dharwad bench dated this the 1 st - karjudgmenthck.kar.nic.in/judgments/bitstream/123456789/...one...
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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 100005/2014
BETWEEN:
1. RAMESH S/O. GIDDAPPA WADDAR,AGED ABOUT 29 YEARS,OCC: LORRY MAINTENANCE,R/O. RAMALINGANA GUDI,CHITRAKERI STREET,
HOSPET.(UNDERGOING SENTENCE).
2. BABA PATEL S/O. MOHAMMEDPATEL BIRADAR,AGED ABOUT 24 YEARS,
OCC: DRIVER, R/O. GUDNAL,MUDDEBIHAL TALUK,DISTRICT : BIJAPUR,AT PRESENT R.T.O. OFFICE,BTR NAGAR, HOSPET.,(UNDERGOING SENTENCE).
…APPELLANTS
(BY SRIYUTHS VIJAY S. CHINIWAR & MAHIBOOB S.HALLI, ADVOCATES)
AND:
THE STATE OF MUNIRABAD POLICE,
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REP. BY STATE PUBLIC PROSECUTOR,DHARWAD.
…RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. STATE PUBLICPROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION374(2) OF CODE OF CRIMINAL PROCEDURE, PRAYING TO
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENTAND ORDER OF CONVICTION PASSED BY LEARNEDDISTRICT AND SESSIONS JUDGE, KOPPAL IN S.C.NO.9/2013 DATED 11.12.2013, CONVICTING THEAPPELLANTS FOR THE OFFENCE PUNISHABLE UNDERSECTION 392 OF I.P.C. AND ETC.
I.A. NO.1/2014 IS FILED FOR SUSPENSION OFSENTENCE.
THIS CRIMINAL APPEAL A/W. I.A. COMING ON FORDICTATING JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The appellants are accused Nos.1 and 2 in S.C.
No.9/2013 on the file of Sessions Judge, Koppal, have
preferred this appeal against the judgment of conviction and
sentence passed by Sessions convicting and sentencing the
appellants to undergo simple imprisonment for a period of
10 years and to pay fine of Rs.5,000/- for the offence
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punishable under Section 392 of the Indian Penal Code,
1860 (hereinafter referred to as ‘I.P.C.’ for brevity)
2. Heard arguments of learned counsel for the
appellants and learned State Public Prosecutor for
respondent.
3. Learned counsel for the appellants strenuously
contends that except the Investigation Officer, all the
prosecution witnesses examined by prosecution have turned
hostile. The learned Sessions Judge by solely relying upon
the evidence of Investigation Officer with regard to recovery
of some articles at the instance of accused Nos.1 and 2 has
convicted the accused, which is illegal and is not tenable
under law.
4. It is also contended by the learned counsel for
appellants that the discrepancies in the evidence of
Investigation Officer has made it untrustworthy for
acceptance. Though the prosecution has failed to prove the
guilt of accused beyond all reasonable doubt the trial Court
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has wrongly convicted appellants and same is liable to be
interfered by this Court. The learned counsel further
contended that the complainant examined before trial Court
as P.W.1 has not even identified the accused persons before
the Court nor he has implicated the accused persons into
crime and none of the pancha witnesses with regard to
recovery of incriminating articles at the instance of accused
Nos.1 and 2 have supported the case of prosecution.
Therefore, for all these reasons, the accused persons are
entitled to be acquitted and the trial Court has committed
serious error in appreciating the evidence on record. Hence,
the appeals deserve to be allowed.
5. Per contra, learned Additional State Public
Prosecutor argued before the Court that though there is no
evidence from the independent witnesses, nevertheless, the
evidence of Investigation Officer is trustworthy for
acceptance. On appreciation of the evidence on record, if
the Court comes to a conclusion that the evidence of
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Investigation Officer is trustworthy for acceptance merely
because he is a Police Officer, his evidence cannot be
doubted or rejected on that particular ground. This Court
has to dismiss the appeal confirming the orders of trial
Court. He further contends that there are ample materials
to show and connect the accused persons to the crime as the
incriminating articles like mobile phone which was the
subject matter of theft from the custody of P.W.1 and also
the lorry recovered at the instance of accused Nos.1 and 2
and further the recovery of sponge iron ore at the instance of
accused No.1 clearly discloses that they have committed an
offence punishable under Section 392 of I.P.C. Even though
there are some discrepancies in the evidence of prosecution
witnesses, the evidence of Investigation Officer can be
believed.
