THIMMAREDDY & ORS.versusSTATE OF KARNATAKA

                         [2014) 9 S.C.R. 14


A                     THIMMAREDDY & ORS.
                                  V.
                     STATE OF KARNATAKA
                (Criminal Appeal No. 903 of 2014)

                          APRIL 21, ·2014
B
       [SURINDER SINGH NIJJAR AND A.K. SIKRI, JJ.]

       Penal Code, 1860 - s. 397 rlw s.1208 - Robbery - In
  bus - Eight accused - Trial C9urt acquitted all the accused
c holding that charges were not proved against them beyond
  reasonable doubt .... High Court convicted 5 of the 8 accused
  - 3 convicts i.e. A-1, A-2 and A-5 filed appeal before
  Supreme Court - Held: Charge of conspiracy uls. 120-8 /PC
  was not prove(} as the mere fact that the eight accused
o persons gathered on the previous day could riot automatically
  connect to the commission of alleged crime - High Court
  committed grave error in recording conviction solely on basis
  of statement of the so called eye witnesses, and wrongly
  believing their version - High Court was duty bound to
E consider their testimonies in entirety i.e. along with the cross-
  examination in order to find out their truthfulness and to see
  whether their version in examination-in-chief remained
  unshaken and was worthy of credence - .But no such exercise
  was done at all - Trial court indulged in wholesome discussion
F while discarding the testimony of eyewitnesses - Discussion
  of the trial court adversely commenting upon the faulty
  procedure and imperfect investigation completely ignored and
  sidelined by the High Court - Charge against appellants ul
  s.397 rlw s.120-B /PC not proved beyond reasonable doubt
  - Appellants accordingly acquitted -· Code of Criminal
G Procedure, 1973 - ss.161 and 166.

        The prosecution case was that the eight accused
    persons including the three appellants hatched a

H                                 14
    THIMMAREDDY v. STATE OF KARNATAKA                   15


conspiracy and in furtherance of the same intercepted a       A
bus and committed robbery therein by showing deadly
weapons like sickle, knives. All the accused were
charged for committing offences punishable under
Section 397 r/w Section 120-B IPC. The Sessions Judge
acquitted all the accused persons holding that charges        B
against them were not proved beyond reasonable doubt.
The State filed appeal under Section 378(1) and (3) CrPC.
During pendency of the appeal, one of the accused
persons, namely A-3 died. The High Court convicted five
of the remaining seven accused persons under Section          c
397 read with Section 120-8 of the IPC and sentenced
them to rigorous imprisonment for seven years. A-4 and
A-6 were acquitted by the High Court.

    Out of the five accused convicted by the High Court,
three i.e. A-1, A-2 and A-5 filed appeal before this Court.   D

    Allowing the appeal, the Court

     HELD: 1. In so far as charge of conspiracy is
concerned, the Sessions Judge, after analyzing the            E
testimony of PW-19, as well as PW-6 on this aspect came
to the conclusion that the charge of conspiracy was not
proved inasmuch as, the mere fact that eight accused
persons were gathered on the previous day could not
automatically connect to the commission of alleged
crime. Even the High Court has not discarded the              F
aforesaid findings of the trial court on the charge of
conspiracy. The reason for convicting five accused
persons, out of eight who stood trial, is testimonies of
other witnesses who were in the bus and had purportedly
seen the said accused persons. For want of                    G
establishment of charge of conspiracy A-6 and A-4 were
let off by the High Court as they were not named by any
of the eye witnesses. This Court is, therefore, quite in
agreement with the conclusion of the trial court that
                                                              H
    16      SUPREME COURT REPORTS              [2014] 9 S.C.R.


A charge of conspiracy under Section 120-B of IPC has not
  been proved. [Paras 8, 9] [23-E, G-H; 24-G-H; 25-A]

