.P.C., denied all the incriminating  circumstances  appearing  against
them in the prosecution evidence. The Trial  Court  vide  its  judgment  and
order  dated  13.11.1998  acquitted  all  the  accused-appellants  from  the
charges levelled against them.

Aggrieved  by  the  decision  of  the  Trial  Court,  the   respondent-State
preferred Criminal Appeal No. 184  of  1999(A)  before  the  High  Court  of
Karnataka, at Bangalore urging various grounds and prayed for setting  aside
the judgment and order of acquittal passed by the Trial Court.

The High Court vide its judgment and order dated 02.06.2005 has allowed  the
appeal in part and convicted all the  accused-appellants  for  the  offences
punishable under Sections 304 part II, 324,  353,  379  and  411  read  with
Section 34 of IPC. For the offence punishable under Section 304 part  II  of
IPC read with  Section  34  of  IPC,  all  the  four  appellants  have  been
sentenced to undergo rigorous imprisonment for a period of 4 years each  and
to pay a fine of Rs. 1,000/-  each  and  in  default  of  fine,  to  undergo
further rigorous imprisonment for a period of 2  months  each.  No  separate
sentences have been awarded for other offences. However,  the  acquittal  of
all the appellants under Section 24(e) of the Karnataka Forest Act has  been
left undisturbed by the High Court. Aggrieved  by  the  judgment  and  order
passed by the High Court, all the four appellants has preferred this  appeal
praying for their acquittal.



Mr. M. Khairati, the learned counsel for the appellants contended  that  the
High Court has failed to appreciate that  there  is  nothing  on  record  to
establish that R.L. Patagar (deceased) died only due to  head  injury  which
was caused by the appellants and therefore, there  is  no  justification  to
convict them under Section 304 part II read with Section 34 of the  IPC  and
sentence them to undergo rigorous imprisonment for the said offence.



He submitted that the High Court has failed to apply the law  laid  down  by
this Court while setting aside the  judgment  of  acquittal  passed  by  the
Trial Court. He placed strong reliance upon the decision of  this  Court  in
the case of Satvir Singh v. State of Delhi[1], authored by me, wherein  this
Court has laid down the  circumstances  in  which  the  High  Court,  as  an
appellate court, would reverse an order of acquittal  passed  by  the  trial
court. In that case it has been held by  this  Court  that  while  the  High
Court has full power to review, re-appreciate and reconsider  the  evidence,
upon which the order of acquittal is founded, but  should  not  disturb  the
finding of the trial court if two reasonable conclusions  are  possible,  on
the basis of the evidence on record. He further placed strong reliance  upon
the decision of this Court  in  the  case  of  S.  Govindraju  v.  State  of
Karnataka[2], in which Justice S.A. Bobde was one of  the  companion  Judge,
the relevant para 20 of which, reads thus:

“20. It is a settled legal proposition that  in  exceptional  circumstances,
the appellate court, for compelling reasons, should not hesitate to  reverse
a judgment of acquittal passed by  the  court  below,  if  the  findings  so
recorded  by  the  court  below  are  found  to  be  perverse  i.e.  if  the
conclusions arrived at by the court below are contrary to  the  evidence  on
record, or if the court’s entire approach with respect to dealing  with  the
evidence is found to be patently illegal,  leading  to  the  miscarriage  of
justice, or if its judgment is unreasonable and is  based  on  an  erroneous
understanding of the law and of the facts of the case. While doing  so,  the
appellate court must bear in mind the presumption of innocence in favour  of
the accused, and also that an acquittal by the  court  below  bolsters  such
presumption of innocence.”



 It was further contended by the learned  counsel  that  a  perusal  of  the
judgment passed by the  High  Court  shows  that  the  High  Court  has  not
recorded a finding regarding the ignorance of any relevant evidence  by  the
Trial Court. Further, the High Court has also not recorded a finding to  the
effect that some irrelevant evidence has been considered by the Trial  Court
while acquitting the appellants. He further submitted that it  is  also  not
found by the High Court that the Trial  Court  has  proceeded  on  erroneous
understanding of the law or of the facts of the case. Further,  it  is  also
not found that the Trial Court has dealt with the  evidence  in  an  illegal
manner. Hence, the finding of the High Court that the judgment of the  Trial
Court is perverse is an incorrect  finding.  He  placed  reliance  upon  the
decision of this Court in the case of  Sumitomo  Heavy  Industries  Ltd.  v.
ONGC Ltd.[3] to elaborate upon the meaning  of  the  expression  “perverse”.
The relevant para 42 relied upon by the learned counsel reads thus:

“42. Can the findings and the award in the  present  case  be  described  as
perverse? This Court has already laid down as  to  which  finding  would  be
called perverse. It is a finding which is not only  against  the  weight  of
evidence but altogether  against  the  evidence.  This  Court  has  held  in
Triveni Rubber & Plastics v. CCE that a perverse finding  is  one  which  is
based on no evidence or one that no reasonable  person  would  have  arrived
at. Unless it is found that some relevant evidence has not  been  considered
or that certain inadmissible material has been taken into consideration  the
finding cannot be said to be perverse. The legal  position  in  this  behalf
has been recently reiterated in Arulvelu v. State.”



It was further contended that the High Court  has  incorrectly  relied  upon
the testimonies of eye witness-G.B. Nayak (PW-6) and  V.C.  Marambid  (PW-8)
to reverse the judgment of acquittal passed  by  the  Trial  Court.  It  has
failed to take note of some  inherent  inconsistencies,  contradictions  and
improbabilities in the evidence which  make  the  testimonies  of  the  said
witnesses difficult to be believed. The learned counsel, further,  drew  the
attention of this Court towards certain circumstances which the  High  Court
has failed to consider. They are, interalia, as follows:



Timmanna (PW-1), at the instance of whom the FIR was registered,  claims  to
be the eye-witness to the occurrence. In his evidence, he has  claimed  that
he knew the name  of  appellant  no.1  i.e.,  Noorahammad  at  the  time  of
incident. However, he has lodged FIR against unknown persons. He has  failed
to explain this vital contradiction.

The appellants were arrested on 05.07.1995 i.e., after 8 days from the  date
of the occurrence, allegedly on the statement of V.C. Marambid (PW-8)  given
to  the  investigation  officer  under  Section   161   Cr.P.C.   There   is
considerable doubt as to the correctness  of  the  said  statement  as  PW-8
himself in his evidence, has disowned a part  of  the  same.  Therefore,  it
cannot be said, beyond any reasonable doubt, that  the  statement  projected
by the prosecution is the statement which  was  given  by  PW-8  naming  the
appellants.

In view of the fact that the FIR was registered against unknown persons  and
even description of the accused was not  mentioned,  a  Test  Identification
Parade (TIP) ought to have been conducted so as to inspire confidence  about
the identity of the assailants. However, the prosecution  has  not  rendered
any  explanation  as  to  why  said  TIP  was  not   conducted.    In   such
circumstances, dock identification by the witnesses, after 2 years from  the
incident was rightly not relied upon by the Trial Court.

The clubs allegedly used by the appellants to attack  the  forest  officials
should have had blood stains  but  the  same  were  not  sent  for  forensic
examination.

The appellants were alleged to be carrying valuable  teakwood.  As  per  the
prosecution story, after assaulting the prosecution party,  they  fled  away
in the bullock-cart after dropping the teakwood log, which is  difficult  to
believe.

According to the prosecution story, there  were  8-9  forest  officials  and
they had a jeep with them. Only a few of them  were  allegedly  attacked  by
the appellants. When the attackers were fleeing away in a bullock cart,  the
remaining forest officials could have chased and caught them in a jeep.

In normal  circumstances,  when  serious  injuries  were  caused  to  forest
officers and subsequently one of them died the next day and moreover,  names
of the accused-appellants were also made known to the  police  officials  on
29.06.1995, there should have been an immediate arrest  of  the  appellants.
The fact that the accused were  arrested  from  their  house  8  days  later
clearly shows that prosecution had no inkling about the involvement  of  the
appellants and they were subsequently implicated.

V.C. Marambid (PW-8) in his examination-in-chief before the Trial Court  has
stated that Papasab accused-appellant no.3 attacked  him  with   club,  but,
further, he clearly stated thus: “at this point of  time,  I  am  unable  to
identify who that Papasab is amongst these accused persons”.  This  casts  a
grave doubt on the prosecution story.



