Supreme Court of India
SUBHASH KRISHNANversusSTATE OF GOA
- Citation
- 2012 INSC 339
- Decided
- 17 August 2012
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
The appellant was part of a common intention to abduct, wrongfully confine and murder the victim, and his conviction under the relevant IPC sections is affirmed.
Summary
The appellant Subhash Krishnan was convicted for abduction, wrongful confinement and murder of Shanu Komarpant, alleged to have been assaulted with a talwar, knife and danda, rendered unconscious and later hanged. The prosecution relied on a complaint (Exhibit 96) by PW‑2, extensive eyewitness testimony, forensic reports showing 36 injuries, and a test identification parade (TIP) that identified the appellant. The appellant challenged the admissibility of the complaint, the validity of the TIP, the reliability of eyewitnesses who observed the crime from about 70 metres, and the medical evidence suggesting he did not inflict the injuries. The Supreme Court held that the investigation was properly conducted, the TIP was valid, the eyewitnesses could reliably identify the appellant, and the medical evidence corroborated his participation. Consequently, the appellant’s conviction under Sections 1208 r/w 302, 342, 364 and 504 r/w 34 IPC was upheld and the appeal dismissed.
Issues considered
- The admissibility and evidentiary value of the complaint (Exhibit 96) when the complainant was unavailable for cross‑examination.
- The propriety and reliability of the test identification parade and whether the appellant was correctly identified.
- Whether eyewitnesses could accurately observe the appellant’s participation from a distance of about 70 metres within a 4‑5 minute interval.
- The compatibility of medical/forensic evidence with the appellant’s alleged role in the assault.
- Whether the appellant shared common intention with the other accused to commit abduction, wrongful confinement and murder under Sections 342, 364 and 34 IPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 173, s. 313
- Indian Penal Code, 1860s. 1208, s. 302, s. 34, s. 340, s. 342, s. 362, s. 364, s. 504
Subjects
common intentionabductionwrongful confinementmurderidentification paradetest identification paradeeyewitness testimonyforensic evidenceIPC sections 1208,302,342,364,504,34investigation procedurecomplaint admissibilitycross‑examination
Judgment
[2012] 10 S.C.R. 271
SUBHASH KRISHNAN A
v.
STATE OF GOA
(Criminal Appeal No. 1089 of 2010)
AUGUST 17, 2012
B
[SWATANTER KUMAR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860 - s.1208 rlw s.302, s"S.342, 364, 504
r/w s.34 - Wrongful confinement and abduction followed by C
murder - A/legation that accused-appellant alongwith the
other accused inflicted severe injuries on the victim in which
process the victim lost his consciousf.1ess whereafter he was
carried away in a Maruti van to a different place where he was
hanged to death - Conviction of appellant - Challenge to - o
Held: Not tenable - Overwhelming evidence on record that
appellant shared common intention a/ongwith the other
accused - Clear cut, uncontroverted evidence of PW-21
owner of the Maruti van that it was appellant who took the
Maruti van from him which was identified by PW-21 as the one E
used for the crime - PW-25, mechanic working in the garage
of the deceased, made specific reference to the presence of
appellant in the van when the accused persons visited the
garage of the deceased to enquire about his whereabouts -
PWs 14, 33, 16, 23 and 27 made specific reference to the F
overt act played by the appellant in the assault on the
deceased with a big knife (ta/war) -Appellant was identified
by at least two witnesses PW-14 and 33 in the TIP - Evidence
of five other eye witnesses, namely, PWs. 16, 23, 26, 27 and
34 in having identified him in the Court by making specific G
reference to the red colour shirt wom by him at the time of the
occurrence fully corroborated the version of PWs-14 and 33
- Version of the eye witnesses that they were able to see the
specific part played by different accused and, in particular, the
271 H
272 SUPREME COURT REPORTS [2012] 10 S.C.R.
A appellant who was using a ta/war, cannot be rejected, in
absence of any malafide attributed to the witnesses -
Complicity of appellant in commission of the crime fully
established by the prosecution.
Penal Code, 1860- ss.342 and 364 rlw s.34 - Conviction
B of accused-appellant under - Justification - Held: Justified -
Examining the conduct of the appellant along with the other
accused in wrongfully restraining the victim by inflicting severe
injuries .on his body i.e. by causing as many as 36 injuries in
which process the victim Jost his consciousness whereafter he
C was shifted to a different place, where the victim was killed by
hanging, every description of the offence under ss.342 and
364 with the aid of s.34 clearly made out.
Evidence - Identification - Test Identification Parade
(TIP) - Procedure followed in holding of the TIP - Challenge
D to - Held: Not tenable - Accused-appellant was identified by
at least two of the witnesses PW-14 and 33 in the TIP -
Accused had raised objection to the effect that they were
already shown by the police officials to the said witnesses,
whereafter appellant had himself suggested that he be
E permitted to change his shirt which was allowed and he
thereafter subjected himself to the TIP in which he was
identified by PWs-14 and 33 without any hesitation - Nothing
elicited in cross examination to hold that the whole of the TIP
was not conducted in the manner it was to be held and that
F identification of the appellant was not proved in the manner
known to law - Evidence of other eye witnesses, namely,
PWs-16, 23, 26, 27 and 34 in having identified him in the
Court by making specific reference to the red colour shirt wom
by him at the time of the occuffl3nce fully corroborated the
G version of PWs-14 and 33.
Evidence - Ocular evidence - Eye-witnesses -
Appreciation of - Murderous assault with various weapons
leading to death of a person - Many accused including the
H appellant - Occuffl3nce allegedly took place for 4-5 minutes
SUBHASH KRISHNAN v. STATE OF GOA 273
- Distance between the place· of occurrence and the point A
from which the eye witnesses statedly saw the occurrence
more than 70 metres - Plea of accused-appellant that in view
of the distance and the time factor, it was impossible for the
eyewitnesses to have noted the participation of appellant and
the other accused in the crime - Held: Not tenable - The B
occurrence had taken place at 4. 30 in the evening when there
would have been no difficulty for anyone to have a clear view
- Even in the vicinity of 70 metres when about 8 persons were
assaulting the deceased with sword, knife and danda on the
road, in full public gaze, it would have definitely caught the c
eye of everyone standing thereat - Version of the eye
witnesses that they were able to see the specific part played
by different accused and, in particular, the appellant who was
using a ta/war, cannot be rejected, in absence of any malafide
attributed to the witnesses - Merely because the incident 0
happened within 4-5 minutes, it cannot be said that it was not
possible for the witnesses to have noted the participation of
the accused in the crime - As many as 36 injuries were found
in the body of the deceased which were caused by the blunt
side of the ta/war, knife as well as danda - In inflicting so many E
in}uries, the time taken would have been sufficient enough for
the witnesses to have made an observation as to the role
played by the accused in the crime - No scope for doubting
-the version of witnesses as regards the participation of the
appellant in the crime.
F
_ Criminal Trial - Investigation - Abduction and wrongful
confinement followed by murder- Procedure followed by PW-
35 (the Investigating Officer) - Propriety of - Held: The
procedure followed by PW-35 in having commenced the
investigation based on Exhibit 96 (the complaint of PW-2) G
alongwith site inspection, the prior information received by him
through phone about the alleged occurrence and every further
steps taken by him in having recorded the statements of the
other eye witnesses, the initiation taken by him for
apprehending the vehicle in which the accused alleged to H _
274 SUPREME COURT REPORTS [2012] 10 S.C.R.
A have travelled, recovery of weapons from the vehicle, arrest
of the accused including A-2 (the appellant), the recovery of
the dead body at the instance of A-1, the step taken for getting
the dead body examined through PW-9, the ascertainment
of the injuries sustained by the accused themselves,
B gathering of the FSL reports on the materials seized from the
accused as well as the deceased, considered in a sequence,
disclose that the case of the prosecution as projected based
on Exhibit 96 even in the absence of the cross examination
of PW-2 in the peculiar facts and circumstances of this case
c was perfectly in order.