       2.1. Insofar as the charge under Section 397 IPC is
  concerned, the trial court after analyzing the testimony
  of the witnesses refused to believe them. Pertinent
8
  observation which is _made by the trial court in this behalf
  is that when the statements of these witnesses were
  recorded under Section 161,Cr.P .C., at the time of
  investigation by the police officer, none of these
  witnesses stated that they had seen the· accused persons
C and were in a position to identify them if they were
  brought before them. The trial court referred to Karnataka
  Police Manual and observed that the investigation was
  not done in accordance with the procedure for
  identifications contained therein. The trial court also
D found serious loopholes in the manner in which
  investigation was carried out, leaving serious flaws and
  the discussion exposing these flaws in the judgment of
  the trial court. In so far as recovery on the basis of
  purported voluntary statement of the accused persons is
E concerned, the trial court found that while recording
  alleged voluntary statement of the accused persons,
  procedure as laid down under Sections 165 and 166
  CrPC was not followed. The accused from outside the
  State were arrested within the limits of some other police
F station without following the procedure under Section
  166 Cr.P .C. It is further pointed out that when the
  accused persons were brought in Police Station and their
  voluntary statements were allegedly recorded, the police
  committed major irregularities which were incu_rable.
G [Paras 10, 17, 18 and 19] [25-B; 26-D-G; 28-C; 29-E-Gj'

        2.2. On the basis of the aforesaid analysis, the trial
    court did not believe the version of eye witnesses, faulty
    TIP as well as legality of the recoveries at the instance of
    the accused persons. With this discussion, the trial court
H
     THIMMAREDDY v. STATE OF KARNATAKA                    17


concluded that even if there was some incriminating             A
material against the accused persons that was not
sufficient to prove the guilt of the accused persons
beyond reasonable doubt as cogent evidence was not
produced and the investigation was faulty. This resulted
in the acquittal of all the persons by the trial court. [Para   B
21] [36-G-H; 31-A]

     3.1. The High Court has committed grave error in
recording the conviction solely on the basis of the
statement of the so called eye witnesses, and wrongly
believing their version. From the discussion contained in
                        I
                                                                C
the judgment of the High Court, it becomes apparent that
except stating what these witnesses have mentioned in
their examination-in-chief, no further discussion is there
in the judgment and the testimony of all these persons
are believed as gospel truth. The High Court was duty           0
bound to consider their testimonies in entirety i.e-.:atong
with the cross-examination in order to find out their
truthfulness and to see whether their version in
examination in chief has remained unshaken and worthy
of credence. No such exercise is done at all. No doubt,         E
the trial court has indulged in wholesome discussion
while discarding the testimony of eye witnesses. Fact
remains that while doing so, the trial court discussed the
infirmities in the procedure adopted which led to the
disbelieving of all these witne~ses. The discussion of the      F
trial court adversely commenting upon the faulty
procedure and imperfect investigation is completely
ignored and sidelined by the High Court. [Para 25] [34-
H; 35-A-D]
                                                                G
     3.2. Insofar as eye witnesses are concerned, the High
Court has accepted their truthfulness and relied upon the
testimonies of PW-1 (conductor who had identified A-1
and A-5), PW-2 (the driver who had identified A-2), PW-6
(victim who had identified A-1 and A-3) and PW-15               H
(passenger who had identified A-7 and A-8). It is stated
                   •,

    18      SUPREME COURT REPORTS              [2014] 9 S.C.R.


A by the High Court that these witnesses stood by their
  statement, their evidence is unimpeachable and there are
  no discrepancies in their evidence. However, these
  observations are on the basis of examination in chief of
  these witnesses without taking into consideration their
B cross-examination. In so far as PW-1 is concerned, in his
  cross-examination he has accepted the faces of the two
  persons covered with kerchief. If that was so, he has not
  at all explained as to whether their faces were uncovered
  at any point of time how and when he was able to see
C their faces. He did not explain 'ln his statement recorded
  under Section 161 Cr.P.C. as to why he did not state he
  wou.ld be in a position to identify two persons. In that
  statement, he is conspicuously silent about having seen
  two persons. [Para 26] [35-E-H; 36-A]
D
       3.3. Likewise, in so far PW-2, driver is concerned,
  apart from the features pointed out qua PW-1 which apply
  in his case, he mentioned in his examination in chief that
  "somebody hit me from back side by means of hand.
E They put chopper on neck from back side." In his cross-
  examination he not only accepted that when he was hit
  on the back of the neck, he did not shout, he further
  specifically stated that "there was no chance for me to
  see back side since the vehicle waf in a running vehicle.
  The vehicle was· moving at the speed of 20 kms. I did not
F turn back till the accused get down from the bus." [Para
  27] [36-8-C]