It was further contended by the learned counsel  by  placing  reliance  upon
the decision of this Court in the case of Sunil Kumar Shambhudayal Gupta  v.
State of Maharashtra[4] that the  trial  court  which  has  the  benefit  of
watching the demeanour of witness is the best judge of  the  credibility  of
the witness. In the present case, the  Trial  Court  after  considering  the
demeanour of the witnesses came to the right conclusion  that  it  would  be
unsafe to place conviction on the testimony  of  the  witnesses  and  hence,
acquitted the appellants.



Per contra, Mr. V.N. Raghupathy,  the  learned  counsel  on  behalf  of  the
respondent-State sought to justify the impugned judgment  and  order  passed
by the High Court on the ground that the same is well  founded  and  is  not
vitiated in law. Therefore, no interference of this  Court  is  required  in
exercise of its appellate jurisdiction.



He  contended  that  the  High  Court  has  rightly  appreciated  both   the
documentary and oral evidence on record in its entirety. The evidence of PW-
6 and PW-8 are fully corroborated by the evidence of PW-1,  PW-2  and  PW-19
in the instant case and therefore, the High Court has rightly set aside  the
Trial  Court’s  decision  and  convicted  the  appellants  for  the  charges
levelled against them.



It was further contended that the prosecution  witnesses,  who  were  forest
officials and at the time of incident they were equipped  with  torches  has
successfully identified the accused-appellants  in  the  court.  He  further
submitted that the circumstances under which the incident  in  question  had
occurred, there could be no other witnesses,  except  the  forest  officials
themselves, who could have witnessed the  said  incident.  Hence,  the  High
Court has rightly found these witnesses credible, reliable and  trustworthy.
Further, there appears to be no reason to falsely implicate  the  appellants
as there was no animus or grudge against them.



Mr. Raghupathy further submitted that the High Court has rightly  relied  on
the evidence of V.C. Marambid (PW-8) to the  extent  he  has  supported  the
case of the prosecution, though he  partially  turned  hostile.  He  further
submitted that it is well settled position of law that  the  evidence  of  a
hostile witness is  not  to  be  rejected  in  totality.  He  placed  strong
reliance upon  the  decision  of  this  Court  in  the  case  of  Rameshbhai
Mohanbhai Koli and Ors. v. State of Gujarat[5],  the  relevant  para  16  of
which reads thus:

“16. It is settled legal proposition that  the  evidence  of  a  prosecution
witness cannot be rejected in toto merely because the prosecution  chose  to
treat him as hostile and cross-examined him. The evidence of such  witnesses
cannot be treated as effaced or washed off the  record  altogether  but  the
same can be accepted to the  extent  that  their  version  is  found  to  be
dependable on a careful scrutiny thereof. (Vide Bhagwan Singh  v.  State  of
Haryana, Rabindra Kumar Dey v. State of  Orissa,  Syad  Akbar  v.  State  of
Karnataka and Khujji v. State of M.P.)”





We have carefully heard both the parties at length and have also  given  our
conscious thought to the material on record and the relevant  provisions  of
law. The question for our consideration is whether the prosecution  evidence
establishes beyond reasonable doubt the commission of the  offences  by  the
accused-appellants under Sections 304 part II, 324, 353, 379 and 411 of  IPC
read with Section 34 of IPC.



A careful reading of the evidence on record clearly highlights the  material
contradictions and discrepancies in the prosecution evidence especially  the
testimonies of G.B. Nayak (PW-6), V.C. Marambid (PW-8) and Timmanna  (PW-1).
In the instant case, the written complaint about the incident  was  made  by
Timmanna (PW-1) on the basis of  which  FIR  was  registered.  In  the  said
written complaint, allegations were made against four  unknown  persons  and
not against the appellants despite the fact that the  complainant  knew  the
name of the accused-appellant no.1 i.e., Noorahammad. This factum  is  clear
from the testimony of the complainant- Timmanna when he deposed  before  the
Trial Court as PW-1. The relevant portion of his evidence reads thus:

“5. In that Complaint, I have  not  mentioned  the  name  of  those  accused
persons. At that time, I knew the name of this A-1. But,  IO  did  not  know
the names of other accused persons. Prior to the incident, I  did  not  know
the name of the accused No.1 also. I came to know the names and  address  of
all  those  accused  persons   correctly   through   that   V.C.   Marambid.
Subsequently, the police have reached  my  further  statement  and  at  that
time, I have told the name and address of all these accused persons.”


The aforesaid loophole in the evidence adduced by the prosecution  has  been
rightly appreciated by the Trial Court holding thus:
“11….His evidence is to the effect that he knew  the  name  of  the  accused
no.1 even at the time of the complaint as per Exh.P-1. According to him,  he
did not know the names and addresses of the culprits and that later  on,  he
came to know the names and addresses  of  the  other  culprits  through  his
subordinate PW-8 V.C. Marambid a forest officer. It is his evidence  that  2
or 3 days later, he came to know the names and addresses  of  the  culprits.
Still, he has maintained throughout that he knew the  name  of  the  accused
no.1 very much at the time of the complaint though he was not aware  of  his
address. When that is so, certainly in his complaint at Exh. P-1,  he  could
have disclosed atleast the name of the accused no.1. On the other  hand,  it
is the clear recital in Exh. P-1 that  the  complainant  did  not  know  the
names and whereabouts of the culprits.”


Further, V.C. Marambid (PW-8) in his evidence has disclosed  the  fact  that
he knew all the accused-appellants, who were residents of Hullatti  Village,
from before the occurrence by virtue of his duty in  Nilgiri  plantation  at
Hassanabadi and Hullatti. If  the  aforesaid  fact  as  deposed  by  him  is
believed to be true, then he should have disclosed  the  identities  of  all
the accused-appellants to the complainant-Timmanna (PW-1)  at  the  time  of
the incident. If not at the time of incident,  then  the  same  should  have
been disclosed to the police officer at the earliest possible  occasion.  In
this regard, the view taken  by  the  Trial  Court  is  correct  as  it  has
assigned valid and cogent reasons for the same. It has rightly held thus:

“12……An attempt is made by the prosecution to impress upon  the  court  that
PW-8  Veerappa  Channappa  Maranbid  knew  about   these   accused   persons
previously. If that was really so, what prevented him  from  disclosing  the
very names and addresses to the complainant at the earliest occasion? It  is
the very evidence of the complainant as PW-1 that  PW-8  Veerappa  Channappa
Maranbid was very much there at the spot at the time  of  the  incident.  It
may be that  PW-8  was  hospitalised  when  the  complaint  was  lodged.  As
revealed, according to PW-1, he complained to the police in the  morning  at
7 or 8 a.m. itself on the very same day. But,Exh.  P-1  complaint  discloses
that it was registered at 8 a.m. It  has  to  be  seen  that  Hangal  Police
Station is not far away from the  hospital  where  the  injured  were  being
treated at that time. The evidence has probablised that  the  said  hospital
is very close to the  said  police  station.  It  is  not  as  if  PW-8  who
according to  him,  was  one  of  the  injured,  had  gone  unconscious.  As
revealed, the injuries sustained by him were simple  in  nature.  Therefore,
when he was very much available in the adjoining hospital,  the  complainant
could have certainly ascertained the names  and  addresses  of  the  alleged
culprits through PW-8 if really PW-8 knew about the names and  addresses  of
the culprits….”





In the instant case, TIP of the accused-appellants should have been  carried
out at the instance of the investigating officer. The High  Court,  in  this
regard, has erred in appreciating the evidence on record  in  the  light  of
the facts and circumstances of  the  present  case.  From  the  material  on
record, it is sufficiently clear that the incident  occurred  in  the  night
around 3.00 am, at a place  where  there  was  no  proper  light.  From  the
material on record it is not clear whether the source of light in  the  form
of torches and  jeep  flash  light  was  sufficient  to  enable  the  forest
officers  to  see  the  accused-appellants  for   the   purpose   of   their
identification in later stage of the case. No doubt, law with regard to  the
importance of TIP  is  well  settled  that  identification  in  court  is  a
substantive piece of evidence and TIP simply  corroborates  the  same.  This
Court in the case of Dana Yadav alias Dahu and Ors.  v.  State  of  Bihar[6]
has elaborated upon the importance of test identification  parade  in  great
details. The relevant para nos. 6, 7 and 8 read thus:

“6. It is also  well  settled  that  failure  to  hold  test  identification
parade, which should be held with reasonable dispatch,  does  not  make  the
evidence of identification in court inadmissible, rather the  same  is  very
much  admissible  in  law.  Question  is,  what  is  its  probative   value?
Ordinarily, identification of an accused for the first time in  court  by  a
witness should not be relied upon, the same  being  from  its  very  nature,
inherently of a weak character, unless it is corroborated  by  his  previous
identification in the test identification parade or any other evidence.  The
purpose of test identification parade is to  test  the  observation,  grasp,
memory, capacity to recapitulate what a witness has seen  earlier,  strength
or trustworthiness of the evidence of identification of an  accused  and  to
ascertain if it can be  used  as  reliable  corroborative  evidence  of  the
witness identifying the  accused  at  his  trial  in  court.  If  a  witness
identifies the accused in court for the first time, the probative  value  of
such uncorroborated evidence becomes minimal so much so that it becomes,  as
a rule of prudence and not law, unsafe to rely on such a piece of  evidence.
We are fortified in our view by a catena of decisions of this Court  in  the
cases of Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa, Budhsen,  Kanan
v. State of Kerala,  Mohanlal  Gangaram  Gehani  v.  State  of  Maharashtra,
Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh,  Jaspal
Singh v. State of Punjab, Raju v. State of  Maharashtra,  Ronny,  George  v.
State of Kerala, Rajesh Govind Jagesha,  State  of  H.P.  v.  Lekh  Raj  and
Ramanbhai Naranbhai Patel v. State of Gujarat.

