REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.629 OF 2005

Ramesh … Appellant

Versus

State of Karnataka … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Accused No.3 before the learned Trial Court is before us aggrieved by  

and dissatisfied with a judgment and order dated 17.12.2003 passed by the  

High Court of Karnataka at Bangalore in Criminal Appeal No.1820 of 2003  

modifying his sentence from death to rigorous imprisonment for life arising  

out of a judgment dated 11.11.2003 passed by the I Additional District and  

Sessions Judge, Bangalore Rural District, Bangalore in SC No.73 of 2000.

2. PW3,  Manjusetty  was  the  driver  of  a  truck  bearing  Registration  

No.AP-09-4948.   Deceased Shivashankar (Shekar)  was the cleaner  in the  

said truck.  Accused No.5 Jayamma is said to be a member of a gang of  

dacoits  comprising  of  accused  Nos.  1  to  4  being  Krishna,  Manjunath,  

Ramesh  (appellant)  and  Shivalinga.   The  truck  belonged  to  one  Natraja  

Transport Company having its office at Prashanth Nagar, Bangalore.

3. A First Information Report was lodged by PW2, Puttaswamy alleging  

that on 24.12.1998 when he had gone to Kunigal for work, he received a call  

in his mobile phone at about 7.45 am from his office informing him that the  

aforementioned truck had been stolen by some persons.  He was asked to  

look into the matter.  He with Driver Eshwara went in search of the said  

truck in a Maruti Van bearing Registration No.KA02 7055.  Near a factory  

which  is  on  the  side  of  highway No.48 at  Kunigal,  he  found that  some  

people had gathered by the side of the road.  Upon enquiries made by them,  

they came to know that a pair of chappal was lying at some distance away  

from  the  road.   They  proceeded  further  and  found  one  ‘pant’  and  two  

undergarments.  Proceeding further they found blood stains and a severed  

hand of a man on the field.  It now stands established that the same was that  

of the driver of the lorry.  They thereafter went towards Solur, Nelamangala,  

Shivagange and Kudur.  On the way from Kudur to Shivagange, they again  

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found  that  some  people  had  gathered  near  Thoreramanahalli  and  upon  

enquiries made, they were informed that one dead body was lying at some  

distance.  They found the dead body to be that of the cleaner, Shekar.  They  

informed the owner of the vehicle thereabout.  They furthermore went in  

search of the truck.  They came to learn that the driver of the truck, Manja  

had been admitted to Mallige Medical Centre at Bangalore City whereupon  

they visited the nursing home and found him to be in a seriously injured  

condition,  his  left  hand having  been  severed.   He  was instructed  by  the  

owner of the truck to lodge a complaint with the police pursuant whereto a  

First Information Report was lodged.  It was registered under Section 302,  

392 and 307 of the Indian Penal Code.

4. The prosecution case, as disclosed by PW3 is as under :

While he was driving the said truck on 22.12.1998 with some goods to  

Bhadravathi,  he  visited  his  sister’s  house  at  Marishetty  Halli,  village  in  

Channaryapattana Taluk.  He left his sister’s village at 7.30 pm in the night  

on 23.12.1998.  He came near the Johnson factory at about 10 pm.  The road  

was under repair.  He saw accused No.5 Jayamma standing by the side of the  

road.  She came to him by making a signal with her hand whereupon he sent  

the cleaner Shivashankar to enquire as to what was the matter about.  He  

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returned back after speaking to her stating that she intended to go to KMDL  

factory.  She had asked him to give her Rs.50/-.  As PW3 had no money  

with him, he borrowed the said sum from the cleaner, got down from the  

truck  and  proceeded  towards  the  place  where  she  had  been  standing.  

Jayamma led him towards the field.  When apparently they were having sex,  

accused  No.1  to  4  came from behind  and suddenly  caught  hold of  him.  

Krishna, accused No.1 is said to have inflicted an injury on the backside of  

his neck with a hatchet.  He tried to run away.  He was chased by the other  

accused persons.  They again tried to hit him on his neck.  However, he  

raised his hand to protect his neck as a result whereof, the blow fell on his  

left hand resulting in severing of his left palm.  He became unconscious.  He  

regained his consciousness at around 3.30.  He felt thirsty.  When he tried to  

drink water from a nearby dhaba, it came down through his neck.  He went  

by the side of the road to stop some vehicle.  He also noticed that the truck  

was  missing.   He  lost  his  consciousness  again.   He  regained  his  

consciousness at Mallige Nursing Home at Bangalore.  He was in hospital  

for about 20 days.   