      3.4. lns·ofar as PW-6 is concerned, he has allegedly
  identified A1 and A-3. Out of these two i.e. A-1 is identified
G by PW-1 as well. However, PW-1 mentioned that face of
  A-1 was covered. Again, he had not explained as to under
  what circumstances he could identify these accused
  persons. PW-15 was another passenger in the bus who
  has identified A-7 and A-8. He, inter-alia, has stated that
H two persons had knife on the chest of PW-6 and
      THIMMAREDDY v. STATE OF KARNATAKA                   19

 snatched his bag and came towards him. He was                  A
 assaulted by means of knife on his left hand wrist and
 his bag was also snatched. The two ·persons who
 snatched the bag from PW-6, according to PW-6 were A1
 and A-3. However, PW-15 identified two other persons
 namely A-7 and A-8. That apart he has also admitted that       s
 one of them had covered his face that one person has
 closed his face upto nose by means of the cloth. In these
 circur:nstances, how he could identify that person is not
 explained. [Para 28) [36-D-F]

       3.5. There is another important aspect which cannot      C
  be lost sight of, namely as per PW-1 the faces of all the
  accused persons were covered with kerchief. It is not at
  all stated by any of the witnesses as to when these
  persons removed those kerchief and their faces became
  naked which could be seen by these witnesses. PW-1            D
· was subsequently confronted with the statement under
  Section 161, Cr.P.C. to this effect that in. the cross-
  examination he accepted that he made the statement.
  Therefore, it was for him to clarify as to under what
  circumstances he could see the faces of A-1 and A-5 on        E
  the same ground how their faces could be seen by other
  witnesses, remains a mystery which is not explained by
  the prosecution. [Para 29) [36-G-H; 37-A-B]

     Hari Nath vs. State of UP. 1988 (1) SCC 14: 1988 (1)       F
 SCR 848; Rajesh Govind Jagesha vs. State of Maharashtra
 1999 (8) SCC 428: 1999 (4) Suppl. SCR 277 - referred to.

       4. The flaws in the investigation pointed out by the
 trial court become crucial. Curiously, High Court has not
 even adverted to those flaws. Charge against the               G
 appellants under Section 397 IPC read with Section 120-
 B has not been proved beyond reasonable doubt. The
 appellants are entitled to be released forthwith. [Paras 30,
 31 and 32) [37-B-D]
                                                                H
    20        SUPREME COURT REPORTS                [2014) 9 S.C.R.


A                        Case Law Reference:
         1988 (1) SCR 848            referred to        Para 23
         1999 (4) Suppl. SCR 277     referred to        Para 23

B       CRIMINAL APPELLATE JURISDICTION : Criminal :
    Appeal No 903 of 2014.

        From the Judgment and Order dated 01.12.2010 in CRLA
    No. 1256/2006 of the High Court of Karnataka Circuit Bench
    at Gulbarga.
c
          K.L. Janjani, Pankaj Kumar Singh, Ankit Gaur, G.N. Reddy
    for the Appellants.     ·

          C.B. Gururaj and V.N. Raghupathy for the Respondents.
D        The Judgment of the Court was delivered by

         A.K.SIKRI, J. 1. Leave granted.

      2. With the consent of learned counsel for the parties,
E matter was heard finally.

         3. Instant is an appeal filed by three persons who were
   accused of committing offence punishable under Section 397
   read with Section 120-B IPC along with five others. After the
   trial of these accused persons, the Sessions Court had
F acquitted all the accused person holding that charge under the
   aforesaid provisions had not been proved against these
   accused persons beyond reasonable doubt. The State had
   ql!estioned the _validity of the judgment of the trial court by
 ~preferring the appeal under Section 378(1) and (3) of the Code
G of Criminal Procedure. During the pendency of the appeal, one
   of the accused persons, namely P.Laxman (A-3) died. Appeal
   was heard qua remaining seven accused persons. The Higli
   Court vide its judgment dated 1st December 2010 has
   convicted _five of the seven accused persons for the offence
H punishable under Section 397 read with Section 120-B of the
     THIMMAREDDY v. STATE OF KARNATAKA                      21
               [A.K. SIKRI, J.]
IPC and have imposed the sentence of rigorous imprisonment        A
for a period of seven years. They have also been directed to
pay compensation of Rs.50,000/- each for the aforesaid
offences and in default of such payment, to undergo simple
imprisonment for a period of one year. The persons who were
convicted are accused No.1 to 5, 7 and 8. In respect of accused   8
No.4 and 6, the judgment of the Sessions Judge is maintained
holding that the charges against them are not proved and
appeal in respect of the said two persons is dismissed. As
mentioned above, out of the five accused convicted, only three
have approached this Court with present appeal, who are A-1,      C
A-2 and A-5.