The prosecution case was that when deceased
alongwith PW-2 and another person had gone to meet A-
1 with a view to arrive at some settlement with regard to
an issue relating to a love affair, the accused persons
D assaulted the deceased with knife, sword and bamboo
stick (danda) and also gave him kick blows whereafter Ar
2 (appellant) brought a Maruti van to the spot in whicH
the deceased was carried away in the dicky of the van:
The Maruti van was intercepted by the police. A-1 wa& ·
E found driving the vehicle with the other accused persons
in the van. A knife, sword, bamboo stick (danda) and a
right foot chappal with bloodstains were recovered from
the vehicle. At instance of A-1, the body of the deceased
was subsequently discovered hanging from the branch
F of a tree. The blood stained clothes of the deceased and
his left foot chappal with blood stains were statedly
recovered along with his belongings, as well as, the nylon
rope with which the body was found hanging. PW-9, the
postmortem doctor, noted 36 injuries on the deceased.
G The FSL report relating to the bloodstains found on the
various seized articles revealed the blood group of
deceased.
Though, in crll eight persons were accused of the
alleged offences, A-7 and 8 were absconding and hence
H
SUBHASH KRISHNAN v. STATE OF GOA 275
only six accused persons were charge-sheeted for the A
offences under Section 1208 read with Section 302, IPC,
Sections 342, 364, 504 read with Section 34, IPC for the
alleged abduction, wrongful confinement and killing of
the deceased. A-5 and A-6 were acquitted by the trial
Court giving benefit of doubt while A-1 to A-4 were 8
acquitted of charges under Section 342, 504 and 364 read
with Section 34 IPC. A-1 to 4 were, however, convicted
for offences under Sections 1208, 302 read with Section
34, IPC and were imposed with the sentence of life
imprisonment. A-1 to 4 preferred individual appeals. The C
State preferred cross-appeal against the acquittal of
charges under Sections 342, 504 and 364 read with
Sec ton 34 IPC and the total acquittal of A-5 and A-6. By
a common judgment, the High Court dismissed the
appeal filed by the accused and the State appeal was
partly allowed, whereunder the High Court held that the D
conviction of A-1 to A-4 would be for all the offences
including offences under Sections 342 and 364 read with
Section 34, IPC.
In the instant appeals preferred by A-2 (appellant), E
the following contentions were raised on his behalf viz.
a) Exhibit 96, complaint of PW-2 was not proved; b) PW-
2 having not offered himself for cross examination, his
evidence in chief was of no value c) Though there was a
specific overt act alleged against the appellant with the F
aid of talwar Exhibit 12, the medical evidence to the effect
that there was no cut injury on the body of the deceased
go to show that the appellant had nothing to do with the
killing of the deceased; d)The name of the appellant was
not mentioned in Exhibit 96; e) The appellant was a total G
stranger and his case should have, therefore, been
equated to that of A-5 and A-6 and he should have been
acquitted on that basis; f) The test identification parade
was not held immediately after the occurrence apart from
the fact that the procedure in holding the test H
276 SUPREME COURT REPORTS [2012) 10 S.C.R.
A identification parade was not duly followed and the
identification of the appellant by PWs-14 and 33 should
not have, therefore, been relied upon; g) According to
PW-35, the Investigating Officer, the place from where the
eye witnesses stated to have seen the occurrence,
8 namely, Marina store was admittedly 70 metres away from
the place of occurrence and, therefore, the eye witnesses
could not have seen the participation of the accused, in
particular the appellant, in the crime; h) There was total
repugnancy in the ocular vis-a-vis the medical evidence
C as regards the use of the weapon, having regard to the
nature of injuries found on the body of _the deceased;
even according to the eye witnesses, the occurrence
took place only for 4-5 minutes and from a distance of 70
metres, the eye witnesses could not have noted the
persons with any certainty in order to identify them with
D regard to specific part played by them; i) In the test
identification parade, identical persons were not kept and
that a wrong procedure was followed in the holding of
test identification parade; j) There were improvements in
the statements of the eye witnesses as compared to the
E statement found in Section 161 CrPC; k) PW-23 referred
to the bleeding injuries on A-2 in definitE> terms, whereas
according to PW-9 as well as PW-15, no injury was found
on A-2 and the only accused on whom knife injury was
found was A-4; and therefore, the presence of the
F appellant and his involvement in the crime was not made
out.
Dismissing the appeals, the Court
HELD:1.1. It is true that PW-2, the author of the
G complaint did not offer himself for cross examination. The
High Court made extensive reference to the
circumstances namely, the non-availability of PW-2 who
was in abroad at the relevant point of time, when his cross
examination was fixed and that no fault can be found with
H the prosecution since inspite of its best efforts, the
SUBHASH KRISHNAN v. STATE OF GOA 277
witness could not be produced. The High Court also A
noted that the trial Court, therefore, had no option than
to ignore his evidence. The High Court then rightly
pointed out that the whole purpose of the complaint was
to ignite the investigation, that PW-35, the investigating
officer after receipt of the complaint Exhibit 96 set the law B
in motion, sent the record of the complaint to the
Magistrate apart from the commencement of the
investigation based on the telephonic message regarding
the ongoing assault without reference to either the victim
or the accused involved in the assault. This Court fully c
agrees with the approach of the trial Court as confirmed
by the High Court in proceeding with the case of the
prosecution, ignoring the evidence of PW-2 while at the
same time the factum of the nature of offence alleged in
the complaint Exhibit -96 as proceeded with by the 0
prosecution deserved to be considered in accordance
with law. [Para 11] [294-D-H]
1.2. Apart from PW-2 who was the author of the
complaint and also eye witness, there were nine other
witnesses in the case who fully supported the case of the E
prosecution. Taking the totality of the above facts, it will
be futile on the part of the appellant to contend that PW-
2 did not offer himself for cross examination and,
therefore, the whole genesis of the case should be
thrown out of board. In the said background, the F
submission about the non-reference of the name of the
appellant in Exhibit 96 pales into insignificance
especially, when the complicity of the appellant in the
commission of the crime was otherwise fully established
by the prosecution. Therefore, the claim that the case of G
the appellant should be equated to that of A-5 and A-6
does not merit any consideration. [Para 12] [295-A-B-D-
F]
1.3. Inasmuch as any crime alleged is against the
society, it is the bounden duty of the Court to find out the H
278 SUPREME COURT REPORTS [2012] 10 S.C.R.
A truthfulness or otherwise of the prosecution case
allegedly based on initial information received and the
steps taken in furtherance of its investigation for
acceptance or otherwise of such information in order to
determine the further course of action to be taken to
B unearth the details of the crime, the persons involved in
the crime and ultimately ensure that the guilty are brought
to book. When the case of the prosecution is brought to
Court by placing all the materials, it is for the Court to
examine the action taken by the investigating machinery
c in the anvil of the law in force and on being satisfied with
the correctness of the procedure followed can proceed
to find the proof of guilt and pass its judgment. In other
words, the Courts should examine and find out whether
the story of the prosecution as projected before the Court
0 trying the offence merits acceptance. [Para 13) [296-A-E]
1.4. The procedure followed by PW-35 in having
commenced the investigation based on Exhibit 96 along
with site inspection, the prior information received by him
through phone about the alleged occurrence and every
E further steps taken by him in having recorded the
statements of the other eye witnesses, the initiation taken
by him for apprehending the vehicle in which the accused
alleged to have travelled, recovery of weapons from the
vehicle, arrest of the accused including the appellant, the
F recovery of the dead body at the instance of A-1, the step
taken for getting the dead body examined through PW-
9, the ascertainment of the injuries sustained by the
accused themselves, gathering of the FSL reports on the
materials seized from the accused as well as the
G deceased, considered in a sequence, disclose that the
case of the prosecution as projected based on Exhibit 96
even in the absence of the cross examination of PW-2 in
the peculiar facts and circumstances of this case was
perfectly in order and there is no good ground to reject
H the case of the prosecution. [Para 16] [297-F-H; 298-A-B]
SUBHASH KRISHNAN v. STATE OF GOA 279
Satish Narayan Sawant v. State of Goa 2009 (17) SCC A
724; 2009 (14) SCR 464; State of Uttar Pradesh v. Bhagwant
Kish ore Joshi AIR 1964 SC 221: 1964 SCR 71 and H. N.
Rishbud & Anr. v. State of Delhi AIR 1955 SC 196: 1955 SCR
1150 - relied on.