7. Apart from the ordinary  rule  laid  down  in  the  aforesaid  decisions,
certain exceptions to the same have been carved out where identification  of
an  accused  for  the  first  time  in  court  without   there   being   any
corroboration whatsoever can form the sole basis for his conviction. In  the
case of Budhsen it was observed:

“There may, however, be exceptions to this general rule, when  for  example,
the court is impressed by a particular witness, on whose  testimony  it  can
safely rely, without such or other corroboration.”

8. In the case of State of Maharashtra v. Sukhdev Singh  it  was  laid  down
that if a witness had any particular reason to remember about  the  identity
of an accused, in that event, the case can be brought  under  the  exception
and upon solitary evidence of identification of an accused in court for  the
first time, conviction can be based. In the case of Ronny it has  been  laid
down that where the witness had a chance to interact  with  the  accused  or
that in  a  case  where  the  witness  had  an  opportunity  to  notice  the
distinctive features of the accused which lends assurance to  his  testimony
in court, the evidence of identification in court  for  the  first  time  by
such a witness cannot be thrown away merely because no  test  identification
parade was held. In that case, the accused concerned had  a  talk  with  the
identifying witnesses for about 7/8 minutes.  In  these  circumstances,  the
conviction of the accused, on the basis  of  sworn  testimony  of  witnesses
identifying for the first time in court without the same being  corroborated
either by previous identification in the test identification parade  or  any
other evidence, was upheld by this Court.  In  the  case  of  Rajesh  Govind
Jagesha it was laid down that the absence of test identification parade  may
not be fatal if the accused  is  sufficiently  described  in  the  complaint
leaving no doubt in the mind of the court regarding his  involvement  or  is
arrested on  the  spot  immediately  after  the  occurrence  and  in  either
eventuality, the evidence of  witnesses  identifying  the  accused  for  the
first time in court can form the  basis  for  conviction  without  the  same
being corroborated by any other evidence  and,  accordingly,  conviction  of
the accused was upheld by this Court. In the case of State of H.P.  v.  Lekh
Raj it was observed (at SCC p. 253, para 3) that
“test identification is considered a safe  rule  of  prudence  to  generally
look for corroboration of the sworn testimony of witnesses in  court  as  to
the identity of the accused who are strangers to them. There  may,  however,
be exceptions to  this  general  rule,  when,  for  example,  the  court  is
impressed by a particular witness on whose  testimony  it  can  safely  rely
without such or other corroboration”.
In that case, laying down  the  aforesaid  law,  acquittal  of  one  of  the
accused by the High Court was converted into conviction  by  this  Court  on
the basis of identification by  a  witness  for  the  first  time  in  court
without the same being corroborated by any other evidence. In  the  case  of
Ramanbhai Naranbhai Patel it was observed:

“It, therefore, cannot be held, as tried to be submitted by learned  counsel
for the appellants, that in the absence of  a  test  identification  parade,
the  evidence  of  an  eyewitness  identifying  the  accused  would   become
inadmissible or totally useless; whether the evidence deserves any  credence
or not would always depend on the facts and circumstances of each case.”
The Court further observed:
“the fact remains that these eyewitnesses were seriously  injured  and  they
could have easily seen the faces of the persons assaulting  them  and  their
appearance  and  identity  would  well  remain  imprinted  in  their   minds
especially when they were assaulted in broad daylight”.
In these circumstances, conviction of the accused was upheld  on  the  basis
of solitary evidence of identification by a witness for the  first  time  in
court.”

Another important fact which the High Court  has  failed  to  appreciate  is
that the prosecution witness identified the accused-appellants in court  for
the first time, during trial, in the year 1997-98 and the incident  occurred
in the year  1995.  Thus,  after  considering  some  undisputed  facts  like
occurrence of incident at night, at a place with improper lighting  and  all
the accused-appellants were not known to the  forest  officers,  except  one
present at the place of incident, there should have been  TIP  conducted  at
the instance of the investigating officer. Therefore, the identification  of
the accused-appellants by the prosecution witness for the first  time  after
a gap of more than  2  years  from  the  date  of  incident  is  not  beyond
reasonable doubt, the same should be seen with suspicion.

Further, all the accused-appellants were arrested on 05.07.1995  from  their
home at Hullatti village. Prosecution has failed to explain the delay  of  8
days on the part of the investigating agency  to  make  arrest  of  all  the
accused-appellants, when the incident occurred on 27.06.1995  and  allegedly
V.C. Marambid (PW-8) in his statement  under  Section  161  of  Cr.P.C.  had
already revealed the identity of all the culprits involved in the  incident.
Though the prosecution tried to  explain  the  delay  in  making  arrest  by
pressing upon the ground that the accused-appellants  were  absconding.  But
the same was rightly not believed by the Trial Court. If  they  were  really
absconding, then they should have remained  absconding.  Their  arrest  from
their home casts a shadow of doubt on the prosecution  story  rendering  the
same to be concocted and dubious. Rather the aforesaid fact,  on  the  other
hand, fortifies the plea taken by all the accused-appellants that they  have
been falsely implicated in the case.



The High Court has further failed to appreciate some other  important  facts
which create reasonable suspicion and shadow of doubt  in  the  truthfulness
of the prosecution story, namely, instead of  confronting  with  the  forest
officers, who were on patrolling duty in jeep, the accused-appellants  would
have tried to conceal their presence  either  by  hiding  themselves  or  by
running away. Further, the forest officers,  including  the  driver  of  the
jeep, were 10 in number and on the other hand,  accused-appellants  were  4.
It is difficult to believe that the forest officers made no frantic  efforts
to nab the culprits when they allegedly assaulted them. The forest  officers
could  have  easily  apprehended  the  culprits  had  they  tried,  as  they
outnumbered them. Further, it is clear from the record that all  the  forest
officers were deployed on patrolling duty  to  keep  a  check  on  the  then
increasing forest offences. It means incident, like  in  the  instant  case,
could reasonably be anticipated. It has  been  rightly  appreciated  by  the
Trial Court that under such circumstances, they should have been armed  with
weapons atleast for their own safety.  As  per  record,  when  the  incident
occurred all the forest officers  were  found  to  be  without  weapons.  It
cannot be believed that the forest officers on patrolling duty were  without
any weapon. In this regard, the High Court has erred in observing  that  the
Forest Department being poorly equipped failed to provide  weapons  to  meet
the situations, like in the instant case.  Further,  the  accused-appellants
were caught with a teak wood log in  their  bullock  cart.  The  prosecution
version is that after the assault, all the accused-appellants  ran  away  in
their bullock cart leaving behind the said wooden log. It has  rightly  been
observed  by  the  Trial  Court  that  if  the  accused-appellants  had  any
intention to carry away the said wooden log, they would have easily done  so
as after the alleged assault,  they  had  no  hurdle,  whatsoever,  in  that
regard. Thus, the aforesaid story certainly casts a shadow of doubt  on  the
truthfulness of the prosecution case and renders the same to be unreliable.