    4. The case of the prosecution has been stated by the High
Court in the impugned judgment, which can be reproduced
without any fear or contradiction, is as follows:~
                                                                  D
    "On 8.10.2004 at about 10.30 p.m., a KSRTC bus bearing
    No.KA.36/3453 was proceeding on the Manvi-Raichur
    Road near Kapagal village. At that time, accused No.4 and
    accused No.6 who had conspired together andplanned to
    commit dacoity, gave information to accused No.1,             E
    accused No.2, accused No.3, accused No.7 & 8 and all
    of them committed the offence as per their plan.
    Accordingly, they went by bus from Gadwal and travelled
    in the Raichur Mantralayam-Hubli bus as passengers. A-
    2 by holding a sickle to the neck of the driver PW.2, asked
                                                                  F
    him to stop the bus by assaulting him and threatening to
    injure him. Immediately the bus was stopped. Accused
    No.5 took the knife and accused No.. 1 took dagger and
    pressed on the chest of PW3 and threatened him with dire
    consequences. Then, accused No.3 robbed the suit case         G
    of PW6 and A-7 took out a knife and threatened PW15,
    Udaykumar, who suffered injuries on his left hand. A-8
    snatched a bag containing money from PW1. Then A-1,
    A-5 and A-8 robbed the two suit cases of PW13
    Jagadeesh and PW7 Jeelani. They also snatched the bag
                                                                  H
    22        SUPREME COURT REPORTS                [2014] 9 S.C.R.


A        of PW20 Hanumanthappa. A-1,A-7 and A-8 snatched the
         cash bag from the complainant namely the conductor of
         the bus. They went at a distance opened the suit cases,
         took away the money and threw away the articles. Thereby
         all the accused committed dacoity of an amount of
B        Rs.4,47, 100/-. Thereafter, the complainant went to the ,
         Manvi Police Station and lodged a complaint. PWs.2,
         6,7,13 and 15 accompanied him. The statements of
         PWs.2,6, 7, 13 and 15 were also recorded. Accordingly, a
         case in Crime No.182/2004 was registered ·by the Manvi
         Police Station for offences punishable under Section 120-
         B read with 397 IPC and investigation commenced.
         Thereafter the accused were arrested and a sum of
         Rs.2B,OOO/- was recovered from A-1, a sum of Rs.54,000/
         - from A-2, a sum of Rs.32,000/- from A-3, a sum of
         Rs.36,000/- from A-4, a sum of Rs.35,000/- from A-5, a
D
         sum of Rs.12,000/- from A-6, a sum of Rs.500/- from A-7
         and a sum of Rs.9,600/- from A-8. The weapons used. in
         the offence was recovered on their voluntary statement.
         Various articles were also recovered. On completion of
         investigation, a charge sheet was filed by the prosecution
E        and the accused were charged for the offence punishable
         under Section 120-B and 397 of the Indian Penal Code. "

        5. The prosecution examined 24 witnesses and produced
    78 documents which were exhibited. The prosecution also
f   marked 37 material objects. The accused persons in their
    defence examined two witnesses and produced five
    documents.

            6. As' is clear from the provisions of IPC, charge
"      whereupon was pressed, it was tne case of the prosecution that
'..;;J
       eight accused persons had hatched a conspiracy to commit the
       dacoity and in furtherance of the said conspiracy they
       committed dacoity by intercepting KSRTC on 8.10.2004 at
       about 10.30 p.m. The trial court, accordingly, formulated
~ following points which arose for consideration:
     THIMMAREDDY v. STATE OF KARNATAKA                         23
               [A.K. SIKRI, J.] ·
    "(1) Whether the prosecution proves that the accused             A
conspired together in oraer to commit robbery on CW-3Y
Yousuf in KSRTC bus. While he was travelling and also to other
passengers in the bus?