6. After hearing both sides the point that arises for my
consideration is as under:
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“ Whether the appellants have made out any
reasonable or substantial ground to interfere with
the judgment of conviction and sentence passed by
the trial Court?”
7. Before adverting to the evidence of prosecution
witnesses recorded in this case, it is just and necessary to
have a cursory look at the factual matrix of this case. As per
the complaint lodged by C.W.1 - Channaiah, the Munirabad
Police have registered a case in Crime No.231/2012 for the
offence punishable under Section 384 of I.P.C. Thereafter
they have investigated the matter and submitted charge
sheet for the offence under Section 395 of I.P.C. It is the
allegation that complainant by name Channayya was the
driver of the vehicle bearing its registration No.KA-36/7411,
which belonged to P.W.9 Vikas S/o. Vinod Thather. It is the
case that complainant on 14.10.2012 after loading the
vehicle with sponge iron weighing about 17.530 tonnes was
proceeding from Dhanapur to Kottur. When the lorry
reached near Simla cross at 10.00 p.m. on NH-13 near
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Tungabhadra dam three persons came in a motor cycle from
behind and intercepted the lorry and took the complainant
on their motor cycle, on the pretext that he has caused some
accident and the injured has been admitted to hospital, they
also snatched the lorry key, mobile and an amount of
Rs.2,000/- from him. Thereafter two persons took the
complainant near a canal and left the complainant with one
person and another person went away from the said place.
On the pretext of bringing some food to complainant that
person also left the place. Even though complainant was
waiting in the said place, none of them returned. Thereafter,
complainant by catching a bus came near Simla cross,
where his vehicle was intercepted by accused persons, and
found his lorry missing. On these allegations, a complainant
came to be filed after bringing this fact to the notice of lorry
owner. During the course of investigation, police have
received a credible information that accused Nos.1 and 2
were talking to each other that they have to secure two
lorries for the purpose of lifting iron ore from that particular
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place. On the basis of this information, police have arrested
accused Nos.1 and 2 recorded their voluntary statements
and proceeded with the investigation. At the instance of
accused Nos.1 and 2, a lorry belonging to P.W.9 and mobile
belonging to complainant were seized on 15.10.2012. At the
instance of accused Nos.1 and 2 and some other accused,
police have also seized the following materials, which are
marked at M.O.Nos.1 to 16 in S.C. No.21/2013 :
1. One Birla Company tyre.
2. One Apollo Company tyre – AMAR DLX
3. One Apollo Company tyre – X7-7
4. One MRF Company tyre.
5. Four Lorry tyre disks.
6. One MRF Company tyre.
7. One lorry tyre disk.
8. Hero Honda motor cycle bearing its Reg. No.KA-48E/1575.
9. Another Hero Honda motor cycle bearing itsReg. No.KA-37/S-3547.
10. One MRF Company tyre.
11. One Birla Company tyre.
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12. One Lorry disk.
13. One Lorry disk.
8. After recovering all these materials, the
Investigation Officer has filed charge sheet. The accused
persons were arrested and produced before the Court. Since
the date of their arrest, accused persons are in judicial
custody. The learned Sessions Judge has framed charges
against the accused persons and also recorded the plea.
Earlier there were five accused persons, out of them,
accused No.3 was juvenile. In order to bring home the guilt
of accused persons, the prosecution has examined P.Ws.1 to
9, got marked Exs.P-1 to P-10 and one material object has
been marked at M.O. No.1. The accused persons were also
examined under Section 313 of Code of Criminal Procedure,
1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity).
Ultimately after appreciating the materials on record,
accused Nos.1 and 2 were found guilty by the trial Court
and accused Nos. 4 and 5 were acquitted.
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9. As rightly argued by learned counsel for appellants,
none of the witnesses including the complainant have
supported the case of the prosecution. It appears that the
evidence of Investigation Officer has been solely relied upon
by trial Court.
10. P.W.1 Channayya in his examination-in-chief has
reiterated the complaint averments. Even though he has
stated in the complaint that he can identify the culprits, he
has not done so before the Court. No Identification Parade
had been conducted, nor he has earlier identified any one of
the accused persons before the Court or at the time of
evidence. On the other hand, he has specifically stated
that, at no point of time he has seen the accused persons.
He thought that somebody have taken away his lorry. He
has further stated that the bills, which were raised for
transporting sponge iron in the lorry were kept underneath
of driver’s seat in the lorry. But during the course of cross-
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examination, he has identified the mobile, which was
recovered from the accused Nos.1 and 2.