The reasoning given by the High Court in its judgment and  order  in  itself
is contrary. On the one  hand,  it  has  observed  that  when  the  accused-
appellants started assaulting the forest officers,  none  of  the  officers,
who were unarmed, dared to go near the culprits with a view to  catch  them,
thus, placing the accused-appellants in a dominating position. On the  other
hand, it has further observed that the accused-appellants  had  dropped  the
said wooden log to make their bullock cart light in weight with  a  view  to
move swiftly. This Court finds the aforesaid reasons assigned  by  the  High
Court to be incorrect. Once the  accused-appellants  were  in  a  dominating
position, none of the forest officers could go near them for the purpose  of
nabbing them. Thus, there can be no justification  for  leaving  behind  the
said wooden log. They could have easily carried it away with them,  if  they
had the intention of doing so. The prosecution has  failed  to  explain  the
reason behind the accused-appellants not taking away  the  said  wooden  log
with them.



In the post mortem report of the deceased, the presence of a surgical  wound
on the left side of the head,  measuring  13cms  long  extending  vertically
upwards from point 1.5cms above and in  front  of  left  ear,  has  remained
unexplained by the prosecution, is another lacuna in the  prosecution  story
which casts a shadow of doubt on the same and the benefit  of  which  should
certainly go to the accused-appellants.



There are many more material  contradictions  in  the  prosecution  evidence
which the High Court  failed  to  notice,  namely,  Kanayya  (PW-5),  Forest
Guard, an eye-witness to the incident, in his examination before  the  Trial
Court, has stated that there were some teakwood logs present  on  the  cart.
However, as per the prosecution story there was one teakwood log  discovered
in the cart by the forest officials. Further, V.C. Marambid  (PW-8)  in  his
examination before the Trial Court stated thus:

“At that time, one these accused persons very strongly hit on my  head  with
a club and I fell down. There was a bleeding injury on my  head  on  account
of that blow. Accused Papasab had so bet me with that club.  At  this  point
of time, I am unable to identify who that Papasab is amongst  these  accused
persons. I got up and went to the jeep and sat inside the jeep. Since I  had
received a severe blow on my  head  I  did  not  notice  what  had  happened
thereafter. However, myself and G.B.Nayak were taken to Hangal in that  jeep
for treatment. That G.B.Nayak had also sustained  injury.  On  reaching  the
hospital at Hangal, I came to know that R.L.Patagar was also  assaulted  and
injured. I did not know how exactly  that  T.G.Nayak  and  that  R.L.Patagar
sustained injuries.”



He did not  support  the  prosecution  story  and  was  declared  a  hostile
witness. In his cross-examination by Public Prosecutor he stated thus:

“It is not true to say that I have stated  before  the  police  that  I  saw
G.B.Nayak being assaulted by accused Tajusab with club and that  Patagar  is
being assaulted by the accused Noorahamed and Allauddin with clubs and  that
on account of these blows that G.B.Nayak had sustained bleeding  injury  and
that Pategar also sustained injury and that the accused  persons  thereafter
dropped that wooden log at that spot and ran away in that cart…”


The High Court has failed to appreciate another important piece of  evidence
that when the injuries sustained  by  the  deceased  were  more  serious  in
nature than the injuries sustained by other two forest officers, which  were
minor in nature, then the deceased should have been taken to hospital  first
or atleast along with other two injured forest officials, who were taken  to
hospital in the first instance. In this regard, the Trial Court has  rightly
observed thus:

“It  is  the  evidence  of  the  PW-1,4  and  PW-6  that  the  condition  of
Ramakrishna Lingappa Patagar was more serious than  the  other  two  injured
persons at the spot. But, it is strange that the other two  injured  persons
namely, PW-6 and PW-8 were taken to the hospital at the  first  instance  in
the jeep leaving that Ramakrishna Lingappa Patagar at the spot.  It  is  the
case of  the  prosecution  that  after  return,  that  Ramakrishna  Lingappa
Patagar was taken in that jeep, to the hospital.”





The recovery of bullocks and cart used  by  the  accused-appellants  at  the
time of incident is also under a cloud of suspicion as the panch witness-PW-
11 has turned hostile with  regard  to  the  alleged  recovery.  Hence,  the
prosecution evidence in this regard cannot be relied upon.



Thus, for the aforesaid reasons, the evidence adduced by the prosecution  to
support its version does not prove  beyond  reasonable  doubt  the  offences
levelled against all the accused-appellants. This Court in the case  of  Raj
Kumar Singh v. State of Rajasthan[7] has held thus:

“21. Suspicion, however grave it may be, cannot take  the  place  of  proof,
and there is a large difference between something that “may be”  proved  and
“will be proved”. In a criminal  trial,  suspicion  no  matter  how  strong,
cannot and must not be permitted to take place of proof.  This  is  for  the
reason that the mental distance between “may be”  and  “must  be”  is  quite
large and divides vague conjectures from sure  conclusions.  In  a  criminal
case, the court has a duty to ensure that mere conjectures or  suspicion  do
not take the place of legal proof. The large distance between “may be”  true
and  “must  be”  true,  must  be  covered  by  way  of  clear,  cogent   and
unimpeachable evidence produced by the prosecution,  before  an  accused  is
condemned as a convict, and the basic and golden rule must  be  applied.  In
such cases, while keeping in mind the distance between  “may  be”  true  and
“must  be”  true,  the  court  must  maintain  the  vital  distance  between
conjectures and sure conclusions to be arrived  at,  on  the  touchstone  of
dispassionate judicial scrutiny based  upon  a  complete  and  comprehensive
appreciation of all features of  the  case,  as  well  as  the  quality  and
credibility of the evidence brought on record. The court  must  ensure  that
miscarriage of justice is avoided and if the facts and  circumstances  of  a
case so demand, then the benefit of doubt must  be  given  to  the  accused,
keeping in mind that a reasonable doubt is not an imaginary,  trivial  or  a
merely probable doubt, but a fair  doubt  that  is  based  upon  reason  and
common sense.”
                  (emphasis supplied by this Court)

In the instant case, the material  contradictions  in  prosecution  evidence
cast a shadow of doubt upon  the  prosecution  story  and  render  the  same
unreliable and not trustworthy in the eyes of law, which the High Court  has
failed to appreciate. Therefore, the impugned judgment and order  passed  by
the High Court must be set aside by this Court in exercise of its  appellate
jurisdiction.

 |NON-REPORTABLE             |


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 412 OF 2006



NOORAHAMMAD AND ORS                                            ………APPELLANTS

                                     Vs.

STATE OF KARNATAKA                                              ……RESPONDENT




                               J U D G M E N T


V.GOPALA GOWDA, J.
This criminal appeal by special  leave  is  directed  against  the  impugned
judgment and order dated 02.06.2005 passed in Crl. A. No. 184 of 1999(A)  by
the High Court of Karnataka at Bangalore whereby partly allowing the  appeal
filed by the State, the High Court has set aside the acquittal order  passed
by the Trial Court and convicted the appellant nos. 1 to 4 for the  offences
punishable under Sections 304 part II, 324,  353,  379  and  411  read  with
Section 34 of Indian Penal Code, 1860 (for short  the  “IPC”).  However,  it
has upheld the  acquittal  of  all  the  four  appellants  for  the  offence
punishable under Section 24(e) of the Karnataka Forest Act.



Brief facts are stated hereunder to appreciate the rival  legal  contentions
urged on behalf of the parties:

The case of the prosecution is that on 27.06.1995, at around  3.00  am,  the
informant party,  comprising  of  about  10  forest  officials  in  a  jeep,
intercepted a bullock cart on Yallur-Nitagikoppa Kacha Road. It was  alleged
that the appellants herein were present on the said  cart  and  transporting
stolen teak wood log clandestinely and illegally, without a pass or  permit.
It was further alleged that an  altercation  ensued  and  Papasab  (accused-
appellant no.3) attacked V.C. Marambid (PW-8), Forest watcher, with a  club.
The aforesaid attack resulted in a bleeding injury to PW-8. It  was  further
alleged that R.L. Patagar (since  deceased),  RFO  and  G.B.  Nayak  (PW-6),
incharge R.F.O. (Plantation Superintendent) at Hangal tried  to  catch  hold
of the remaining accused, when Noorahammad (accused-appellant  no.1)  picked
up a club from the cart and hit R.L. Patagar on back of  the  head.  It  was
further alleged that Allauddin (accused-appellant no.2) also took up a  club
and beat R.L. Patagar. Further, Tajusab  (accused-appellant  no.4)  took  up
club and beat G.B. Nayak. Thereafter, all the accused  left  the  teak  wood
log       and       escaped        in        the        bullock        cart.


On 27.06.1995 at around 8.00 am, FIR No. 213  of  1995  in  respect  of  the
incident was lodged at the instance of one Timmanna (PW-1) at Hangal  Police
Station which was recorded by Sub Inspector, Maruti Raoji Shindhe (PW-19).