Manzoor v. State of Uttar Pradesh 1982 (2) SCC 72; B
Ganga Prasad v. State of UP. 1987 (2) SCC 232; Ba/aka
Singh & Ors. v. The State of Punjab 1975 (4) SCC 511: 1975
(0) Suppl. SCR 129; State of Uttar Pradesh v. Abdul Karim
& Ors. 2007 (13) SCC 569: 2007 (8) SCR 540; Animireddy
Venkata Ramana & Ors. v. Public Prosecutor, High Court of C
Andhra Pradesh 2008 (5) SCC 368: 2008 (3) SCR 1078;
Sayed Darain Ahsan alias Darain v. State of West Bengal &
Anr. 2012 (4) SCC 352; Dana Yadav alias Oahu & Ors. v.
State of Bihar 2002 (7) SCC 295: 2002 (2) Suppl. SCR 363;
Sidhartha Vashisht alias Manu Sharma v. State (NCT of D
Delhi) 2010 (6) SCC 1: 2010 (4) SCR 103; Pramod Manda/
v. State of Bihar 2004 (13) SCC 150: 2004 (4) Suppl. SCR
479; Pravin v. State of Madhya Pradesh 2008 (16) SCC 166:
2008 (5) SCR 367 and Ashok Kumar v. State (Delhi
Administration) 1995 Suppl.(3) SCC 626: 1995 (3) Suppl. E
SCR 777 - cited.
2. There are overwhelming evidence to implicate the
appellant A-2 to the death of the deceased by sharing the
common intention along with the other accused who
were convicted of the various offences. In the first F
instance, there was a clear cut evidence of PW-21 owner
of the Maruti van whose evidence was not controverted
in any manner relating to the fact that it was the appellant
who took the Maruti van from him which was identified
by PW-21 which was used for the crime. PW-25, the G
mechanic who was working in the garage of the
deceased made a specific reference to the presence of
the appellant in the van when the accused persons visited
the garage of the deceased to enquire about his
H
280 SUPREME COURT REPORTS [2012] 10 S.C.R.
A whereabouts. PW 14, 33, 16, 23 and 27 made specific
reference to the overt act played by the appellant in the
assault on the deceased with a big knife (talwar). Talwar
is a long knife with sharp edge on the one side and blunt
edge on the other. PW-9, the post mortem doctor stated
B that the injury Nos. 2 to 20, 24 to 31, 35 and 36 were
caused by hard and blunt weapon. Of the above injuries,
injury Nos.2 to 12 were on the face itself. Injury Nos. 13
to 20 were on the arms and shoulder. Injury Nos. 24 to
31 were on the leg and in the buttocks. Injury Nos. 35 and
c 36 were on the back side of the body. To a specific query
put to him, the doctor opined that except injury Nos. 21,
22, 23, 32, 33 and 34, other injuries of 2 to 36 found on
the body of the deceased could have been caused by
Exhibit 12 which is the sword and knife (Exhibit-13) while
injury Nos. 21, 22, 23, 32, 33 and 34 on the deceased
0
could have been caused by Exhibit 14, the danda.
Therefore, the extensive part played by the appellant in
the crime using the talwar Exhibit 12 was conclusively
made out.[Para 17] [298-D-H; 299-A]
E 3. The appellant was identified by at least two of the
witnesses PW-14 and 33 in the TIP held on 03.11.2003 at
the behest of PW-30 the Special Judicial Magistrate.
Though it was contended that the appellants raised an
objection to the effect that they were already shown by
F the police officials to the said witnesses, in order to rule
out any hazard on that score, the accused himself
suggested that he be permitted to change his shirt which
PW-30 allowed and, thereafter, he subjected himself to the
TIP in which he was identified by PWs-14 and 33 without
G any hesitation. Nothing was elicited in the cross
examination in order to hold that the whole of the TIP was
not conducted in the manner it was to be held and that
the identification of the appellant was not proved in the
manner known to law. PW-14 also stated in her evidence
H that she had seen the appellant in the village earlier
SUBHASH KRISHNAN v. STATE OF GOA 281
though she did not know his name. Therefore, when such A
identification of the appellant was proved to the
satisfaction of the Court, there was nothing more to be
proved about the manner in which it was held or to find
any flaw in the holding of the TIP. The witnesses were not
questioned as to the manner in which they were asked B
to identify the appellant in the TIP or the alleged defect
in the holding of the said parade when the witnesses
were examined before the Court. Therefore, it is too late
in the day for the appellant to contend that the
identification parade was not carried out in the manner c
known to law. Coupled with the above, the evidence of
other eye witnesses, namely, PWs-16, 23, 26, 27 and 34
in having identified him in the Court by making specific
reference to the red colour shirt worn by him at the time
of the occurrence fully corroborated the version of PWs- 0
14 and 33. [Para 18] [299-B-G]
Mohan/a/ Gangaram Gehani v. State of Maharashtra
1982 (1) SCC 700: 1982 (3) SCR 277; Raju@ Rajendra v.
State of Maharashtra 1998 (1) SCC 169 and Kanan & Ors.
v. State Of Kera/a 1979 (3) SCC 319 - held inapplicable. E
Simon & Ors. v. State of Kamataka 2004 (2) SCC 694:
2004 (1) SCR 1164; Dana Yadav alias Oahu & Ors. v. State
of Bihar 2002 (7) SCC 295: 2002 (2) Suppl. SCR 363 and
Daya Singh v. State of Haryana AIR 2001 SC 1188: 2001
F
(1) SCR 1115 - relied on.
4. In regard to the contention of the appellant that the
version of the eye witnesses is not reliable inasmuch as
none of the witnesses had anything to say about the
severe head injury suffered by A-4 on his forehead, the G
High Court has taken pains to analyze the crime
threadbare and found that there was no evidence led as
regards the alleged assault on him by sword, that not
even a suggestion was put to any of the prosecution
witnesses to state that there was assault by anyone and H
282 SUPREME COURT REPORTS [2012] 10 S.C.R.
A the trial Court, therefore, noted that there was every
possibility of A-4 having sustained the injures with
Exhibit 12 which was very widely used by the appellant
on the deceased in which occurrence A-4 also fully
participated. Such an approach of the trial Court in the
B peculiar facts and circumstances of the case cannot be
held to be wholly improbable. A-4 except making a
statement in 313 questioning that he was assaulted by 4
to 5 person along with two other motor cyclists with a
sword when he was waiting at the ·bus stop, there was
c no supporting material placed before the Court in the
form of legally acceptable evidence and further in the
absence of any cross examination on that aspect to any
of the witnesses examined in support of the prosecution,
there is no scope to consider the said submission to
0 grant any relief to the appellant. Therefore, the
submission that the prosecution failed to explain the
grievous injury found on A-4 or other accused does not
in any way support the case of the appellant and the said
submission, therefore, stands rejected. [Paras 21, 22, 23]
E [302-D, H; 303-A-F]
Thaman Kumar v. State of Union Territory of Chandigarh
2003 (6) SCC 380: 2003 (3) SCR 1190 and Khambam Raja
Reddy and Anr. v. Public Prosecutor, High Court Andhra
Pradesh 2.006 (11) SCC 239: 2006 (6) Suppl. SCR 446 -
F distinguished.
5. Under Section 362, IPC when by force or deceit if
any person is compelled or induced to go from any place
and such an abduction takes place in order to ultimately
eliminate him, the offence would be made out under
G Section 364, IPC. As rightly pointed out by the High
Court, examining the conduct of the appellant along with
the other accused in wrongfully restraining the deceased
by inflicting severe injuries on the body of the deceased
i.e. by causing as many as 36 injuries in which process
H the person lost his conscious whereafter he was shifted
SUBHASH KRISHNAN v. STATE OF GOA 283
to a different place, where it ultimately came to light that A
the person was killed by hanging, every description of the
offence under Sections 342 and 364 with the aid of
0
Section 34, IPC was clearly made out. The refore, no fault
is found in the said conclusion of the High Court in
having reversed the judgment of the trial Court for B
convicting the appellant for the qffence under the said
Sections. [Para 25] [304-H; 305-A-.D]
6. The submission of the appellant about the
impossibility of the eyewitnesses in having noted the
participation of the appellant and the other accused in the C
crime was on the basis that according to PW-35 the
distance between the place of occurrence and the point
from which the eye witnesses stated to have seen the
occurrence was more than 70 metres. The said
submission is liable to be rejected. In the first place, when D
the occurrence had taken place at 4.30 in the evening
there would be no difficulty for anyone to have a clear
view of what was happening before them. Even in the
vicinity of 70 metres when about 8 persons were
assaulting the deceased with sword, knife and danda on E
the road, in full public gaze, it would have definitely
caught the eye of everyone standing thereat. The
presence of the eye witnesses at the place of occurrence
was not in dispute. The witnesses made it clear that they
were seeing the occurrence from the shop called Marina F
stores. It is not as if they were not looking at the
occurrence. According to the witnesses, as well as, the
prosecution, the eye witnesses were viewing the
occurrence from the entrance of Marina stores. Therefore,
the version of the eye witnesses that they were able to G
see the specific part played by different accused and, in
particular, the appellant who was using a talwar in the
absence of any malafide attributed to the witnesses, their
version cannot be rejected. As regards the time factor, it
cannot be held that since the incident happened within
H
284 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 4-5 minutes, it was not possible for the witnesses to have
noted the participation of the accused in the crime. It is
relevant to note that according to PW-9, as many as 36
injuries were found in the body of the deceased which
were caused by the blunt side of the talwar, knife as well
s as danda. In inflicting so many injuries, the time taken
would have been sufficient enough for the witnesses to
have made an observation as to the role played by the
accused in the crime. Therefore, on that score as well
there is no scope for doubting the version of witnesses
C as regards the participation of the appellant in the crime.