11. According to the prosecution, P.W.3
Jeevankumar and P.W.4 Prabhu are the pancha witnesses
for seizure of M.O. No.1 under Ex.P-6. However, the said
pancha witnesses have turned hostile to the case of
prosecution by simply stating that their signatures were
obtained by police in police station itself and no material
objects has been recovered in their presence. During the
course of cross-examination, whole contents of Ex.P-6 was
put to the mouth of these witnesses, but nothing could be
elicited from them. P.W.2 Manjunath and PW-5 Ramu are
the witnesses for seizure of lorry on 15.10.2012 under Ex.P-
4. These two witnesses have totally turned hostile. In the
cross-examination nothing has been elicited with regard to
seizure of said lorry. P.W.6 M.B. Inayat, Police Constable,
has translated the information of complainant. P.W.7
Vishwanath is the prime witness to prosecution case, who
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has conducted the investigation. P.W.8 Venkatappa, C.P.I.,
has submitted charge sheet and he is not a material witness.
P.W.9 Vikas S/o. Vinod Thather, is the owner of lorry in
which sponge iron was being transported. Therefore, except
the evidence of Investigation Officer, none of the witnesses
have supported the prosecution case. Now the question is,
whether the trial Court is right in believing the version of
Investigation Officer in order to convict the accused Nos.1
and 2 for the offence punishable under Section 392 of I.P.C.
The trial Court has also come to the conclusion that none of
the witnesses have supported prosecution case. However,
the learned Sessions Judge recorded the conviction by
relying upon a decision reported in –
AIR 2013 Supreme Court 3344 between Pramod
Kumar v. State (GNCT) of Delhi.
In the said judgment, the Hon’ble Supreme Court has
held that –
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“The witnesses from the department of police
cannot per se be said to be untruthful or
unreliable. It would depend upon the veracity,
credibility and unimpeachability of their testimony.
There is no absolute command of law that the
police officers cannot be cited as witnesses and
their testimony should always be treated with
suspicion. Ordinarily, the public at large show
their disinclination to come forward to become
witnesses. If the testimony of the police officer is
found to be reliable and trust worthy, the Court
can definitely act upon the same. If, in the course
of scrutinizing the evidence, the court finds the
evidence of the police officer as unreliable and
untrustworthy, the court may disbelieve him but it
should not do so solely on the presumption that a
witness from the department of police should be
viewed with distrust. This is also based on the
principle that quality of the evidence weighs over
the quantity of evidence.”
12. Basing on this decision, the evidence of
Investigation Officer has been believed by the trial Court.
But that disturbs this Court is that though the trial Court
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has believed the Investigation Officer, but failed to discuss
the evidence of Investigation Officer on the touch stone of
arguments or the defence taken up by the accused that the
mahazar drawn by Police Officer was in the police station
itself as none of the witnesses have supported, the
uncorroborated testimony of Investigation Officer should not
be believed. When such a plea has been taken by accused,
it is incumbent upon the Court to discuss the evidence of
Investigation Officer and find out whether his evidence can
be relied upon beyond all reasonable doubt and it is so
trustworthy and credible to record a conviction of judgment.
Therefore, there is a burden on the part of this Court to find
out that, in view of the above decision of Hon’ble Supreme
Court, whether the evidence of Investigation Officer can be
made a sole basis for confirming the judgment of trial Court.
13. Before adverting to the evidence of Investigation
Officer, it is worth to note here some of the rulings cited by
learned counsel for appellants. In a case reported in –
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2013 (1) Kar. L. J. 591 (SC) between Govindaraju
Alias Govinda v. State by Sriramapuram Police Station
and Another.
14. The relevant portion of judgment is at paragraphs
15 and 16, wherein it is said that -
“It cannot be stated as a rule that a Police
Officer can or cannot be a sole eye-witness in a
criminal case. It will always depend upon the
facts of a given case. if the testimony of such a
witness is reliable, trustworthy, cogent and duly
corroborated by other witnesses or admissible
evidences, then the statement of such witness
cannot be discarded only on the ground that he
is a Police Officer and may have some interest in
success of the case. It is only when his interest
in the success of the case is motivated by
overzealousness to an extent of his involving
innocent people; in that event, no credibility can
be attached to the statement of such witness.”
In another ruling, which is reported in -
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2013 (2) Kar. L.J. 638 between Prabhu and Others
v. State by Rural Police Station, Bidar Rural.
15. In the said judgement the Hon’ble Supreme
Court has held that -
A social evil and offence i.e., Section 395 of I.P.C.
dacoity out of zeal the trial Court convicted the
accused. Such convictions bend the rule of law.