R.L. Patagar, who was undergoing treatment at KMC Hospital,  Hubli,  expired
on 28.06.1995 at about 3.00 pm.



During the course of investigation all the  four  appellants  were  arrested
from their house at Hullatti village and bullock cart and bullocks  used  in
the commission of the said offence were also recovered.



The trial was conducted  by  Additional  Sessions  Judge,  Dharwad  for  the
offences punishable under Sections 302, 324, 353, 379 and 411  of  IPC  read
with Section 34 of IPC and  Section  24(e)  of  the  Karnataka  Forest  Act.
During  trial,  in  order  to  prove  its  case,  prosecution  examined   22
witnesses. All the appellants, in their statement made under Section 313  of
the Cr.P.C., denied all the incriminating  circumstances  appearing  against
them in the prosecution evidence. The Trial  Court  vide  its  judgment  and
order  dated  13.11.1998  acquitted  all  the  accused-appellants  from  the
charges levelled against them.

Aggrieved  by  the  decision  of  the  Trial  Court,  the   respondent-State
preferred Criminal Appeal No. 184  of  1999(A)  before  the  High  Court  of
Karnataka, at Bangalore urging various grounds and prayed for setting  aside
the judgment and order of acquittal passed by the Trial Court.

The High Court vide its judgment and order dated 02.06.2005 has allowed  the
appeal in part and convicted all the  accused-appellants  for  the  offences
punishable under Sections 304 part II, 324,  353,  379  and  411  read  with
Section 34 of IPC. For the offence punishable under Section 304 part  II  of
IPC read with  Section  34  of  IPC,  all  the  four  appellants  have  been
sentenced to undergo rigorous imprisonment for a period of 4 years each  and
to pay a fine of Rs. 1,000/-  each  and  in  default  of  fine,  to  undergo
further rigorous imprisonment for a period of 2  months  each.  No  separate
sentences have been awarded for other offences. However,  the  acquittal  of
all the appellants under Section 24(e) of the Karnataka Forest Act has  been
left undisturbed by the High Court. Aggrieved  by  the  judgment  and  order
passed by the High Court, all the four appellants has preferred this  appeal
praying for their acquittal.



Mr. M. Khairati, the learned counsel for the appellants contended  that  the
High Court has failed to appreciate that  there  is  nothing  on  record  to
establish that R.L. Patagar (deceased) died only due to  head  injury  which
was caused by the appellants and therefore, there  is  no  justification  to
convict them under Section 304 part II read with Section 34 of the  IPC  and
sentence them to undergo rigorous imprisonment for the said offence.



He submitted that the High Court has failed to apply the law  laid  down  by
this Court while setting aside the  judgment  of  acquittal  passed  by  the
Trial Court. He placed strong reliance upon the decision of  this  Court  in
the case of Satvir Singh v. State of Delhi[1], authored by me, wherein  this
Court has laid down the  circumstances  in  which  the  High  Court,  as  an
appellate court, would reverse an order of acquittal  passed  by  the  trial
court. In that case it has been held by  this  Court  that  while  the  High
Court has full power to review, re-appreciate and reconsider  the  evidence,
upon which the order of acquittal is founded, but  should  not  disturb  the
finding of the trial court if two reasonable conclusions  are  possible,  on
the basis of the evidence on record. He further placed strong reliance  upon
the decision of this Court  in  the  case  of  S.  Govindraju  v.  State  of
Karnataka[2], in which Justice S.A. Bobde was one of  the  companion  Judge,
the relevant para 20 of which, reads thus:

“20. It is a settled legal proposition that  in  exceptional  circumstances,
the appellate court, for compelling reasons, should not hesitate to  reverse
a judgment of acquittal passed by  the  court  below,  if  the  findings  so
recorded  by  the  court  below  are  found  to  be  perverse  i.e.  if  the
conclusions arrived at by the court below are contrary to  the  evidence  on
record, or if the court’s entire approach with respect to dealing  with  the
evidence is found to be patently illegal,  leading  to  the  miscarriage  of
justice, or if its judgment is unreasonable and is  based  on  an  erroneous
understanding of the law and of the facts of the case. While doing  so,  the
appellate court must bear in mind the presumption of innocence in favour  of
the accused, and also that an acquittal by the  court  below  bolsters  such
presumption of innocence.”



 It was further contended by the learned  counsel  that  a  perusal  of  the
judgment passed by the  High  Court  shows  that  the  High  Court  has  not
recorded a finding regarding the ignorance of any relevant evidence  by  the
Trial Court. Further, the High Court has also not recorded a finding to  the
effect that some irrelevant evidence has been considered by the Trial  Court
while acquitting the appellants. He further submitted that it  is  also  not
found by the High Court that the Trial  Court  has  proceeded  on  erroneous
understanding of the law or of the facts of the case. Further,  it  is  also
not found that the Trial Court has dealt with the  evidence  in  an  illegal
manner. Hence, the finding of the High Court that the judgment of the  Trial
Court is perverse is an incorrect  finding.  He  placed  reliance  upon  the
decision of this Court in the case of  Sumitomo  Heavy  Industries  Ltd.  v.
ONGC Ltd.[3] to elaborate upon the meaning  of  the  expression  “perverse”.
The relevant para 42 relied upon by the learned counsel reads thus:

“42. Can the findings and the award in the  present  case  be  described  as
perverse? This Court has already laid down as  to  which  finding  would  be
called perverse. It is a finding which is not only  against  the  weight  of
evidence but altogether  against  the  evidence.  This  Court  has  held  in
Triveni Rubber & Plastics v. CCE that a perverse finding  is  one  which  is
based on no evidence or one that no reasonable  person  would  have  arrived
at. Unless it is found that some relevant evidence has not  been  considered
or that certain inadmissible material has been taken into consideration  the
finding cannot be said to be perverse. The legal  position  in  this  behalf
has been recently reiterated in Arulvelu v. State.”



It was further contended that the High Court  has  incorrectly  relied  upon
the testimonies of eye witness-G.B. Nayak (PW-6) and  V.C.  Marambid  (PW-8)
to reverse the judgment of acquittal passed  by  the  Trial  Court.  It  has
failed to take note of some  inherent  inconsistencies,  contradictions  and
improbabilities in the evidence which  make  the  testimonies  of  the  said
witnesses difficult to be believed. The learned counsel, further,  drew  the
attention of this Court towards certain circumstances which the  High  Court
has failed to consider. They are, interalia, as follows:



Timmanna (PW-1), at the instance of whom the FIR was registered,  claims  to
be the eye-witness to the occurrence. In his evidence, he has  claimed  that
he knew the name  of  appellant  no.1  i.e.,  Noorahammad  at  the  time  of
incident. However, he has lodged FIR against unknown persons. He has  failed
to explain this vital contradiction.

The appellants were arrested on 05.07.1995 i.e., after 8 days from the  date
of the occurrence, allegedly on the statement of V.C. Marambid (PW-8)  given
to  the  investigation  officer  under  Section   161   Cr.P.C.   There   is
considerable doubt as to the correctness  of  the  said  statement  as  PW-8
himself in his evidence, has disowned a part  of  the  same.  Therefore,  it
cannot be said, beyond any reasonable doubt, that  the  statement  projected
by the prosecution is the statement which  was  given  by  PW-8  naming  the
appellants.

In view of the fact that the FIR was registered against unknown persons  and
even description of the accused was not  mentioned,  a  Test  Identification
Parade (TIP) ought to have been conducted so as to inspire confidence  about
the identity of the assailants. However, the prosecution  has  not  rendered
any  explanation  as  to  why  said  TIP  was  not   conducted.    In   such
circumstances, dock identification by the witnesses, after 2 years from  the
incident was rightly not relied upon by the Trial Court.

The clubs allegedly used by the appellants to attack  the  forest  officials
should have had blood stains  but  the  same  were  not  sent  for  forensic
examination.

The appellants were alleged to be carrying valuable  teakwood.  As  per  the
prosecution story, after assaulting the prosecution party,  they  fled  away
in the bullock-cart after dropping the teakwood log, which is  difficult  to
believe.

According to the prosecution story, there  were  8-9  forest  officials  and
they had a jeep with them. Only a few of them  were  allegedly  attacked  by
the appellants. When the attackers were fleeing away in a bullock cart,  the
remaining forest officials could have chased and caught them in a jeep.

In normal  circumstances,  when  serious  injuries  were  caused  to  forest
officers and subsequently one of them died the next day and moreover,  names
of the accused-appellants were also made known to the  police  officials  on
29.06.1995, there should have been an immediate arrest  of  the  appellants.
The fact that the accused were  arrested  from  their  house  8  days  later
clearly shows that prosecution had no inkling about the involvement  of  the
appellants and they were subsequently implicated.