     (2) Whether.Ahe prosecution prpves that as a result of said     B
conspiracy the accused committed the dacoity in the bus
bearing No.KA-36/3453 by showing the deadly weapons like
sickle, knives near Kapgal Seema at Bailmerchad cross on
Raichur Manvi road and committed Dacoity?

     (3) What order?"                                                c
     7. Obviously, the first question which fell for consideration
was as to whether the accused persons had conspired together
in order to commit robbery on Yousuf (PW-6). Second aspect
of the matter was as to whether prosecution was able to prove        0
that as a result of the aforesaid conspiracy these accused
persons had, in fact, committed dacoity in the said bus on the
given date and time.

      8. In so far as charge of conspiracy is concerned, it was
noted by the trial court that the ~vidence produced in support       E
of this charge was PW-19 Allabaksh and Yusuf (PW-6). The
statement of PW-19 was that he knew Yusuf (PW-6) and
Sitaramulu (A-6). One day before 9.30'a.m. before the alleged
incident, eight accused persons were seen standing near the
shop of Accused No.1 which was 50 km away from the shop              F
of A-6 Siddaramyiah beneath the tree. A-6 was telling other
accused persons that on the next date Yousuf was going out
of town and other accused had to do their work. Thereafter they
dispersed. On the next day, this witness (PW-19) came to know
that there was a robbery in which Yousuf was robbed of Rs.3.60       G
Lakh. The learned Sessions Judge, after analyzing the
testimony of PW-19, as well as PW-6 on this aspect came to
the conclusion that the charge of conspiracy was not proved
inasmuch as, the mere fact that eight accused persons were
gathered on the previous day could not automatically connect         H
    24       SUPREME COURT REPORTS                  [2014] 9 S.C.R.


A to the commission of alleged crime. The relevant discussion
  in the judgment of the learned trial court on this aspect reads
  as under:

         "The requirement of criminal conspiracy, there must be an
B        existence of an agreement to commit an offence. The
         conspiracy can be proved by the direct evidence though
         the same is rarely available, or by circumstantial evidence.
         As could be seen from the requirement of law there must
         be an agreement between the accused to commit an
         unlawful act lead to inference of conspiracy. The evidence
c        of this Allabakash is not corroborated with any other
         evidence. He' never speaks about anything unlawful act to
         be done and anything about an agreement between the
         parties with regard to the commission of an unlawful act.
         Necessary ingredients are not established by leading the
D        evidence of this PW-19 during the course of cross-
         examination he has admitted that the accused were talking
         in open space. The publics were passing besides the
         accused: He did not hear what they were talking. He did
         not suspect about the accused. Two months after the
E        incident the police came and enquired him. Seetharama
         A-6 is a merchant and good man. On that day whatever
         the accused were talking was not in respect of any
         wrongdoing. These answers of this witness during the
         course of cross-examination clearly gives goodbye to the
F        theory of criminal conspiracy. Therefore, the materials
         available on record are not sufficient to establish that there
         was a criminal conspiracy among the accused in order to
         commit the offence."

G      9. It would be pertinent to mention that even the High Court
  has not discarded the aforesaid findings of the trial court on
  the charge of conspiracy. As would be seen hereinafter, the
  reason for convicting five accused persons, out of eight who
  stood triFtl, is that testimonies of other witnesses who were in
H the bus and had purportedly seen the said accused persons.
      THIMMAREDDY v. STATE OF KARNATAKA                       25
                [A.K. SIKRI, J.]
For want of establishment of charge of conspiracy A-6 and A-         A
4 are let off by the High Court also as they were not named by
any of the eye witnesses. We are, therefore, quite in agreement
with the conclusion of the trial court that charge of con~piracy
under Section 120-8 of IPC has not been proved.
                                                                     B
     10. In so far as the charge under Section 397 IPC is
concerned, the prosecution had relied upon the testimony of
PW-1 (conductor of the bus), PW-2 (driver of the bus), PW-6
Yusuf (one of the victims), PW-7(owner of a hotel), PW-9
(cleaner in a tempo), PW-16. Testimony of PW-9 has not been          C
believed either by the trial court or the High Court and therefore
no discussion about his deposition is necessitated.