Complainant himself turned hostile; other
witnesses not supported prosecution – Held, it
could not be said, prosecution proved its case
beyond reasonable doubt, thus all appellants are
acquitted and appeals are allowed.”
16. What has been observed in this particular case is
that,
“ The Court below having laboured to find
a case for the prosecution by choosing to quote
certain statements of those witnesses, is hardly
the manner in which it could be said that the
prosecution had established its case beyond all
reasonable doubt. The zeal of the Court below to
bring home the charges against the accused who
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may be dangerous dacoits, would bend the rule
of law which cannot be permitted.”
17. The next ruling cited by learned counsel for
appellants is reported in –
AIR 2011 Supreme Court 2271 between State of
Rajasthan v. Talevar and Another.
In the said judgment, the Hon’ble Supreme Court has
held at paragraph 7.7 that –
“Thus, the law on this issue can be
summarized to the effect that where only
evidence against the accused is recovery of
stolen properties, then although the
circumstances may indicate that the theft and
murder might have been committed at the same
time, it is not safe to draw an inference that the
person in possession of the stolen property had
committed the murder. It also depends on the
nature of the property so recovered, whether it
was likely to pass readily from hand to hand.
Suspicion should not take the place of proof.”
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The last judgment cited by learned counsel for
appellants is reported in –
2011 (2) S.C.D. (Cri.) 536 between Mustkeem @
Sirajudeen vs. State of Rajasthan.
18. The Hon’ble Supreme Court has held in the said
judgment that,
“the inference of guilt in circumstantial evidence
case can be justified only when all the
incriminating facts and circumstances are found to
be incompatible with the innocence of the accused
or the guilt of any other person. Discovery of the
material object, burden lies on the prosecution to
establish a close link between discovery of the
material objects and its use in the commission of
the offence. What is admissible under Section 27
of the Act is the information leading to discovery
and not any opinion formed on it by the
prosecution. It was also held that, the witnesses
declared hostile, it would be not sufficient to hold
accused persons guilty for commission of the
offence”.
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The last decision cited by learned counsel for
appellants is reported in –
(2012) 2 Supreme Court Cases 399 between Madhu
vs. State of Kerala.
19. The Hon’ble Supreme Court has held in the said
judgment that –
“Conviction was recorded with a
consequence of recovery of ornaments worn by
deceased, in the said case pursuant to
information furnished by accused and factum of
their having been sighted close to the place of
occurrence at or around the time of occurrence –
Held, evidence produced by prosecution does not
in any way establish guilt of accused.”
20. The sum and substance of the above said rulings
as to my perception is that the evidence of the witnesses
even though they turn hostile, but, there must be some
corroboration from the evidence of the witnesses in order to
link the recovery of any articles to the accused persons. The
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Investigation Officer, though a sole witness, should connect
the accused persons to the incriminating articles. His
evidence should not be discarded only on the ground that he
is the Investigation Officer and he is always interested in the
success of the prosecution. Therefore, he should not be
dubbed as an interested witness, on that particular ground
if his evidence is otherwise trustworthy and credible for
acceptance. However, the Court also should bear in mind
the Investigating Officers so far as the criminal cases are
concerned, they are naturally interested in the success of
the prosecution. The implanting of the witnesses, creating of
the evidence against the accused persons, collecting
materials against the accused persons, with over
enthusiastic manner can’t be ruled out, but the evidence
should be tested in the touch stone of above rulings to
ascertain whether the Investigating Officer is in any manner
not reliable and his evidence cannot be made use of as a sole
basis for conviction of the accused persons. In this
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background, the evidence of the Investigating Officer in this
case play a dominant role.
21. Let me first go through the evidence of the
Investigating Officer – PW-7 and refer his evidence with other
materials on record to find out whether his evidence is
totally whisper the acceptance.
22. PW-7 – Vishwanath has stated in his evidence
that the complainant has lodged a complaint on 15.10.2012
at 12.00 Noon and he registered a case in Crime No.