PW-23 in his evidence stated that he saw the appellant
having suffered bleeding injury which was not proved. It
was A-4 who suffered the bleeding injuries on his
forehead which was caused with the aid of a knife. This
Court concurs with the conclusion of the Courts below
0
about the possibility of A-4 having suffered the injury with
the aid of Exhibit -12 (talwar) which was widely used by
the appellant and inasmuch as A-4 was also actively
involved in the crime. Since the appellant used Exhibit 12
extensively, there was every possibility of A-4 having
E suffered the injury. In the light of the overwhelming
evidence of the other eye witnesses, the medical evidence
and the forensic reports, the wrong statement of PW-23
cannot be said to have caused any serious dent in the
case of the prosecution. [Para 26] [305-0-H; 306-A-G]
F
Case Law Reference:
1982 (3) SCR 277 held inapplicable Para 8
1982 (2) sec 12 cited Para 8
G 1998 (1) sec 169 held inapplicable Para 8
1979 (3) sec 319 held inapplicable Para 8
1987 (2) sec 232 cited Para 8
H 1975 (0) Suppl. SCR 129 cited Para 8
SUBHASH KRISHNAN v. STATE OF GOA 285
2007 (8) SCR 540 cited Para 8 A
2008 (3) SCR 1078 cited Para 8
2012 (4) sec 352 cited Para 9
2002 (2) Suppl. SCR 363 cited Para 9
B
2010 (4) SCR 103 cited Para 9
2004 (4) Suppl. SCR 479 cited Para 9
2008 (5) SCR 367 cited Para 9
c
1995 (3) Suppl. SCR 777 cited Para 9
2009 (14) SCR 464 relied on Para 9,
1964 SCR 71 relied on Para 14
1955 SCR 1150 relied on Para 14 D
2004 (1) SCR 1164 relied on Para 18
2002 (2) Suppl. SCR 363 relied on Para 18
2001 (1) SCR 1115 relied on Para 18 E
2003 (3) SCR 1190 distinguished Para 23
2006 (6) Suppl. SCR 446 distinguished Para 23
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1089 of 201 O etc. F
From the Judgment & Order dated 17.12.2009/
25.01.2010 of the High Court of Bombay at Goa in Criminal
Appeal No. 13 of 2007.
WITH G
Crl. Appeal No. 1224 of 2012.
Jaspal Singh, Nitin Sangra, Dheeraj Nangal, Gaurav
Agrawal, S.S. Nehra, Rajendra Verma, for the Appellants.
H
286 SUPREME COURT REPORTS [2012] 10 S.C.R.
A Siddharth Bhatnagar, Pawan Kr. Bansal, T. Mahipal for the
Respondent.
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
8 granted in SLP (Crl) 3966 of 2010.
2. These appeals have been preferred by the second
accused. Though, in all eight persons were accused of the
alleged offences, records reveal that accused Nos. 7 and 8
were absconding even at the time of filing of the charge sheet
C and hence as many as six accused persons were charge-
sheeted for the offences under Section 1208 read with Section
302, IPC, Sections 342, 364, 504 read with Section 34, IPC
for the alleged abduction, wrongful confinement and killing the
deceased Sha nu Komarpant on 10.10.2003. Accused No.5
D and A-6 were acquitted by the trial Court giving benefit of doubt
while A-1 to A-4 were acquitted of charges under Section 342,
504 and 364 read with Section 34 IPC. The accused Nos.1 to
4 were, however, convicted for offences under Sections 1208,
302 read with Section 34, IPC and were imposed with the
E sentence of life imprisonment apart from a fine of Rs.5,000/-
each, in default to undergo further three months rigorous
imprisonment. Accused Nos.1 to 4 preferred individual appeals
being Criminal Appeal Nos.7/2007, 12/2007 and 13/2007. The
appeal preferred by the second accused was Criminal Appeal
F No.13/2007. The State preferred Appeal No.6 of 2008 against
the acquittal of charges under Sections 342, 504 and 364 read
with Section 34 IPC and the total acquittal of A-5 and A-6. All
appeals were tried together and by a common judgment
impugned in these appeals, the High Court dismissed the
G appeal filed by the accused and the State appeal being
Criminal Appeal No.6/2008 was partly allowed, where under,
the accused Nos.1 to 4 were also convicted for offences under
Sections 342 and 364 read with Section 34, IPC. The High
Court held that the conviction of the said accused would,
H therefore, be for all the offences including offences under
SUBHASH KRISHNAN v. STATE OF GOA 287
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Sections 342, 364 read with Section 34, IPC. At the outset, it A
has to be mentioned that as against the common judgment of
the High Court, appeal was stated to have been preferred by
.A-3. However, it was dismissed at the stage of preliminary
hearing. The review preferred by A-3 in Review Petition (Crl)
No.115 of 2011 was also dismissed on 09.03.2011. B
3. According to the case of the prosecution, on
10.10.2003, the accused 1 to 6 went to the garage of Shanu
Komarpant (hereinafter called 'the deceased') in a white colour
Maruti van and enquired about his whereabouts. The friend of
the deceased by name Alex Viegas who was present at that C
time in the auto garage noticed the belligerent behaviour of the
accused persons, and informed about the same to his cousin,
the complainant-Avelino Viegas (PW-2) and proceeded to the
house of the deceased, that there they met the deceased and
informed him about the anxious enquiries made by the accused D
about his whereabouts. It is stated that the deceased himself
wanted to straightaway go and meet the first accused with a
view to arrive at some settlement relating to an issue relating
to a love affair and in that view the deceased along with PW-2
and Alex Viegas went to the place of occurrence in two motor E
cycles one driven by PW-2 along with the deceased and the
other hired by Alex Viegas and that after reaching the place of
occurrence when the deceased asked A-1 as to for what
purpose he was searching for him, the accused persons stated
to have assaulted the deceased with knife, sword and bamboo F
stick (danda) and gave kick blows by hand in the middle of the
road viewed by persons standing nearby. It is further stated that
PW-2 was held by A-1 from extending any help to the deceased
and save him from the assault by the other accused while Alex
Viegas stated to have been directed by PW-2 to fetch other G
people for saving the deceased from the severe onslaught
meted out to him. The said assault stated to have taken place
at 4.30 p.m. on 10.10.2003 on the road at Galjibagh in the
vicinity of Saint Anthony High School within the limits of
Canacona police station of South Goa District.
H
288 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 4: After the severe assault on the deceased, it is stated
that A-2 brought a white colour Maruti van to the spot in which
the deceased was stated to have been placed in the dicky and
the van proceeded towards Talpona side. Based on a
telephonic information about the above incident recorded by
B PW-35 and at his instance, the crime was stated to have been
registered which was subsequently registered based on the
complaint of PW-2 for offences under Sections
302,342,504,364 and 120B, IPC read with 34 IPC in Crime No.
32/2003. Based on the information received, the registration
c number of the Maruti van in which the deceased was carried,
the police stated to have alerted the check post and that the
Maruti van was intercepted at Assolna around 5.45 pm to 6 pm
on the same day when accused A-1 was found driving the
vehicle with the other accused persons in the van in which the
knife, sword, bamboo stick (danda) and a right foot chappal
0
with blood stains were recovered. Shailesh Gadekar (A-4) had
an injury on his forehead who was sent to Primary Health
Centre, Bali along with A-5 and A~6 and that from there he was
shifted to Hospicio Hospital of Margao. Alf of them were
E subsequently arrested by the police.