V.C. Marambid (PW-8) in his examination-in-chief before the Trial Court  has
stated that Papasab accused-appellant no.3 attacked  him  with   club,  but,
further, he clearly stated thus: “at this point of  time,  I  am  unable  to
identify who that Papasab is amongst these accused persons”.  This  casts  a
grave doubt on the prosecution story.



It was further contended by the learned counsel  by  placing  reliance  upon
the decision of this Court in the case of Sunil Kumar Shambhudayal Gupta  v.
State of Maharashtra[4] that the  trial  court  which  has  the  benefit  of
watching the demeanour of witness is the best judge of  the  credibility  of
the witness. In the present case, the  Trial  Court  after  considering  the
demeanour of the witnesses came to the right conclusion  that  it  would  be
unsafe to place conviction on the testimony  of  the  witnesses  and  hence,
acquitted the appellants.



Per contra, Mr. V.N. Raghupathy,  the  learned  counsel  on  behalf  of  the
respondent-State sought to justify the impugned judgment  and  order  passed
by the High Court on the ground that the same is well  founded  and  is  not
vitiated in law. Therefore, no interference of this  Court  is  required  in
exercise of its appellate jurisdiction.



He  contended  that  the  High  Court  has  rightly  appreciated  both   the
documentary and oral evidence on record in its entirety. The evidence of PW-
6 and PW-8 are fully corroborated by the evidence of PW-1,  PW-2  and  PW-19
in the instant case and therefore, the High Court has rightly set aside  the
Trial  Court’s  decision  and  convicted  the  appellants  for  the  charges
levelled against them.



It was further contended that the prosecution  witnesses,  who  were  forest
officials and at the time of incident they were equipped  with  torches  has
successfully identified the accused-appellants  in  the  court.  He  further
submitted that the circumstances under which the incident  in  question  had
occurred, there could be no other witnesses,  except  the  forest  officials
themselves, who could have witnessed the  said  incident.  Hence,  the  High
Court has rightly found these witnesses credible, reliable and  trustworthy.
Further, there appears to be no reason to falsely implicate  the  appellants
as there was no animus or grudge against them.



Mr. Raghupathy further submitted that the High Court has rightly  relied  on
the evidence of V.C. Marambid (PW-8) to the  extent  he  has  supported  the
case of the prosecution, though he  partially  turned  hostile.  He  further
submitted that it is well settled position of law that  the  evidence  of  a
hostile witness is  not  to  be  rejected  in  totality.  He  placed  strong
reliance upon  the  decision  of  this  Court  in  the  case  of  Rameshbhai
Mohanbhai Koli and Ors. v. State of Gujarat[5],  the  relevant  para  16  of
which reads thus:

“16. It is settled legal proposition that  the  evidence  of  a  prosecution
witness cannot be rejected in toto merely because the prosecution  chose  to
treat him as hostile and cross-examined him. The evidence of such  witnesses
cannot be treated as effaced or washed off the  record  altogether  but  the
same can be accepted to the  extent  that  their  version  is  found  to  be
dependable on a careful scrutiny thereof. (Vide Bhagwan Singh  v.  State  of
Haryana, Rabindra Kumar Dey v. State of  Orissa,  Syad  Akbar  v.  State  of
Karnataka and Khujji v. State of M.P.)”





We have carefully heard both the parties at length and have also  given  our
conscious thought to the material on record and the relevant  provisions  of
law. The question for our consideration is whether the prosecution  evidence
establishes beyond reasonable doubt the commission of the  offences  by  the
accused-appellants under Sections 304 part II, 324, 353, 379 and 411 of  IPC
read with Section 34 of IPC.



A careful reading of the evidence on record clearly highlights the  material
contradictions and discrepancies in the prosecution evidence especially  the
testimonies of G.B. Nayak (PW-6), V.C. Marambid (PW-8) and Timmanna  (PW-1).
In the instant case, the written complaint about the incident  was  made  by
Timmanna (PW-1) on the basis of  which  FIR  was  registered.  In  the  said
written complaint, allegations were made against four  unknown  persons  and
not against the appellants despite the fact that the  complainant  knew  the
name of the accused-appellant no.1 i.e., Noorahammad. This factum  is  clear
from the testimony of the complainant- Timmanna when he deposed  before  the
Trial Court as PW-1. The relevant portion of his evidence reads thus:

“5. In that Complaint, I have  not  mentioned  the  name  of  those  accused
persons. At that time, I knew the name of this A-1. But,  IO  did  not  know
the names of other accused persons. Prior to the incident, I  did  not  know
the name of the accused No.1 also. I came to know the names and  address  of
all  those  accused  persons   correctly   through   that   V.C.   Marambid.
Subsequently, the police have reached  my  further  statement  and  at  that
time, I have told the name and address of all these accused persons.”


The aforesaid loophole in the evidence adduced by the prosecution  has  been
rightly appreciated by the Trial Court holding thus:
“11….His evidence is to the effect that he knew  the  name  of  the  accused
no.1 even at the time of the complaint as per Exh.P-1. According to him,  he
did not know the names and addresses of the culprits and that later  on,  he
came to know the names and addresses  of  the  other  culprits  through  his
subordinate PW-8 V.C. Marambid a forest officer. It is his evidence  that  2
or 3 days later, he came to know the names and addresses  of  the  culprits.
Still, he has maintained throughout that he knew the  name  of  the  accused
no.1 very much at the time of the complaint though he was not aware  of  his
address. When that is so, certainly in his complaint at Exh. P-1,  he  could
have disclosed atleast the name of the accused no.1. On the other  hand,  it
is the clear recital in Exh. P-1 that  the  complainant  did  not  know  the
names and whereabouts of the culprits.”


Further, V.C. Marambid (PW-8) in his evidence has disclosed  the  fact  that
he knew all the accused-appellants, who were residents of Hullatti  Village,
from before the occurrence by virtue of his duty in  Nilgiri  plantation  at
Hassanabadi and Hullatti. If  the  aforesaid  fact  as  deposed  by  him  is
believed to be true, then he should have disclosed  the  identities  of  all
the accused-appellants to the complainant-Timmanna (PW-1)  at  the  time  of
the incident. If not at the time of incident,  then  the  same  should  have
been disclosed to the police officer at the earliest possible  occasion.  In
this regard, the view taken  by  the  Trial  Court  is  correct  as  it  has
assigned valid and cogent reasons for the same. It has rightly held thus:

“12……An attempt is made by the prosecution to impress upon  the  court  that
PW-8  Veerappa  Channappa  Maranbid  knew  about   these   accused   persons
previously. If that was really so, what prevented him  from  disclosing  the
very names and addresses to the complainant at the earliest occasion? It  is
the very evidence of the complainant as PW-1 that  PW-8  Veerappa  Channappa
Maranbid was very much there at the spot at the time  of  the  incident.  It
may be that  PW-8  was  hospitalised  when  the  complaint  was  lodged.  As
revealed, according to PW-1, he complained to the police in the  morning  at
7 or 8 a.m. itself on the very same day. But,Exh.  P-1  complaint  discloses
that it was registered at 8 a.m. It  has  to  be  seen  that  Hangal  Police
Station is not far away from the  hospital  where  the  injured  were  being
treated at that time. The evidence has probablised that  the  said  hospital
is very close to the  said  police  station.  It  is  not  as  if  PW-8  who
according to  him,  was  one  of  the  injured,  had  gone  unconscious.  As
revealed, the injuries sustained by him were simple  in  nature.  Therefore,
when he was very much available in the adjoining hospital,  the  complainant
could have certainly ascertained the names  and  addresses  of  the  alleged
culprits through PW-8 if really PW-8 knew about the names and  addresses  of
the culprits….”