He was called to the police station to identify one of the culprits and  

he identified the appellant.  Fifteen days thereafter he was again called to the  

police station and found appellant Jayamma there.  She was identified to be  

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the  woman who had actually  made  signal  to  stop the  truck on the  way.  

Seven days thereafter he was again called to the police station and found  

accused No.2 to be present there.  He, however, could not identify accused  

Nos.1 and 4.

5. Admittedly,  no identification parade was held.   It  was alleged that  

from the truck,  a  tape  recorder,  one watch,  two tyres,  one  jack and one  

tarpaulin  with a rope was stolen.   Those articles  were  said to have been  

recovered at the instance of the accused.  At the instance of the appellant, a  

blue coloured tarpaulin was said to have been recovered from PW4.   

6. The place of occurrence is said to be the Johnson factory which is  

situated at a distance of three kilometers ahead of Kunigal as one proceeds  

towards Bangalore.  Near the said factory, there was a Dhaba on the left  

side.  A little ahead, there was another dhaba on the right side.  Behind the  

dhaba,  on the  left  side  there  are  agricultural  fields.   The area  where  the  

incident took place is known as Karikal Gudda cross.  There were lights in  

the Johnson factory.   PW3, in his evidence, stated that near the place of  

occurrence, only he, Shivashankar (the cleaner) and accused No.1 to 5 were  

present.   He removed his pant  and chappal.   Accused No.5 removed her  

undergarments for having illicit sex.  The accused had caught hold of him  

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from behind.  He allegedly had conversation with them as to who else were  

in there in the lorry and as to where he had been going.  The said place is  

said to be at  a  distance of about 100 ft.  from the road.  Ragi crops were  

standing in the field,  when the assault,  in the manner  stated,  took place.  

Accused No.1 Krishna was said to have been holding a Machu.  Accused  

No.4  was holding a chaku.  Accused No.2, however, was unarmed.   

7. During  the  course  of  investigation  whereas  at  the  instance  of  the  

appellant, the tarpaulin was recovered from PW4, the jack, tape recorder and  

two tyres were stated to have been recovered at the instance of accused No.1  

from different persons.

8. Relying  on  or  on  the  basis  of  the  statement  of  PW3  as  also  the  

recovery of  the said articles,  a  judgment  of  conviction and sentence  was  

recorded.   Death sentence  was awarded to  accused No.1 to  4.   Accused  

No.5,  however,  was  awarded  life  imprisonment.   All  the  accused  were  

furthermore  convicted  under  Section  307  of  the  Indian  Penal  Code  and  

sentenced to undergo rigorous imprisonment for 10 years.   

9. On  appeals  having  been  preferred  by  the  accused,  the  same  were  

allowed in part and the death sentence awarded against respondent Nos.1 to  

4 were reduced to life imprisonment.   

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10. This appeal has been filed by the appellant who was accused No.3  

alone.

11. Ms. Deepshikha Bharati, learned amicus, appearing on behalf of the  

appellant, would submit that the place of occurrence being about 400 meters  

to 500 meters from the Johnson factory and the appellant being unknown to  

the  said  PW3,  it  was  impossible  to  identify  him  in  a  dark  night.   The  

purported substantial evidence whereupon reliance has been placed by the  

learned Sessions Judge as also the High Court was not such which would  

lead  to  the  conclusion  that  the  prosecution  case  was  proved  beyond  all  

reasonable doubts.

12. Mr.  Mishra,  learned  counsel  appearing  on  behalf  of  the  State,  

however, supported the impugned judgment.

We have noticed heretobefore that no test identification parade was  

held.  In the First Information Report, the appellant was not named.  We,  

however, are conscious of the fact that PW2, Puttaswamy, when lodged the  

First  Information Report,  might  not  have  received the  details  of  incident  

from PW3 as he was undergoing treatment in the nursing home.  According  

to PW3, however, he came to know the names of all the assailants during the  

incident as one would call the other by his name.  In his statement before the  

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police, however, admittedly he did not disclose the name of the appellant.  

Strangely  enough,  according  to  PW30,  the  Head  Constable,  PW23,  and  

another constable produced accused No.5 before him at about 3.45 pm on  

12.1.1999.  She was arrested and interrogated.  It was on that day itself, he  

called  PW3  who  identified  her  whereupon  his  further  statement  was  

recorded.  The said prosecution witness, however does not state that even  

accused No.5, on interrogation, disclosed the name of accused No.s 1 to 4.  

Accused No.3 was arrested on 9.2.1999.  It is not in dispute that he is a taxi  

driver.  He was kept in custody during the night.  On the next day, allegedly,  

he was taken to the house of one Ibrahim who is said to have purchased from  

him the tarpaulin in question.   