5. At the instance of -A-1, the body of the deceased was
discovered in the morning of 11.10.2003 which was found
hanging to the branch of a cashew tree in an isolated place
along side the road at village Onshi. The blood stained clothes
F of the deceased and his left foot chappal with blood stains were
stated to have been recovered along with his belongings, as
well as, the nylon rope with which the body was found hanging.
After holding the inquest on the body of the victim the body was
stated to have been sent for postmortem. PW-9 was the
G postmortem doctor who noted the injuries on the deceased
numbering 36. PW-15 examined A-4 for the injuries sustained
by him and issued the certificate about the nature of the injuries
found on him.
6. The prosecution examined 35 witnesses. The FSL
H report relating to the blood stains found on the various articles
SUBHASH KRISHNAN v. STATE OF GOA 289
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
seized revealed the blood group of the deceased as 'A'. A
7. When the accused were questioned under Section 313
Cr.P.C. A-4 stated that 4 to 5 persons and two other motor
cyclists assaulted him with a sword when he was waiting at a
bus stop at Canacona at 4.30 p.m. on 10.10.2003, that pursuant
to the said assault he fell unconscious on the spot and B
thereafter regained consciousness only at the hospital at
Margao. A-3, A-5 and A-6 stated that they went to see A-4 in
the hospital on the evening of 10.10.2003 where they were
stated to have been taken into custody by the police. A-1 and
A-2 made total denial of the offence in their questioning under C
Section 313, Cr.P.C. As stated earlier, the trial Court acquitted
A-5 and 6 and convicted A-1 to A-4 for offences under Sections
302 and 1208 read with Section 34, IPC and acquitted them
for the offences under Sections 342, 504 and 364 read with
Section 34 IPC. D
8. Assailing the judgment of the High Court as well as of
the trial Court, Mr. Jaspal Singh, learned senior counsel made
elaborate submisstons. Th.e sum and substance of the
submissions of the learned senior counsel were as under:-
E
a) Exhibit 96, complaint of PW-2 was not proved;
b) PW-2 having not offered himself for cross examination,
his evidence in £hief was of no value and the High Court
rightly ignored the evidence of PW-2.
F
c) Though there was a specific overt act alleged against
the appellant with the aid of talwar Exhibit 12, the medical
evidence to the effect that there was no cut injury on the
body of the deceased go to show that the appellant had
nothing to do with th_e killing of the deceased. G
d) The name of the appellant was not mentioned in Exhibit
96.
e) The appellant was a total stranger. The appellant's case
should have, therefore, been equated to that of A-5 and H
290 SUPREME COURT REPORTS [2012] 10 S.C.R.
A A-6 and he should have been acquitted on that basis.
f) The test identification parade was not held immediately
after the occurrence apart from the fact that the procedure
in holding the test identification parade was not duly
followed. The identification of the appellant by PWs-14 and
B
33 should not have, therefore, been relied upon.
g) According to PW-35, the Investigating Officer, the place
from where the eye witnesses stated to have seen the
occurrence, namely, Marina store was admittedly 70
c metres away from the place of occurrence and, therefore,
the eye witnesses could not have seen the participation
of the accused, in particular the appellant, in the crime.
h) There was total repugnancy in the ocular vis-a-vis the
medical evidence as regards the use of the weapon,
D having regard to the nature of injuries found on the body
of the deceased. Even according to the eye witnesses, the
occurrence took place only for 4-5 minutes and from a
distance of 70 metres, the eye witnesses could not have
noted the persons with any certainty in order to identify
E them with regard to specific part played by them.
i) In the test identification parade, identical persons were
not kept and that a wrong procedure was followed in the
holding of test identification parade.
F j) There were improvements in the statements of the eye
witnesses as compared to the statement found in Section
161 Cr.P.C.
k) PW-23 referred to the bleeding injuries on A-2 in definite
terms, whereas according to PW-9 as well as PW-15, no
G
injury was found on A-2 and the only accused on whom
knife injury was found was A-4. Therefore, the presence
of the appellant and his involvement in the crime was not
made out.
H Learned counsel relied upon the reported decisions of this
SUBHASH KRISHNAN v. STATE OF GOA 291
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Court in Mohan/al Gangaram Gehani v. State of Maharashtra A
-1982 (1) SCC 700, Manzoor v. State of Uttar Pradesh - 1982
(2) SCC 72, Raju @ Rajendra v. State of Maharashtra - 1998
(1) SCC 169, Kanan & Ors. v. State OfKerala-1979 (3) SCC
319 in support of his submission as regards the infirmities in
holding the Test Identification Parade (TIP). Learned counsel B
also relied upon the decisions reported in Ganga Prasad v.
State of UP.- 1987 (2) SCC 232, Ba/aka Singh & Ors. v. The
State of Punjab - 1975 (4) SCC 511, State of Uttar Pradesh
v. Abdul Karim & Ors. - 2007 (13) SCC 569 and Animireddy
Venkata Ramana & Ors. v. Public Prosecutor, High Court of C
Andhra Pradesh - 2008 (5) SCC 368.
9. As against the above submissions, learned counsel
appearing for the State submitted as under:-
a) that the test identification parade was held in
0
accordance with law;
b) that PWs-14 and 33 who participated in the test
identification parade stated that they had never seen A-2
or his photograph immediately before the holding of the
TIP. E
c) When the appellant raised objection at the time of
holding of TIP and wanted to change his shirt, PW-30 who
held the TIP allowed the appellant to change his shirt and
thereby whatever objection he had was also duly set right.
F
d) The appellant and other accused never cross examined
the witnesses about any shortcoming in the holding of the
TIP and, therefore, they cannot now be heard to complain
about the procedure followed in the holding of TIP.
e) PW-14 who was one of the witnesses, who identified G
the appellant in the TIP also made it clear that she had
earlier seen him in her village though she did not know his
name.
f) As far as the distance factor was concerned, learned H
292 SUPREME COURT REPORTS [2012] 10 S.C.R.
A counsel submitted that PW-35 clarified that the witnesses
viewed the occurrence from the entrance of Marina stores
and, therefore, they had a clear view of what was taking
place when the assailants were assaulting the deceased.
g) Apart from the identification of the appellant by PWs-
B 14 and 33 in the test identification parade, the other
witnesses, namely, PWs-16, 23, 26, 27 and 34 identified
the appellant in the Court and thereby corroborated the
version of Pws-14 and 33.
c h) The evidence of PW-21, the owner of Maruti van who
made a categorical statement that it was the appellant who
took his Maruti van which was later on found to have been
used in the crime for which he applied for the return of the
vehicle.
D i) The evidence of PW-25 who was a worker in the garage
also proved the presence of the appellant in the Maruti van
earlier in the day when the accused persons went to the
garage of the deceased enquiring about the whereabouts
of the deceased.
E
j) The subsequent interception of the said Maruti van by
the police PWs-13 and 18 and the presence of the
appellant along with other accused and their subsequent
arrest support the case of the prosecution.
F k) The evidence of post mortem doctor PW-9 about the
nature of injuries, namely, injury Nos. 2 to 36 except injury
Nos. 21, 22, 23, 32, 33, 34 which according to PW-9 could
have been caused by Exhibit 12 from its blunt side and
that the said injuries collectively could have caused the
G death of the deceased.
I) The evidence of PW-16 as well as other witnesses,
namely, PWs-14, 33, 23 and 27 in having made specific
reference to the red colour shirt worn by the appellant while
indulging in the crime was never disputed.
H
SUBHASH KRISHNAN v. STATE OF GOA 293
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
m) The said witnesses specifically attributed the over act A
played by the appellant. The medical evidence, therefore,
was in tune with the ocular evidence.
n) The evidence of PWs-14, 33, 16 and 23 in having.
specifically referred to the removal of the deceased in the
8
Maruti van and the subsequent recovery of the body of the
deceased at the instance of A-1 on the next day when the
body was found hanging on a Cashew tree in village Onshi
established the offence of abduction and the killing of the
deceased as per Sections 342, 362, 364 read with 34,
IPC. C
o) The FSL report confirmed the presence of blood group
'A' belonging to the deceased in the red shirt worn by the
appellant while the blood group of the appellant was 'O+'.
p) The version of PW-35 was truthful when he stated about D
the telephonic message was received by him about the
ongoing assault on a person at Galjibagh in the vicinity of
Saint Anthony High School and the subsequent complaint
Exhibit 96 received by him on the basis of which he
commenced the investigation which resulted in the filing E
of the final report against the accused.