     11. PW-1 who is the conductor of the bus and an eye
witness was the complainant as well. Apart from narrating the
incident of dacoity, the material part of his testimony is that he   D
had identified A-1 and A-5 and their overt acts. As per him,
six persons boarded the bus near the Bailmerchad Cross and
accused 1and 5 came near the driver. A-1 assaulted and
threatened him with a sickle and asked him to stop the bus.
PW-1 while deposing in Court identified A-1 and A-5 who had          E
snatched. his cash bag.

    12. PW-2 (driver), Likewise, deposed that he was ~it from
the back side by hand and a chopper was put on his neck.
When he turned around he saw it was accused No.2 who hit             F
him with his hand and put a chopper on his neck and as a result
he suffered an injury. According to him he identified A-2.

     13. PW-6 who is the main victim and one of the
passengers deposed to the effect that he was carrying with him
cash of Rs.3,53,000/-. He boarded the bus which was forcibly         G
stopped by two·persons who came near him and put a dragger
on the left side of his chest. These two persons were A-1 and
A-3 whom he identified.

     14. PW-7 is owner of a hotel and according to him,              H
     26        SUPREME COURT REPORTS                  [2014] 9 S.C.R.


A    accused persons had come and stayed there and he identified
     two of them, namely, A-1 and A-2 (at this stage we would like
     to point out that even the High Court has not returned the finding
     of guilt by referring to his testimony which in any case is not
     connected with the actual commission of offence).
B
          15. PW-15(Udayakumar) is a Sales Executive Manager
     in Hubli Pipe Corporation. He deposed that he was also in the
     bus and was assaulted by a knife on his left hand wrist by A-7
     and his bag was snatched away. When A-7 took his bag he
     stood up but was again assaulted. He identified two persons,
C    namely A-7 and A-8 stating that A-7 caused injuries on him by
     knife and A-8 also assaulted him.

          16. Apart from relying upon the aforesaid eye witnesses
     who deposed against thee accused persons at the time of trial,
D    the prosecution also stated that after the arrest of the accused
     persons Test Identification Parades (TIPs) had been
     conducted. In these TIPs, PW-2, PW-6 and PW-16 were called
     and participated who identified A-2, A-1 and A-3, as well as
     A-7 and A-8 respectively.
E
        17. The trial court after analyzing the testimony of the
  aforesaid witnesses refused to believe them. Pertinent
  observation which is made by the trial court in this behalf is that
  when the statements of these witnesses were recorded under
F Section 161,Cr.P.C., at the time of investigation by the police
  officer, none of these witnesses stated that they had seen the
  accused persons and were.in a position to identify them if they
  were brought before them. The trial court referred to Karnataka
  Police Manual and observed that the investigation was not done
  in accordance with the procedure for identifications contained
G therein. His analysis in this behalf reads as under:-

          "After seeing the above statement the victims of the
          incident, before the police, it is clear that none of the victim
          has given any clue to identify the accused persons. Now
H·        the question is what are the materials available with the
THIMMAREDDY v. STATE OF KARNATAKA                        27
          [A.K. SIKRI, J.]
police to search these accused has to be looked into. A
Here I would like to refer the Karnataka Police Manual,
where a chapter is provided, which gives the procedure
for identifications. They have to ascertain the kind of light,
which was present at the time of incident. The details of
the opportunities of seeing the accused at the time of B
offence. Anything outstanding in the features or conduct of
the accused which impressed him (identifier). The distance
from which he saw the accused and the context of time
during he say the accused. It is mandatory on the part of
the 1.0. to record in the case diary, the description in detail c
with the above said ingredients. As could be seen from
the case diary available on record there are no materials
placed by the prosecution to show that they had
identification feature of the accused with them after the
incident. Therfore, there is a lapse on the part of the D
investigating agency to collect t.he material information,
which gives to the prosecution an opportunities to identify
the accused. But they have failed to establish the identify
of the accused persons of this case. Therefore, as could
be seen from the statements of eye witnesses who had
suffered injuries in the hands of the Dacoits who had an E
opportunity of seeing the acc_used with very close range
have not given any description of the identification feature
of the accused.