13. PW4, in his evidence disclosed that the tarpaulin purchased by him  

was blue in colour.  PW2 and PW3, in their evidences, however, stated that  

the tarpaulin which was used in the truck was of mash green colour.  Yet  

again when the tarpaulin was produced, its colour had faded but despite the  

same, it was identified as the same tarpaulin.   

14. We have noticed hereinbefore that according to PW3, he was called  

upon to identify the accused No.3 first in the police station.  He, after three  

weeks,  was  again  called  to  the  police  station  to  identify  accused  No.5.  

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PW13, however, as indicated hereinbefore, in his statement stated the date of  

arrest of accused No.5 as 12.1.1999.  The incident having taken place on  

24.12.1998 and PW3 being in hospital for at least 20 days and he having  

been  called  to  police  station  three  weeks  thereafter,  it  is  beyond  

comprehension as to how he could be asked to identify accused No.3 first  

and then accused No.5, although accused No.5 was arrested on 12.1.1999  

and the appellant was arrested on 9.2.1999.  PW4, Ibrahim, was the owner of  

hotel.  He knew the appellant No.3 as he used to take his meals in his hotel.  

In  his  statement,  the  appellant  was  a  regular  customer  as  he  had  been  

transporting sand in his truck regularly.  He was examined on 19.11.2002.  

According to him, about four years prior thereto, he had asked for some loan  

stating that he had no money to pay for food.  When, however, he expressed  

his inability to pay the said sum stating that he had no money, he allegedly  

borrowed the said amount from another  person on pledging a terpauline.  

After one and a half months, he came with the Kudur police and asked him  

to give his money back.  At the instance of the police, the terpauline was  

produced.  Measurement of the terpauline was taken.  A panchnama was  

prepared.  What was the measurement of the terpauline, however, has not  

been disclosed.  The purported measurement of the terpauline said to have  

been stolen  had not  been verified  with  the  recovered one.   None of  the  

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prosecution witnesses denied or disputed the fact that appellant was a driver.  

It appears rather strange that Shanthakumar PW6 would be panch witnesses  

for recovery of MO.12 although he had advanced the amount of Rs.500 to  

PW4.  If the tarpauline was pledged to him, there was no reason as to why it  

should be recovered from PW4.  The special features of the tarpauline which  

could be identified by PW2 and PW3 have not been stated.  Tarpaulines are  

common goods being available in the market.  It has also been accepted by  

Shanthakumar, PW6.  

15. In view of the fact that other accused are not before us, we are of the  

opinion that it is difficult to uphold the judgment of conviction and sentence  

against the appellant herein.  The place where the assault took place was said  

to be at a distance of 400 to 500 meters from the factory.  Not only the place  

of occurrence was agricultural fields as stated by PW3 but the crop had also  

been standing thereon.

16. If  accused  No.5  was  arrested  first  and  accused  No.3  one  month  

thereafter, it does not stand to any reason as to why PW3 would be called to  

identify accused No.3 first which according to him took place 20 days after  

his  discharge  from  the  hospital  and  15  days  thereafter  he  was  again  

summoned to identify accused No.5.

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17. We have noticed hereinbefore the respective dates of arrest of accused  

No.5 and accused No.3 respectively.  It is difficult to conceive that accused  

No.5 would still be available so that the Investigating Officer could ask the  

witnesses to come to the police station.  There is nothing to show that she  

was in custody of the police for more than 30 days.  A presumption must be  

drawn that  by  that  time,  she  was  in  judicial  custody.   It  is  also  wholly  

unlikely that names of all the accused  person would be disclosed during  

commission of the offence by one another.   It  furthermore appears to be  

somewhat unusual that although PW3 and accused No.5 were caught while  

they were indulging in illicit sex and all of them came from behind and the  

first attack was on the back of his neck, still conversations would not only  

took place by and between PW3 and the accused persons; the former even in  

that condition would be able to follow the same.  