Learned counsel appearing for the State relied upon the
decision of this Court reported in Sayed Darain Ahsan alias
Darain v. State of West Bengal & Anr. - 2012 (4) SCC 352,
F
Dana Yadav alias Oahu & Ors. v. State of Bihar- 2002 (7)
SCC 295, Sidhartha Vashisht alias Manu Sharma v. State
(NCT of Delhi) - 2010 (6) SCC 1, Pramod Manda/ v. State of
Bihar - 2004 (13) SCC 150, Pravin v. State of Madhya
Pradesh - 2008 (16) SCC 166, Ashok Kumar v. State (Delhi
Administration) - 1995 Suppl.(3) SCC 626, Satish Narayan G
Sawant v. State of Goa - 2009 (17) SCC 724 in support of his
submissions.
10. Having heard learned counsel for the appellant as well
as learned counsel for the State and having perused the H
294 SUPREME COURT REPORTS [2012] 10 S.C.R.
A judgment impugned as well as that of the trial Court and the
other material papers, at the outset we wish to deal with the
submission regarding the registration of the FIR and the alleged
shortcomings. According to learned counsel, the author of the
complaint-Exhibit 96 having abstained from offering himself for
B cross examination the said document ceased to have any
effect. Learned senior counsel would, therefore, contend that
once Exhibit 96 and the evidence of PW-2 goes out of picture
and since he was not named in the FIR, there was no possibility
of implicating the appellant to the offence alleged against him.
c According to him if Exhibit 96, the complaint cease to exist
what remained was the prior telephonic information received
by PW-35, based on which the appellant could not have been
convicted.
11. When we examine the said submission, it is true that
D PW-2, the author of the complaint did not offer himself for cross
examination. The High Court in paragraph 37 made extensive
reference to the circumstances namely, the non-availability of
PW-2 who was in abroad at the relevant point of time, when
his cross examination was fixed and that no fault can be found
E with the prosecution since in spite of its best efforts, the witness
could not be produced. The High Court also noted that the trial
Court, therefore, had no option than to ignore his evidence. The
High Court then rightly pointed out that the whole purpose of
the complaint was to ignite the investigation, that PW-35, the
F investigating officer after receipt of the complaint Exhibit 96 set
the law in motion, sent the record of the complaint to Canacona
Magistrate on the morning of 11.10.2003 itself apart from the
commencement of the investigation based on the telephonic
message regarding the ongoing assault at Galjibagh without
G reference to either the victim or the accused involved in the
assault. We fully agree with the approach of the trial Court as
confirmed by the High Court in proceeding with the case of the
prosecution, ignoring the evidence of PW-2 while at the same
time the factum of the nature of offence alleged in the complaint
H Exhibit -96 as proceeded with by the prosecution deserved to
be considered in accordance with law.
SUBHASH KRISHNAN v. STATE OF GOA 295
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
12. As rightly pointed out by the Courts below, apart from A
PW-2 who was the author of the complaint and also eye witness,
there were nine other witnesses in the case who fully supported
the case of the prosecution. Those witnesses were cross
examined in detail on behalf of the accused. In the above stated
background when the law was set in motion by PW-35, the B
Investigating Officer who initially received a telephonic message
regarding the occurrence allegedly from the local MLA about a
serious crime taking place at Galjibagh in which somebody was
being assaulted, PW-35 stated to have sent his staff who
brought PW-2 to the police station through whom Exhibit 96 c
came to be received and crime No.32/2003 was subsequently
registered for offences under Section 302, 342, 504, 364,
1208 read with Section 34, IPC. Closely followed by the said
act it is in evidence that police in the District was alerted which
resulted in PW-13 and 18 apprehending the accused along with 0
the Maruti van bearing registration No.GA 02J-7230 along with
the weapons used. Therefore, taking the totality of the above
facts, it will be futile on the part of the appellant to contend that
PW-2 did not offer himself for cross examination and, therefore,
the whole genesis of the case should be thrown out of board.
In the said background, the submission of the learned counsel E
about the non-reference of the name of the appellant in Exhibit
96 pales into insignificance especially, when the complicity of
the appellant in the commission of the crime was otherwise fully
established by the prosecution. Therefore, the claim that the
case of the appellant should be equated to that of A-5 and A- F
6 does not merit any consideration. Consequently, the
submission of the learned counsel based on the failure of PW-
2 in offering himself for cross examination and non-mentioning
of the name of the appellant in Exhibit 96 also stands rejected.
G
13. In this respect the reliance placed upon by the learned
counsel for the State on the decision of this Court reported in
Satish Narayan Sawant v. State of Goa - 2009 (17) SCC 724
can be usefully referred to. In paragraph 22 to 27, this Court
while dealing with such a situation has noted that the Court will H
296 SUPREME COURT REPORTS (2012] 10 S.C.R.
A not become helpless. Inasmuch as ariy crime alleged is against
the society, it is the bounden duty of the Court to find out the
truthfulness or otherwise of the prosecution case allegedly
based on initial information received and the steps taken in
furtherance of its investigation for acceptance or otherwise of
B such information in order to determine the further course of
action to be taken to unearth the details of the crime, the
persons involved in the crime and ultimately ensure that the guilt
are brought to book. In that respect in our view, there is every
responsibility in the police as a law enforcing machinery and
c as savior of the society from the unlawful elements indulging in
crimes, take necessary steps based on the information
collected by it in the first instance and set the law in motion and
proceed with its action as prescribed under the provisions of
law. When the case of the prosecution is brought to Court by
placing all the materials, it is for the Court to examine the action
0
taken by the investigating machinery in the anvil of the law in
force and on being satisfied with the correctness of the
procedure followed can proceed to find the proof of guilt and
pass its judgment. In other words, the Courts should examine
and find out whether the story of the prosecution as projected
E before the Court trying the offence merits acceptance.
14. This Court has noted with approval the earliest case
reported in State of Uttar Pradesh v. Bhagwant Kishore Joshi
- AIR 1964 SC 221 wherein while explaining what is
F investigation which is not defined in the Code of criminal
Procedure, the Court placed reliance upon an earlier decision
of this Court reported in H.N. Rishbud & Anr. v. State of Delhi
-AIR 1955 SC 196, in which it was held that the investigation
consisted of five steps, namely, proceeding to the spot,
G ascertainment of facts and circumstances of the case, discovery
and arrest of the suspected offender, collection of evidence
relating to the commission of the offence which may consist of
examination of various persons including the accused reducing
them into writing, proceed with the search of places or seizure
of things considered necessary for the investigation to be
H produced at the time of trial and formation of the opinion as to
SUBHASH KRISHNAN v. STATE OF GOA 297
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
whether on the material collected there is a case to place the A
accused before a Magistrate for trial and, thereafter, taking
necessary steps for the said purpose by filing the charge· sheet
under Section 173.
15. In that case, according to PW-1 the investigation officer
received information about the death of a person through PSI B
of another police station without any details as to how the
incident happened and as to the cause of the incident and with
that cryptic information regarding the death of a person who
was residing within the jurisdiction of the investigating officer
in an incident alleged to have taken place on the date and time C
informed to him without making any entry in the general diary
or get any FIR lodged, the 10 stated to have gone to the place
of occurrence and noted certain blood marks with his torch light
where even the complaining party was not present. Thereafter
by bringing the persons present at the place of occurrence to D
the police station and after collecting necessary information, the
FIR was recorded.