In the instant case, TIP of the accused-appellants should have been  carried
out at the instance of the investigating officer. The High  Court,  in  this
regard, has erred in appreciating the evidence on record  in  the  light  of
the facts and circumstances of  the  present  case.  From  the  material  on
record, it is sufficiently clear that the incident  occurred  in  the  night
around 3.00 am, at a place  where  there  was  no  proper  light.  From  the
material on record it is not clear whether the source of light in  the  form
of torches and  jeep  flash  light  was  sufficient  to  enable  the  forest
officers  to  see  the  accused-appellants  for   the   purpose   of   their
identification in later stage of the case. No doubt, law with regard to  the
importance of TIP  is  well  settled  that  identification  in  court  is  a
substantive piece of evidence and TIP simply  corroborates  the  same.  This
Court in the case of Dana Yadav alias Dahu and Ors.  v.  State  of  Bihar[6]
has elaborated upon the importance of test identification  parade  in  great
details. The relevant para nos. 6, 7 and 8 read thus:

“6. It is also  well  settled  that  failure  to  hold  test  identification
parade, which should be held with reasonable dispatch,  does  not  make  the
evidence of identification in court inadmissible, rather the  same  is  very
much  admissible  in  law.  Question  is,  what  is  its  probative   value?
Ordinarily, identification of an accused for the first time in  court  by  a
witness should not be relied upon, the same  being  from  its  very  nature,
inherently of a weak character, unless it is corroborated  by  his  previous
identification in the test identification parade or any other evidence.  The
purpose of test identification parade is to  test  the  observation,  grasp,
memory, capacity to recapitulate what a witness has seen  earlier,  strength
or trustworthiness of the evidence of identification of an  accused  and  to
ascertain if it can be  used  as  reliable  corroborative  evidence  of  the
witness identifying the  accused  at  his  trial  in  court.  If  a  witness
identifies the accused in court for the first time, the probative  value  of
such uncorroborated evidence becomes minimal so much so that it becomes,  as
a rule of prudence and not law, unsafe to rely on such a piece of  evidence.
We are fortified in our view by a catena of decisions of this Court  in  the
cases of Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa, Budhsen,  Kanan
v. State of Kerala,  Mohanlal  Gangaram  Gehani  v.  State  of  Maharashtra,
Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh,  Jaspal
Singh v. State of Punjab, Raju v. State of  Maharashtra,  Ronny,  George  v.
State of Kerala, Rajesh Govind Jagesha,  State  of  H.P.  v.  Lekh  Raj  and
Ramanbhai Naranbhai Patel v. State of Gujarat.

7. Apart from the ordinary  rule  laid  down  in  the  aforesaid  decisions,
certain exceptions to the same have been carved out where identification  of
an  accused  for  the  first  time  in  court  without   there   being   any
corroboration whatsoever can form the sole basis for his conviction. In  the
case of Budhsen it was observed:

“There may, however, be exceptions to this general rule, when  for  example,
the court is impressed by a particular witness, on whose  testimony  it  can
safely rely, without such or other corroboration.”

8. In the case of State of Maharashtra v. Sukhdev Singh  it  was  laid  down
that if a witness had any particular reason to remember about  the  identity
of an accused, in that event, the case can be brought  under  the  exception
and upon solitary evidence of identification of an accused in court for  the
first time, conviction can be based. In the case of Ronny it has  been  laid
down that where the witness had a chance to interact  with  the  accused  or
that in  a  case  where  the  witness  had  an  opportunity  to  notice  the
distinctive features of the accused which lends assurance to  his  testimony
in court, the evidence of identification in court  for  the  first  time  by
such a witness cannot be thrown away merely because no  test  identification
parade was held. In that case, the accused concerned had  a  talk  with  the
identifying witnesses for about 7/8 minutes.  In  these  circumstances,  the
conviction of the accused, on the basis  of  sworn  testimony  of  witnesses
identifying for the first time in court without the same being  corroborated
either by previous identification in the test identification parade  or  any
other evidence, was upheld by this Court.  In  the  case  of  Rajesh  Govind
Jagesha it was laid down that the absence of test identification parade  may
not be fatal if the accused  is  sufficiently  described  in  the  complaint
leaving no doubt in the mind of the court regarding his  involvement  or  is
arrested on  the  spot  immediately  after  the  occurrence  and  in  either
eventuality, the evidence of  witnesses  identifying  the  accused  for  the
first time in court can form the  basis  for  conviction  without  the  same
being corroborated by any other evidence  and,  accordingly,  conviction  of
the accused was upheld by this Court. In the case of State of H.P.  v.  Lekh
Raj it was observed (at SCC p. 253, para 3) that
“test identification is considered a safe  rule  of  prudence  to  generally
look for corroboration of the sworn testimony of witnesses in  court  as  to
the identity of the accused who are strangers to them. There  may,  however,
be exceptions to  this  general  rule,  when,  for  example,  the  court  is
impressed by a particular witness on whose  testimony  it  can  safely  rely
without such or other corroboration”.
In that case, laying down  the  aforesaid  law,  acquittal  of  one  of  the
accused by the High Court was converted into conviction  by  this  Court  on
the basis of identification by  a  witness  for  the  first  time  in  court
without the same being corroborated by any other evidence. In  the  case  of
Ramanbhai Naranbhai Patel it was observed:

“It, therefore, cannot be held, as tried to be submitted by learned  counsel
for the appellants, that in the absence of  a  test  identification  parade,
the  evidence  of  an  eyewitness  identifying  the  accused  would   become
inadmissible or totally useless; whether the evidence deserves any  credence
or not would always depend on the facts and circumstances of each case.”
The Court further observed:
“the fact remains that these eyewitnesses were seriously  injured  and  they
could have easily seen the faces of the persons assaulting  them  and  their
appearance  and  identity  would  well  remain  imprinted  in  their   minds
especially when they were assaulted in broad daylight”.
In these circumstances, conviction of the accused was upheld  on  the  basis
of solitary evidence of identification by a witness for the  first  time  in
court.”

Another important fact which the High Court  has  failed  to  appreciate  is
that the prosecution witness identified the accused-appellants in court  for
the first time, during trial, in the year 1997-98 and the incident  occurred
in the year  1995.  Thus,  after  considering  some  undisputed  facts  like
occurrence of incident at night, at a place with improper lighting  and  all
the accused-appellants were not known to the  forest  officers,  except  one
present at the place of incident, there should have been  TIP  conducted  at
the instance of the investigating officer. Therefore, the identification  of
the accused-appellants by the prosecution witness for the first  time  after
a gap of more than  2  years  from  the  date  of  incident  is  not  beyond
reasonable doubt, the same should be seen with suspicion.

Further, all the accused-appellants were arrested on 05.07.1995  from  their
home at Hullatti village. Prosecution has failed to explain the delay  of  8
days on the part of the investigating agency  to  make  arrest  of  all  the
accused-appellants, when the incident occurred on 27.06.1995  and  allegedly
V.C. Marambid (PW-8) in his statement  under  Section  161  of  Cr.P.C.  had
already revealed the identity of all the culprits involved in the  incident.
Though the prosecution tried to  explain  the  delay  in  making  arrest  by
pressing upon the ground that the accused-appellants  were  absconding.  But
the same was rightly not believed by the Trial Court. If  they  were  really
absconding, then they should have remained  absconding.  Their  arrest  from
their home casts a shadow of doubt on the prosecution  story  rendering  the
same to be concocted and dubious. Rather the aforesaid fact,  on  the  other
hand, fortifies the plea taken by all the accused-appellants that they  have
been falsely implicated in the case.



The High Court has further failed to appreciate some other  important  facts
which create reasonable suspicion and shadow of doubt  in  the  truthfulness
of the prosecution story, namely, instead of  confronting  with  the  forest
officers, who were on patrolling duty in jeep, the accused-appellants  would
have tried to conceal their presence  either  by  hiding  themselves  or  by
running away. Further, the forest officers,  including  the  driver  of  the
jeep, were 10 in number and on the other hand,  accused-appellants  were  4.
It is difficult to believe that the forest officers made no frantic  efforts
to nab the culprits when they allegedly assaulted them. The forest  officers
could  have  easily  apprehended  the  culprits  had  they  tried,  as  they
outnumbered them. Further, it is clear from the record that all  the  forest
officers were deployed on patrolling duty  to  keep  a  check  on  the  then
increasing forest offences. It means incident, like  in  the  instant  case,
could reasonably be anticipated. It has  been  rightly  appreciated  by  the
Trial Court that under such circumstances, they should have been armed  with
weapons atleast for their own safety.  As  per  record,  when  the  incident
occurred all the forest officers  were  found  to  be  without  weapons.  It
cannot be believed that the forest officers on patrolling duty were  without
any weapon. In this regard, the High Court has erred in observing  that  the
Forest Department being poorly equipped failed to provide  weapons  to  meet
the situations, like in the instant case.  Further,  the  accused-appellants
were caught with a teak wood log in  their  bullock  cart.  The  prosecution
version is that after the assault, all the accused-appellants  ran  away  in
their bullock cart leaving behind the said wooden log. It has  rightly  been
observed  by  the  Trial  Court  that  if  the  accused-appellants  had  any
intention to carry away the said wooden log, they would have easily done  so
as after the alleged assault,  they  had  no  hurdle,  whatsoever,  in  that
regard. Thus, the aforesaid story certainly casts a shadow of doubt  on  the
truthfulness of the prosecution case and renders the same to be unreliable.