18. Mr. Chaudhary would submit that in all cases, it is not necessary to  

hold test identification parade.  That may be so.  In a case of this nature, the  

test  identification parade would have been meaningless as appellant were  

shown to PW3 in the police station.  Appellant was shown to PW3 at the  

police station.  He was identified in court also.  Reliance has been placed by  

Mr. Chaudhary on  Malkhansingh & Ors. V.  State of M.P. [(2003) 5 SCC  

746], wherein this Court opined :

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“The  evidence  of  mere  identification  of  the  accused person at the trial for the first time is from  its very nature inherently of a weak character. The  purpose of a prior test identification, therefore, is  to  test  and strengthen the  trustworthiness  of  that  evidence. It is accordingly 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,  in  the  form of  earlier  identification  proceedings.  This  rule  of  prudence,  however,  is  subject  to  exceptions,  when,  for  example,  the  court  is  impressed  by  a  particular  witness  on  whose  testimony it can safely rely, without such or other  corroboration. The identification parades belong to  the stage of investigation, and there is no provision  in the Code of Criminal Procedure, which obliges  the investigating agency to hold, or confers a right  upon  the  accused  to  claim,  a  test  identification  parade.  They  do  not  constitute  substantive  evidence  and  these  parades  are  essentially  governed by Section 162 of the Code of Criminal  Procedure.  Failure  to  hold  a  test  identification  parade would not make inadmissible the evidence  of  identification  in  court.  The  weight  to  be  attached to such identification should be a matter  for the courts of fact. In appropriate cases it may  accept the evidence of identification even without  insisting on corroboration.”

It was furthermore held :

“It  is  no doubt  true  that  much evidentiary  value  cannot  be  attached  to  the  identification  of  the  accused  in  court  where  identifying  witness  is  a  total  stranger who had just  a fleeting glimpse of  the  person  identified  or  who  had  no  particular  

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reason to remember  the person concerned,  if  the  identification is made for the first time in court.”

19. Judged by the aforementioned legal principles laid down therein, in  

our opinion, the identification of appellant PW3 in court cannot be held to be  

trustworthy.   

Reliance has also been placed by Mr. Chaudhary on a judgment of  

this Court in  Asharfi & Ors. V.  The State [AIR 1961 All. 153], wherein it  

was  held  that  identification  by  only  one  person  may  not  be  relied  upon  

stating :

“Hence,  only  one  identification  cannot  eliminate  the  possibility  of  the  pointing  out  being  purely  through chance and for this reason is insufficient to  establish the charge.”

In  Heera & Anr. V.  State of Rajasthan [(2007) 10 SCC 175], a test  

identification  had been held  in  presence  of  a  Civil  Judge  and a  Judicial  

Magistrate.  The said decision, therefore, is not applicable.

In  Ravindra  Laxman  Mahadik v.  State  of  Maharashtra [(1997  

Criminal Law Journal 3833) in a case involving Section 395 of the Code of  

Criminal Procedure, it was opined:

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“I find merit in Mr. Mooman’s submission that it  would  not  be  safe  to  accept  the  identification  evidence of Manda Sahani.  Manda Sahani in her  examination-in-chief stated that on the place of the  incident,  there  was  no  light.   In  her  cross- examination (para 6) she stated that it was dark at  the  place  of  the  incident  but,  slight  light  was  emanating from the building situate on the shore.  The distance between the building and the place  where Manda Sahani and her husband were looted  has  not  been  unfolded  in  the  evidence.   The  learned trial Judge has observed that the evidence  of Vinod Sahani is that the incident took place at a  distance of about 100 ft. from the Gandhi statute,  where the meeting was held.  What he wanted to  convey was that hence there must have been light  at the place of incident in my view, on the face of  the definite statement of Manda that it was dark as  there  was  only  slight  light,  and bearing in  mind  that  the  incident  took  place  at  9.30  p.m.  in  the  month of February, 1992, it would not be safe to  conclude  that  there  was  sufficient  light  on  the  place  of  the  incident  enabling  Manda  Sahani  to  identify the appellant.”

The decision of the Allahabad High Court in Asharfi lal (supra) was  

followed therein.   

In Kanan & Ors. V. State of Kerala [AIR 1979 SC 1127], this Court  

held  :

“It is well settled that where a witness Identifies an  accused who is not known to him in the Court for  the first time, his evidence Is absolutely valueless  unless there has been a previous T. I. parade to test  his powers of observations. The Idea of holding T.  

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I. parade under Section 9 of the Evidence Act is to  test the veracity of the witness on the question of  his  capability  to  identify  an  unknown  person  whom the witness may have seen only once. If no  T. I. parade is held then it will be wholly unsafe to  rely  on  his  bare  testimony  regarding  the  identification  of  an  accused  for  the  first  time  in  Court.”

20. As identification of PW3 is highly doubtful, in our opinion, having  

regard to the nature of other evidences brought on record by the State, i.e.,  

purported recovery of a tarpauline by itself cannot be said to be sufficient to  

convict the appellant for a charge of such grave offence.   

21. The appeal is allowed.  The appellant should be set at liberty forthwith  

unless wanted in connection with any other case.

……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Cyriac Joseph]

New Delhi; July 27, 2009

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