16. Keeping the principles laid down in H.N. Rishbud &
Anr. v. State of Delhi - AIR 1955 SC 196 as noted by this Court
in the later decision in State of Uttar Pradesh v. Bhagwant E
Kishore Joshi-AIR 1964 SC 221 and further referred to in the
recent decision in Satish Narayan Sawant v. State of Goa -
2009 (17) sec 724, we hold that the procedure followed by
PW-35 in having commenced the investigation based on
Exhibit 96 along with site inspection, the prior information F
received by him through phone about the alleged occurrence
and every further steps taken by him in having recorded the
statements of the other eye witnesses, the initiation taken by
him for apprehending the vehicle in which the accused alleged
to have travelled, recovery of weapons from the vehicle, arrest G
of the accused including the appellant, the recovery of the dead
body at the instance of A-1 from the village Onshi, the step
taken for getting the dead body examined through PW-9, the
ascertainment of the injuries sustained by the accused
themselves, gathering of the FSL reports on the materials H
298 SUPREME COURT REPORTS [2012) 10 S.C.R.
A seized from the accused as well as the deceased, considered
in a sequence, disclose that the case of the prosecution as
projected based on Exhibit 96 even in the absence of the cross
examination of PW-2 in the peculiar facts and circumstances
of this case was perfectly in order and we do not find any good
B ground to reject the case of the prosecution based on the
present submission of the learned counsel for the appellant.
17. With this, when we come to the alleged participation
of A-2, in the offence, there are overwhelming evidence to
implicate him to the death of the deceased by sharing the
C common intention along with the other accused who were
convicted of the various offences as set out in the earlier part
of this judgment. In the first instance, there was a clear cut
evidence of PW-21 owner of the Maruti van whose evidence
was not controverted in any manner relating to the fact that it
D was the appellant who took the Maruti van from him which was
identified by PW-21 which was used for the crime. PW-25, the
mechanic who was working in the garage of the deceased
made a specific reference to the presence of the appellant in
the van wt.en the accused persons visited the garage of the
E deceased to enquire about his whereabouts. PW 14, 33, 16,
23 and 27 made specific reference to the overt act played by
the appellant in the assault on the deceased with a big knife
(talwar). Talwar is a long knife with sharp edge on the one side
and blunt edge on the other. PW-9, the post mortem doctor
F stated that the injury Nos. 2 to 20, 24 to 31, 35 and 36 were
caused by hard and blunt weapon. Of the above injuries, injury
Nos.2 to 12 were on the face itself. Injury Nos. 13 to 20 were
on the arms and shoulder. Injury Nos. 24 to 31 were on the leg
and in the buttocks. Injury Nos. 35 and 36 were on the back
G side of the body. To a specific query put to him, the doctor
opined that except injury Nos. 21, 22, 23, 32, 33 and 34, other
injuries of 2 to 36 found on the body of the deceased could have
been caused by Exhibit 12 which is the sword and knife
(Exhibit-13) while injury Nos. 21, 22, 23, 32, 33 and 34 on the
deceased could have been caused by Exhibit 14, the danda.
H Therefore, the extensive part played by the appellant in the
SUBHASH KRISHNAN v. STATE OF GOA 299
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
crime using the talwar Exhibit 12 was conclusively made out A
and the submission of the learned counsel on this aspect is
grossly futile.
18. The appellant was identified by at least two of the
witnesses PW-14 and 33 in the TIP held on 03.11.2003 at the
behest of PW-30 the Special Judicial Magistrate. Though it was B
contended that the appellants raised an objection to the effect
that they were already shown by the police officials to the said
witnesses, in order to rule out any hazard on that score, the
accused himself suggested that he be permitted to change his
shirt which PW-30 allowed and, thereafter, he subjected himself C
to the TIP in which he was identified by PWs-14 and 33 without
any hesitation. As pointed out by learned counsel for the State
with regard to the holding of the TIP nothing was elicited in the
cross examination in order to hold that the whole of the TIP was
not conducted in the manner it was to be held and that the o
identification of the appellant was not proved in the manner
known to law. PW-14 also stated in her evidence that she had
seen the appellant in the village earlier though she did not know
his name. Therefore, when such identification of the appellant
was proved to the satisfaction of the Court, there was nothing E
more to be proved about the manner in which it was held or to
find any flaw in the holding of the TIP. At the risk of repetition it
will have to be stated that the witnesses were not questioned
as to the manner in which they were asked to identify the
appellant in the TIP or the alleged defect in the holding of the
F
said parade when the witnesses were examined before the
Court. Therefore, it is too late in the day for the appellant to
contend that the identification parade was not carried out in the
manner known to law. Coupled with the above, the evidence
of other eye witnesses, namely, PWs-16, 23, 26, 27 and 34 in
having identified him in the Court by making specific reference G
to the red colour shirt worn by him at the time of the occurrence
fully corroborated the version of PWs-14 and 33. It will be
appropriate to refer to the decisions of this Court reported in
Simon & Ors. v. State of Karnataka -2004 (2) SCC 694, Dana
Yadav alias Oahu & Ors. v. State of Bihar -2002 (7) SCC 295 H
300 SUPREME COURT REPORTS [2012] 10 S.C.R.
A and Daya Singh v. State of Haryana -AIR 2001 SC 1188. The
following passages in the above referred to decisions can
usefully be referred as under:
Simon & Ors. v. State of Karnataka (supra)
"14: ........... mere identification of an accused person at
B
the trial for the first time is from its very nature inherently
of a weak character. The purpose of a prior test
identification is to test and strengthen the trustworthiness
of that evidence. Courts generally look for corroboration
of the sole testimony of the witnesses in court so as to fix
c 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
D corroboration. It has also to be borne in mind that the
aspect of identification parade belongs to the stl\ge of
investigation, and there is no provision in the C~de of
Criminal Procedure which obliges the investigating agency
to hold, or confers a right upon the accused to claim a test
E identification parade. Mere failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. What weight is to be
attached to such identification is a matter for the courts of
fact to examine. In appropriate cases, it may accept the
F evidence of identification even without insisting on
corroboration .......... "
Dana Yadav alias Oahu & Ors. v. State of Bihar (supra)
"38. (a) xxx
G (b) xxx
(c) xxx
(d) xxx
(e) xxx
H
SUBHASH KRISHNAN v. STATE OF GOA 301
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
(f) In exceptional circumstances only, as discussed above, A
evidence of identification for the first time in court, without
the same being corroborated by previous identification in
the test identification parade or any other evidence, can
form the basis of conviction.
(g) xxx" B
Daya Singh v. State of Haryana (supra)
"12 ......... For this purpose, it is to be borne in mind that
purpose of test identification is to have corroboration to
the evidence of the eyewitnesses in the form of earlier C
identification and that substantive evidence of a witness
is the evidence in the Court. If that evidence is found to
be reliable then absence of corroboration by test
identification would not be in any way material.
Further, where reasons for gaining an enduring impress D
of the identity on the mind and memory of the witnesses
are brought on record, it is no use to magnify the theoretical
possibilities and arrive at conclusion - what in present day
social environment infested by terrorism is really
unimportant. In such cases, not holding of identification E
parade is not fatal to the prosecution ........ "
19. With this, when we examine the reliance placed on the
decision reported in Mohan/a/ Gangartlm Gehani v. State of
Maharashtra (supra) wherein it was held that without knowing
the accused beforehand the identity made by a witness, the F
absence of any TIP would be valueless and unreliable, the said
decision does not apply to the facts of this case. In the decision
reported as Mohan/al Gangaram Gehani v. State of
Maharashtra (supra), it was only held that where at the earliest
opportunity the eye witness failed to mention any identifying G
feature of the accused persons, the identification of the
accused by one of the witnesses nearly two months later in TIP
cannot be accepted. In the case on hand while the occurrence
took place on 10.10.2003 the TIP was held on 03.11.2003,
therefore, it cannot be held that there was a long gap in between H
302 SUPREME COURT REPORTS [2012] 10 S.C.R.
A in order to state that the witnesses could not have identified the
accused appellant. On the other hand, PW-14 stated that she
had already seen the appellant in the village though she did not
know his name.
20. In the decision reported as Raju alias Rajendra v.
8 State of Maharashtra (supra) it was held that a TIP parade after
about 1 Yi years after the incident was not reliable. We do not
find any support from the said decision to the facts of this case.
Equally we do not find any scope to apply the decision reported
as Kanan & Ors. v. State of Kera/a (supra) where no TIP was
C held in respect of the witness who did not know the accused
earlier. Therefore, the submission based on the alleged defect
in the TIP does not merit any consideration.
