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.
2.2. 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. 3.3. 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
JUDGMENT recorded by Sub Inspector, Maruti Raoji Shindhe
(PW-19).
4.4. R.L. Patagar, who was undergoing treatment at KMC
Hospital, Hubli, expired on 28.06.1995 at about 3.00
pm.
5.5. 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.
6.6. 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. JUDGMENT 7.7. 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.
8.8. 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 JUDGMENT 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.
9.9. 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.
10.10. 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 Delhi1,
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.JUDGMENTIn 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 Karnataka2, 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.”
11.11. 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: JUDGMENT “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.”
12.12. 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
JUDGMENT failed to consider. They are, interalia, as follows:
a)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. b)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. c)In view of the fact that the FIR was registered
against unknown persons and even description of JUDGMENT 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. d)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. e)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. f)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
JUDGMENT fleeing away in a bullock cart, the remaining
forest officials could have chased and caught
them in a jeep. g)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.
h)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.
13.13. 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
Maharashtra4 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.
14.14. 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.
15.15. 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.
16.16. 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.
17.17. 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 JUDGMENT
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 Gujarat5, 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.)”
18.18. 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 411JUDGMENTof IPC read with Section 34 of IPC.
19.19. 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 JUDGMENT 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.”
20.20. 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.
JUDGMENT 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 JUDGMENT 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….”
21.21. 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. JUDGMENT
This Court in the case of Dana Yadav alias Dahu and
Ors. v. State of Bihar6 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 JUDGMENTof 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 thisCourt 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
JUDGMENTincident 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.
22.22. 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
JUDGMENT 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.
23.23. 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 JUDGMENT 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 JUDGMENT 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.
24.24. 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 JUDGMENT 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.
25.25. 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.
26.26. 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 JUDGMENT 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 JUDGMENT 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…”
27.27. 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.”
28.28. The recovery of bullocks and cart used by the
accused-appellants at the time of incident is also
JUDGMENT 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.
29.29. 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 Rajasthan7 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, JUDGMENT 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)
30.30. 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.
31.31. For the reasons stated supra, this criminal appeal is
allowed. The impugned judgment and order passed by the
JUDGMENT High Court is set aside. All the accused-appellants are
acquitted of all the charges levelled against them. The
bail bonds shall stand discharged.
[S.A. BOBDE] New Delhi, February 2, 2016
ITEM NO.1B-For Judgment COURT NO.10 SECTION IIB
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.
(Signed Non-Reportable Judgment is placed on the file)