231/2012 under Section 384 of I.P.C. and went to the spot
and conducted the spot mahazar as per Ex.P5. But the
witnesses for panchanama in fact have totally turned hostile
to the prosecution. Nobody has supported. It is further
deposed that on the same day they went to a place called
Kasinakandi at about 3.10 p.m. where they found a lorry
bearing Registration No. KA-36/7411 parked and the said
lorry was recovered under Ex.P4. This was also not
supported by any of the witnesses including the
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complainant, who never stated about the recovery of this
lorry. So, this clearly go to show that this lorry was not
recovered at the instance of accused No.1 even before
arresting of accused this particular lorry was recovered. It is
further stated that on 18.10.2012 on receiving credible
information that two persons were searching for two lorries
for the purpose of shifting some materials. On receiving the
said information, this witness went near Hirebaganala
Village and arrested the accused Nos.1 and 2 and recorded
their voluntary statements and on the basis of their
voluntary statements, he secured the presence of two panch
witnesses – Prabhu and Jeevan Kumar and recovered one
mobile phone and also seized document – Ex.P3 pertaining
to the lorry and iron ore at the instance of accused No.2,
here also witnesses turned hostile. Here itself, it is worth to
refer the evidence of PW-1 – Mr. Channaiah with reference to
mobile phone. The complainant has not at all produced any
material to show that this mobile phone belongs to him. The
Investigating Officer also not made any effort to secure any
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documents from the complainant to show that he is the
owner of the said mobile phone.
23. It is further deposed by this Investigating Officer
that the accused Nos.1 and 2 took this witness and panch
witnesses and on the basis of their statements he has also
recovered two loads of sponge iron which was dumped near
Kasanakandi Village near a hillock. But very peculiarly
these particular sponge iron has not been marked before the
Court nor any sample has been produced before the Court.
Further, the evidence of PW-9 Mr. Vikas, which shows that
he has taken the delivery of sponge iron to his custody by
the order of the Court. The important aspect to be noted
here is that according to the Investigating Officer, this
sponge iron was seized near the Kasanakandi Village hillock.
The panch witnesses so far as this aspect is concerned,
totally turned hostile. On the other hand, some doubt is
created with regard to the seizure of the iron from the
evidence of PW-9, who has stated in his examination-in-chief
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itself that when he took the lorry which was parked near the
Police Station, at that time the sponge iron was also there in
the lorry. How this sponge iron came into this lorry is
nowhere explained by the Investigating Officer. Therefore,
the evidence of the Investigating Officer so far as this
recovery is concerned and how this sponge iron again came
back to the lorry is a doubtful circumstance, not been
explained by any body.
24. Apart from the above, it is the bounden duty of
the Investigating Officer to conduct the identification period
of the accused persons. If the accused persons are totally
unknown and strangers to the witnesses to the prosecution,
in this particular case PW-1 who is the complainant who
saw the accused persons i.e. particularly accused Nos.1 and
2 and other accused and in the complaint in Ex.P1 he has
categorically stated that if the accused persons are shown to
him he can identify them and they were all aged between 25
to 26 years and one person was 40 to 45 years and another
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person 18 to 19 years old. When such being the case, the
non-conducting of the identification period is also a serious
lapse and fault on the part of the Investigating Officer. Not
only that he has not got the test identification period
conducted but in the examination-in-chief itself he states at
paragraph 13 that after arrest of the accused Nos.1 and 2 he
secured the presence of the complainant CW-1 – Channaiah
and showed the accused persons to the said witness. This is
totally an unknown procedure under criminal jurisprudence.
Section 54-A of the Criminal Procedure Code defines, the
procedure to be followed by the Investigating Officer for the
purpose of conducting identification period, which reads
thus :
“54A. Identification of person arrested.—
Where a person is arrested on a charge of
committing an offence and his identification by
any other person or persons is considered
necessary for the purpose of investigation of such
offence, the Court, having jurisdiction, may on the
request of the officer in charge of a police station,
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direct the person so arrested to subject himself to
identification by any person or persons in such
manner as the Court may deem fit”.
In this particular case, the above said provision has not been
followed by the Investigating Officer for the purpose of
getting the accused persons identified by the important
witness. Apart from this, the Karnataka Police Manual also
at Chapter XXXIII para 1362 cast certain responsibility on
the Investigating Officer, which reads as follows :
“1362. The following are the salient points to be
borne in mind by Police Officers arranging
identification parades.—
(1) Warn the accused person that he will be put up
for a parade and he could keep himself veiled;
(2) Secure the services of a Magistrate for holding
an identification parade; if this is not possible,
secure two or more respectable and
independent persons of the locality to hold the
parade; do not select persons already known
to the identifying witnesses to stand along
with the suspects in the parade; arrange for
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the identification parade immediately an
accused is arrested. There should be no delay.
(3) When one accused is arrested in a case in
which more than one accused is required to be
identified, do not postpone the parade of the
arrested accused, till the others are secured.