21. According to the learned senior counsel, the version
0 of the eye witnesses is not reliable inasmuch as none of the
witnesses had anything to say about the severe injury suffered
by A-4 on his forehead. PW-9 post mortem doctor has referred
to the injuries sustained by A-4. Before that on 10.10.2003 itself
at 7 p.m. he was examined by PW-15 doctor who noted the
injuries and opined that it was caused by a sharp weapon less
E than six hours before examination. There was a visible fracture
of skull and it was grievous in nature. A-4 was referred to the
Hospicio Hospital Margao. Exhibit 12 was shown to PW-15
who opined that there was every possibility of the injury being
caused by the said weapon. She stated that though A-4
F complained that he was assaulted by fist blows all over his body
she did not notice any injury or marks on his body. Learned
counsel would contend that when such specific injuries on A-4
to A-6 were spoken to by PW15 and PW-9 none of the eye
witnesses referred to that in their evidence and thereby they
G were suppressing the truth. Learned counsel therefore,
contended that their whole version cannot be believed.
22. In this respect, it will be worthwhile to refer to the
approach of the High Court where it has taken pains to analyze
H the crime threadbare and found that there was no evidence led
SUBHASH KRISHNAN v. STATE OF GOA 303
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
as regards the alleged assault on him by sword, that not even A
a suggestion was put to any of the prosecution witnesses to
state that there was assault by anyone and the trial Court,
therefore, noted that there was every possibility of A-4 having
sustained the injures with Exhibit 12 which was very widely used
by the appellant on the deceased in which occurrence A-4 also B
fully participated. Such an approach of the trial Court in the
peculiar facts and circumstances of the case cannot be held
to be wholly improbable.
23. Accused No.4 except making a statement in 313
questioning that he was assaulted by 4 to 5 person along with C
two other motor cyclists with a sword when he was waiting at
Canacona bus stop at 4.30 p.m. on 10.10.2003, there was no
supporting material placed before the Court in the form of legally
acceptable evidence and further in the absence of any cross
examination on that aspect to any of the witnesses examined o
in support of the prosecution, there is no scope to consider the
said submission of the learned counsel to grant any relief to
the appellant. Learned counsel relied upon Thaman Kumar v.
State of Union Territory of Chandigarh - 2003 (6) SCC 380
para 16 and Khambam Raja Reddy and Anr. v. Public E
Prosecutor, High Court Andhra Pradesh - 2006 (11) SCC
239 para 17. We do not find any support from the said
decisions to the case before us. Therefore, the submission of
the learned counsel that the prosecution failed to explain the
grievous injury found on A-4 or other accused does not in any
F
way support the case of the appellant and the said submission,
therefore, stands rejected.
24. It was then contended that none of the ingredients of
Section 364, IPC were made out for the High Court to find the
appellant guilty of the said offence along with A-1, A-3 and A- G
4. In this context, it is sufficient to refer to what has been stated
by the High Court. In paragraph 87, the High Court has
observed on this aspect which reads as under:
"87. The learned trial Court, however, erred in acquitting
the accused No.1- Valeriano Barretto, the accused No.2- H
304 SUPREME COURT REPORTS [2012) 10 S.C.R.
A Subhash Krishnan. the accused No.3-sanjay Gadekar, the
accused No.4-Shailesh Gadekar under Sections 342, 364
read with Section 34 of IPC, 1860. The view taken by the
learned trial Court for acquitting the said accused persons
proceeded from the fact that the victim Shanu fell
B unconscious and thereafter, he was put in a dicky of the
Maruti van. This fact, the learned trial Court reasoned, did
not further materialize into his prevention from proceeding
in any direction and or his abduction in order to murder
him or to put him in danger of being murdered. Essentially
both the offences i.e. wrongful confinement and abduction
c are the offences which are committed as a result of
curtailment of personal liberty. The offence of wrongful
confinement as defined under Section 340 of the Code
occurs when individual is wrongfully restrained in such a
manner as to prevent him/her from proceeding beyond
D
certain circumscribing limits. The offence of abduction
under Section 362 of the Code involves use of force or
deceit to compel or induce any person to go from any
place. Evidence clearly shows that the victim Shanu by use
of criminal force i.e. the assault was made to loose his
E consciousness. Even if the victim would have wished to
proceed in any one direction, he would not have been in
position to do so for the reason of his unconsciousness.
Certainly, Shanu never wished to go with his assailants in
the Maruti Van, but was compelled by the said accused
F persons to go from the place of incident to the place where
he ultimately met his death. Deceit involves tricking away
of individual from reality. Unconsciousness paralyzed the
mental faculties of the victim and freezed his perception
as regards the place. Virtually, the victim was, thereafter,
G tricked away from the reality while in unconscious state
and made to go from one place to another. Thus, the
learned trial Court grossly misinterpreted the facts and
recorded manifestly illegal finding."
25. As rightly pointed out by the High Court under Section
H
SUBHASH KRISHNAN v. STATE OF GOA 305
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
362, IPC when by force or deceit if any person is compelled A
or induced to go from any place and such an abduction takes
place in order to ultimately eliminate him, the offence-would be
made out under Section 364, IPC. As rightly pointed out by the
High Court, examining the conduct of the appellant along with
the other accused in wrongfully restraining the deceased by B
inflicting severe injuries on the body of the deceased i.e. by
causing as many as 36 injuries in which process the person
lost his conscious where after he was shifted to a different place,
where it ultimately came to light that the person was killed by
hanging, every description of the offence under Sections 342 C
and 364 with the aid of Section 34, IPC was clearly made out.
Therefore, we do not find any fault in the said conclusion of the
High Court in having reversed the judgment of the trial Court
for convicting the appellant for the offence under the said
Sections.
D
26. The submission of learned counsel for the appellant
about the impossibility of the eyewitnesses in having noted the
participation of the appellant and the other accused in the crime
was on the basis that according to PW-35 the distance between
the place of occurrence and the point from which the eye E
witnesses stated to have seen the occurrence was more than
70 metres. In the first place, when the occurrence had taken
place at 4.30 in the evening there would be no difficulty for
anyone to have a clear view of what was happening before
them. Even in the vicinity of 70 metres when about 8 persons F
were assaulting the deceased with sword, knife and danda on
the road, in full public gaze, it would have definitely caught the
eye of everyone standing thereat. The presence of the eye
witnesses at the place of occurrence was not in dispute. The
witnesses made it clear that they were seeing the occurrence
from the shop called Marina stores. It is not as if they were not G
looking at the occurrence. According to the witnesses, as well
as, the prosecution, the eye witnesses were viewing the
occurrence from the entrance of Marina stores. Therefore, the
version of the eye witnesses that they were able to see the
H
306 SUPREME COURT REPORTS ... [2012] 10 S.C.R.
A specific part played by different accused and, in particular, the
appellant who was using a talwar in the absence of any
malafide attributed to the witnesses, their version cannot be
rejected ..We, therefore, do not find any substance in the said
submission of the learned counsel. As regards the time factor,
8 it cannot be held that since the incident happened within 4-5
minutes, it was not possible for the witnesses to have noted
the participation of the accused in the crime. It is relevant to
note that according to PW-9, as many as 36 injuries were found
in the body of the deceased which were caused by the blunt
C side of the talwar, knife as well as danda. In inflicting so many
injuries, the time taken would have been sufficient enough for
the witnesses to have made an observation as to the role .
played by the accused in the crime. Therefore, on that score
· as well there is no scope for doubting the version of witnesses
as regards the participation of the appellant in the crime. It is
0 true that PW-23 in his evidence stated that he saw the appellant
having suffered ,bleeding injury which was not proved. It was
. also true· that it was A-4 who suffered the bleeding injuries on
his forehead which was caused with the aid of a knife. We have
already concurred with the conclusion of the Courts below
E · about the possibility of A-4 having suffered the injury with the
aid of Exh.ibit -12 (talwar) which was widely used by the
appellant and inasmuch as A-4 was also aCtively involved in
the crime. Since the appellant used Exhibit 12 extensively, there
was every possibility of A-4 having suffered the injury. In the light
F -of the ove!Whelming evidence of the other eye witnesses, the
medical evidence and the forensic reports, the wrong statement
of PW-23 eannot be said to have caused any serious dent in
the case of the prosecution. Therefore, on that score, we do-
not find any scope to interfere with the judgment impugned.
G
27. Having fegard to our aoove conclusions, we do not find
any merit in these appeals, The judgment impugned in these
appeals does not call for any interference. The appeals fail and
the same are dismissed accordingly.
H B.B.B. Appeals dis.missed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "common intention"Sign in to search