The next stage comes where the 1.0. gets an opportunity F
of examining the witnesses who have said to have seen
the accused persons. The important witnesses are PW-8
Shankrappa and PW-9 Khaja Pasha. Their statements
were also recorded by the police. The said Khaja Pasha
who is the Tempo cleaner, wh0 says that he came near G
Gorkal cross at about 7.00 a.m. there 6 persons were
boarded his tempo. Three of them were not wearing
chappals and they were talking in telgue, aged about 25
to 30 years, wearing pant and shirt and holding a plastic
bag and legs of the persons were with full of mud. They H
    28       SUPREME COURT REPORTS                 [2014] 9 S.CR


A        were also taken the tickets and got down in Gilleasugur.
         Again they boarded to Mantralayam bus. He says that if
         the person were shown to him he can identify the persons.
         Therefore, this witness had an opportunity to see the
         accused persons from very nearer point and he was
B        capable of giying the identification feature of the accused,
         which were not recorded in his statement by the 1.0."

         18. The trial court also found serious loopholes in the
    manner in which investigation was carried out. leaving serious
C   flaws and the discussion exposing these flaws in the judgment
    of the trial court which reads as under:

         "In this case the prosecution has lost several valuable
         opportunities where they could very good material for
         finding out those culprits. I have already discussed above
D        that the fingerprints of the accused persons were available
         on the handles of the bus fixed near the door. These
         fingerprints were not lifted by the 1.0. for comparing with
         the fingerprints of the accused persons. Secondly, the
         footprints of the accused persons were available in the land
E        at Kurdi village they were also not collected by the agency
         in order to compare them with the accused persons. The
         prosecution should have collected some important
         identification features in order to fix the accused in the
         offence. The materials aspects are absent then how he can
F        connect this accused to the crime is a big question.
         Therefore, the circle is incomplete. The link to connect the
         accused with the crime has lost at Mantralayam. Because
         all of a sudden the 1.0. visits to Swagat Lodge and verified
         the register and he gets suspicion in the name of one
         Timmaredtty. The contention of the defence Advocate is
G
         that Mantralayam is such a place, where the passangers
         come from .various places, where the passengers come
         from various places, and there is no direct bus facility to
         go their place. Therefore, they got down at Mantralayam
         and take the rooms for bathing and performing the Pooja.
H
     THIMMAREDDY v. STATE OF KARNATAKA                    29
               (A.K. SIKRI, J.]
    After completion of pooja, immediately they will vacate the A
    rooms and they continue their travel to their respective
    places. Can we cannot rule out and we have to differentiate
    from such type of passengers with the accused. Then, how
    the 1.0. came to know that Timmareddy was one of the
    accused persons, who gave the information to him. As B
    could be_ seen from the eye witnesses have given any
    identification feature with regard to the accused. Even
    during the second stage of the investigation neither the
    Shankarappa nor Khaja Pasha have given identification
    feature of the accused. Then the 1.0. says that an c
    information has given the clue of the accused. The only he
    will capable to give the clue with regard to the accused
    persons. Under such circumstances, there is incomplete
    investigation and without that link we cannot connect the
    crime with the accused and here the prosecution has 0
    completely failed to establish the link of the offence with
    the accused. Therefore, the decision relied upon by the
    prosecutor are not applicable to the present circumstances
    of the case at hand. Because the connecting link is lost in
    order to identify the accused."
                                                                E
     19. In so far as recovery on the basis of purported voluntary
statement of the accused persons is concerned, the trial court
found that while recording alleged voluntary statement of the
accused persons, procedure as laid down under Sections 165
and 166 of the Code of Criminal Procedure was not followed. F
The accused from outside the State were arrested within the
limits of some other police station without following the
procedure under Section 166 Cr.P.C. It is further pointed out
that when the accused persons were brought in Manvi Police
Station and their voluntary statements were allegedly recorded, G
the police committed major irregularities.which were incurable.
According to the prosecution the voluntary statements were
recorded on 29.10.2004 in respect of Timmareddy,
Venkateshagouda, T.Laxman, Anjaneyallu, P.Oevanna by PW-
23. PW-23 says that after the arrest of the above said accused H
    30        SUPREME COURT REPORTS                 [2014] 9 S.C.R.