As each accused is arrested, go on arranging
for the parade.
(4) Other persons participating in the parade
should be of the same build, age, dress and
appearance as the suspects;
(5) Maintain a minimum proportion of 1:5 and a
maximum proportion of 1:10; distribute the
accused among others. They should not be
made to stand together;
(6) Keep the accused out of the view of the
witnesses and take precautions to prevent
their being seen by others from the time of their
arrest, if they are to be put up for identification
parade subsequently;
(7) Shuffle the persons in the parade after
identification by each witness and make a
record of having done so in the proceedings;
(8) In respect of each accused, a separate
identification parade should be held;
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(9) When several accused persons are required to
be identified, the innocent persons, mixed up
with one accused at one parade, should not be
mixed up with another accused at a second
parade. They should be changed, with every
change of an accused person”.
25. In view of the above said guidelines, the
Investigating Officer must conduct the test identification
period of the accused persons who are strangers to the
witnesses to the prosecution. Why this particular aspect
has not been done, why the complainant was secured to the
Police Station and show the accused persons to the
complainant is not explained by the Investigating Officer.
This particular act or attitude of the Investigating Officer
shows that for the purpose of his convenience he can
conveniently overcome the statutory principles and he can
conveniently throw the legal principles to the wind. When
such a lapse is there on the part of the Investigating Officer,
how the evidence of such Officer could be believed, so far as
the other aspect with regard to the recovery of the
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incriminating articles at the instance of accused Nos.1 and 2
if the said evidence of the Investigating Officer is not
corroborated.
26. In the cross-examination of the Investigating
Officer, it is suggested that he never gone to any place nor
conducted any mahazar as stated by him in the
examination-in-chief and all the mahazars were drawn in
the Police Station. In fact, this suggestion is corroborated by
the evidence of the other prosecution witnesses. In the
course of cross-examination, it is also suggested that the
accused persons are the regular drivers and they have been
driving their lorry in National Highway No.63 and 13. In
fact, this particular suggestion has been admitted by this
witnesses and as well as PW-8 – Venkatappa Naika, who laid
the charge sheet against the accused persons after the
investigation. Therefore, it goes without saying that these
accused Nos.1 and 2 were very well known to PW-7 and PW-
8 even much earlier to the incident. Therefore, when CW-1
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has turned hostile and that other mahazar witnesses have
totally turned hostile to the prosecution. In the event where
the Police could not able to trace the real accused persons,
as accused Nos.1 and 2 have been known to the Police,
chances of false implication also cannot be ruled out. Under
the above said circumstances and in view of the Rulings of
the Apex Court as narrated above, in my opinion, though the
corroboration to the evidence of Investigating Officer is not
an absolute or imperative requirement, but depending upon
the facts and circumstances of the case, the Court has to
insist the corroboration to the evidence of the Investigating
Officer. When it is shown on the basis of the evidence that
the Investigating Officer can under certain circumstance
avoid the statutory principles and also conveniently build up
the case according to his interest in the case. It is not safe
to solely base his evidence to convict the accused.
27. Looking to the above said evidence, in this
particular case the non-conducting of Test Identification
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Period and also the accused being shown to the complainant
in the Police Station none of the witnesses supported the
case, shows that the Investigating Officer has avoided the
statutory principles and he has violated the natural way of
conducting the investigation. Therefore, in my opinion, the
evidence of such Investigating Officer cannot be made sole
basis for recording the Judgment of Conviction. Therefore,
the Trial Court has committed a serious error in
appreciating the evidence on record. As such, the judgment
of Trial Court requires to be interfered with. Hence, with
these observations, I answered the point formulated by me
in the Affirmative and proceed to pass the following Order :
The Judgment of conviction and sentence passed by
the Trial Court in S.C. No. 9/2013 on the file of the District
and Sessions Judge, Koppal is hereby set aside.
Consequently, accused Nos.1 and 2 are acquitted of the
charges levelled against them under Section 392 of I.P.C.
The accused are said to be in the Jail and they shall be set
32
at liberty forthwith, if they are not required in any other
case.
If any fine amount is deposited by them, the same is
ordered to be refunded. The order of the trial Court so far it
relates to disposal of properties, stands undisturbed.
Office is hereby directed to intimate the trial Court
forthwith so as to enable the trial Court to send release
order to the concerned Jail Authorities for release of the
accused persons without any delay.
In view of the disposal of the appeal, I.A. 1/2014 does
not survive for consideration.
SD/-
JUDGE
hnm/Rbv