The reasoning given by the High Court in its judgment and  order  in  itself
is contrary. On the one  hand,  it  has  observed  that  when  the  accused-
appellants started assaulting the forest officers,  none  of  the  officers,
who were unarmed, dared to go near the culprits with a view to  catch  them,
thus, placing the accused-appellants in a dominating position. On the  other
hand, it has further observed that the accused-appellants  had  dropped  the
said wooden log to make their bullock cart light in weight with  a  view  to
move swiftly. This Court finds the aforesaid reasons assigned  by  the  High
Court to be incorrect. Once the  accused-appellants  were  in  a  dominating
position, none of the forest officers could go near them for the purpose  of
nabbing them. Thus, there can be no justification  for  leaving  behind  the
said wooden log. They could have easily carried it away with them,  if  they
had the intention of doing so. The prosecution has  failed  to  explain  the
reason behind the accused-appellants not taking away  the  said  wooden  log
with them.



In the post mortem report of the deceased, the presence of a surgical  wound
on the left side of the head,  measuring  13cms  long  extending  vertically
upwards from point 1.5cms above and in  front  of  left  ear,  has  remained
unexplained by the prosecution, is another lacuna in the  prosecution  story
which casts a shadow of doubt on the same and the benefit  of  which  should
certainly go to the accused-appellants.



There are many more material  contradictions  in  the  prosecution  evidence
which the High Court  failed  to  notice,  namely,  Kanayya  (PW-5),  Forest
Guard, an eye-witness to the incident, in his examination before  the  Trial
Court, has stated that there were some teakwood logs present  on  the  cart.
However, as per the prosecution story there was one teakwood log  discovered
in the cart by the forest officials. Further, V.C. Marambid  (PW-8)  in  his
examination before the Trial Court stated thus:

“At that time, one these accused persons very strongly hit on my  head  with
a club and I fell down. There was a bleeding injury on my  head  on  account
of that blow. Accused Papasab had so bet me with that club.  At  this  point
of time, I am unable to identify who that Papasab is amongst  these  accused
persons. I got up and went to the jeep and sat inside the jeep. Since I  had
received a severe blow on my  head  I  did  not  notice  what  had  happened
thereafter. However, myself and G.B.Nayak were taken to Hangal in that  jeep
for treatment. That G.B.Nayak had also sustained  injury.  On  reaching  the
hospital at Hangal, I came to know that R.L.Patagar was also  assaulted  and
injured. I did not know how exactly  that  T.G.Nayak  and  that  R.L.Patagar
sustained injuries.”



He did not  support  the  prosecution  story  and  was  declared  a  hostile
witness. In his cross-examination by Public Prosecutor he stated thus:

“It is not true to say that I have stated  before  the  police  that  I  saw
G.B.Nayak being assaulted by accused Tajusab with club and that  Patagar  is
being assaulted by the accused Noorahamed and Allauddin with clubs and  that
on account of these blows that G.B.Nayak had sustained bleeding  injury  and
that Pategar also sustained injury and that the accused  persons  thereafter
dropped that wooden log at that spot and ran away in that cart…”


The High Court has failed to appreciate another important piece of  evidence
that when the injuries sustained  by  the  deceased  were  more  serious  in
nature than the injuries sustained by other two forest officers, which  were
minor in nature, then the deceased should have been taken to hospital  first
or atleast along with other two injured forest officials, who were taken  to
hospital in the first instance. In this regard, the Trial Court has  rightly
observed thus:

“It  is  the  evidence  of  the  PW-1,4  and  PW-6  that  the  condition  of
Ramakrishna Lingappa Patagar was more serious than  the  other  two  injured
persons at the spot. But, it is strange that the other two  injured  persons
namely, PW-6 and PW-8 were taken to the hospital at the  first  instance  in
the jeep leaving that Ramakrishna Lingappa Patagar at the spot.  It  is  the
case of  the  prosecution  that  after  return,  that  Ramakrishna  Lingappa
Patagar was taken in that jeep, to the hospital.”





The recovery of bullocks and cart used  by  the  accused-appellants  at  the
time of incident is also under a cloud of suspicion as the panch witness-PW-
11 has turned hostile with  regard  to  the  alleged  recovery.  Hence,  the
prosecution evidence in this regard cannot be relied upon.



Thus, for the aforesaid reasons, the evidence adduced by the prosecution  to
support its version does not prove  beyond  reasonable  doubt  the  offences
levelled against all the accused-appellants. This Court in the case  of  Raj
Kumar Singh v. State of Rajasthan[7] has held thus:

“21. Suspicion, however grave it may be, cannot take  the  place  of  proof,
and there is a large difference between something that “may be”  proved  and
“will be proved”. In a criminal  trial,  suspicion  no  matter  how  strong,
cannot and must not be permitted to take place of proof.  This  is  for  the
reason that the mental distance between “may be”  and  “must  be”  is  quite
large and divides vague conjectures from sure  conclusions.  In  a  criminal
case, the court has a duty to ensure that mere conjectures or  suspicion  do
not take the place of legal proof. The large distance between “may be”  true
and  “must  be”  true,  must  be  covered  by  way  of  clear,  cogent   and
unimpeachable evidence produced by the prosecution,  before  an  accused  is
condemned as a convict, and the basic and golden rule must  be  applied.  In
such cases, while keeping in mind the distance between  “may  be”  true  and
“must  be”  true,  the  court  must  maintain  the  vital  distance  between
conjectures and sure conclusions to be arrived  at,  on  the  touchstone  of
dispassionate judicial scrutiny based  upon  a  complete  and  comprehensive
appreciation of all features of  the  case,  as  well  as  the  quality  and
credibility of the evidence brought on record. The court  must  ensure  that
miscarriage of justice is avoided and if the facts and  circumstances  of  a
case so demand, then the benefit of doubt must  be  given  to  the  accused,
keeping in mind that a reasonable doubt is not an imaginary,  trivial  or  a
merely probable doubt, but a fair  doubt  that  is  based  upon  reason  and
common sense.”
                  (emphasis supplied by this Court)

In the instant case, the material  contradictions  in  prosecution  evidence
cast a shadow of doubt upon  the  prosecution  story  and  render  the  same
unreliable and not trustworthy in the eyes of law, which the High Court  has
failed to appreciate. Therefore, the impugned judgment and order  passed  by
the High Court must be set aside by this Court in exercise of its  appellate
jurisdiction.



For the reasons stated supra, this criminal appeal is allowed. The  impugned
judgment and order passed by the High Court is set aside. All  the  accused-
appellants are acquitted of all the charges levelled against them. The  bail
bonds shall stand discharged.

 

                                                    …………………………………………………………J.
                                                           [V. GOPALA GOWDA]

 


                                                    …………………………………………………………J.
                                                                [S.A. BOBDE]
New Delhi,
February 2, 2016
ITEM NO.1B-For Judgment      COURT NO.10               SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  412/2006

NOORAHAMMAD AND ORS                                Appellant(s)

                                VERSUS

STATE OF KARNATAKA                                 Respondent(s)

Date : 02/02/2016 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)  Mr. Gaurav Agrawal, Adv.
                        Mr. M. Khairati, Adv.
                        Ms. Sunita Gautam, Adv.
                     Mr. Irshad Ahmad,Adv.

For Respondent(s)
                     Mr. V. N. Raghupathy,Adv.

                       Hon'ble Mr. Justice  V.Gopala  Gowda  pronounced  the
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  S.A.
Bobde.
                       The appeal is allowed in terms  of  the  signed  Non-
Reportable Judgment. The impugned judgment and  order  passed  by  the  High
Court is set aside. All the accused-appellants  are  acquitted  of  all  the
charges levelled against them. The bail bonds shall stand discharged.

|(VINOD KUMAR)                          | |(CHANDER BALA)                        |
|COURT MASTER                           | |COURT MASTER                          |

      (Signed Non-Reportable Judgment is placed on the file)
-----------------------
[1]   [2]  (2014) 13 SCC 143
[3]   [4]  (2013) 15 SCC 315
[5]   [6]  (2010) 11 SCC 296
[7]   [8]  (2010) 13 SCC 657
[9]   [10]  (2011) 11 SCC 111
[11]  [12]  (2002) 7 SCC 295
[13]  [14]  (2013) 5 SCC 722