A   persons he requested the Tahsildar Manvi to provide 2 official
    panchas at 4.00 A.M. In the meanwhile, he recorded the
    voluntary statements of A-1 to 5 as per Ex.p-66 to P-70.
    Thereafter, on the basis of the said voluntary statements and
    in the presence of 2 official panchas deputed by the Tahsildar j
B   Manvi, he proceeded to recover the cash from their houses
    under the panchanamas.                                         '

        20. The aforesaid procedure is commented by the trial
    court in the following manner:
c        "Now th,e question that would arise is whey the police
         officer has requested the Tahsildar to provide Government
         official to act as panchas. What is the reason for taking
         the Government official to act as panchas. According to
         the procedure, the police officer has to take. the assistance
D        of local people as panchas, and he must give reasons if
         he does not take the assistance of local people. Before
         recording the voluntary statements he requests the
         Tahsildar for giving panchs. How he came to know whether
         these accused persons would give voluntary statements
E        regarding recovery of the cast. Then o the basis of. those
         voluntary statements the amount was recovered from the
         respective houses and subsequently, the amount was
         recovered from other accused persons as per their
         voluntary statements. The 1.0. has not stated about the
F        details of the panchnamas under which the recovery was
         made. It has ·to be proved by the prosecution by leading
         cogent evidence."

          21. On the basis of the aforesaid analysis, the trial court
    did not believe the version of eye witnesses, faulty TIP as well
G   as legality of the recoveries at the instance of the accused
    persons. With this discussion, the trial court concluded that even
    if there was some incriminating material against the accused
    persons that was not sufficient to prove the guilt of the accused
    persons beyond reasonable doubt as cogent evidence was not
H
    · THIMMAREDDY v. STATE OF KARNATAKA                     31
                [A.K. SIKRI, J.]
produced and the investigation was faulty. This resulted in the   A
acquittal of all the persons by the trial court.

     22. Coming to the judgment of the High Court, we find that
the High Court has referred to 'the testimonies of PW~1.2 ,6, 7
and 15 briefly and highlighted the fact that they had identified, B
between themselves, A-1,A-2,A-5,A-7 and A-8. Since these are
the eye witnesses who had identified these five accused
persons, the trial court failed to consider the statements of these
witnesses and a generalized finding was recorded to the effect
that the accused persons had not been identified. Primarily, on
this ground and believing the aforesaid persons' version as eye C
witnesses, the High Court has convicted these five accused
persons.

     23. Mr. K.L. Janjani, learned counsel appearing for the
appellants questioned the wisdom of the High Court in arriving    D
the aforesaid finding by making following submissions:

      (1) The date of alleged offence was 8.10.2004 an·d the
accused persons were arrested on 28.10.2004. However, first
TIP was conducted on 9.11.2004 and second TIP on 30.1.            E
2005. Therefore, this abnormal delay in conducting the TIPs,
that too when the accused pers~s were not previously known
to the alleged eye witnesses rendered the entire exercise of
TIPs as invalid to which no crede.nce could be given. He
referred to few judgments in support:
                                                                  F
     In Hari Nath vs. State of U.P. 1988 (1) SCC 14 wherein
reliance was placed on the following observations:

    "Even on the premise that there w·as no such prior
    acquaintance, the evidence establishing the identity of the G
    culprits assumes particular materiality in a ca.se, as here,
    of a dacoity occurring in the darkness of the night. The
    evidence of tne test identification would call for a careful
    scrutiny. In a case of this kind where the eyewitnesses, on
    their own admission, did not know the appellants before H
    32        SUPREME COURT REPORTS                  [2014] 9 S.C.R.


A        the occurrence, their identification of the accused persons
         for the first time in the dock after a long lapse of time would
         have been improper. In Halsbury's Laws of England
         (Fourtll Edn., Vol. 11, para 363) this passage occurs and
         is worth recalling:
B
         "It is undesirable that witnesses should be asked to identify
         a defendant for the first time in the dock at his trial; and
         as a general practice it is preferable that he should have
         been placed previously on a parade with other persons,
         so that potential witnesses can be asked to pick him out."
c
         Other judgment relied upon was on Rajesh Govind
    Jagesha vs. State of Maharashtra 1999 (8) SCC 428 wherein
    the proposal of law is discussed as under:

D        "This Court in State of A.P. v. M. V. Ramana Reddy (Dr)
         held that where there is unexplained delay in holding the
         identification parade, the evidence of the prosecution
         regarding identity of an accused cannot be held absolutely
         reliable and in such a case the accused is entitled to the
         benefit of doubt. The explanation for delay in holding the ·
E
         identification parade offered by the prosecution in the
         instant case is not trustworthy. The non-availability of a
         Magistrate in a city like Bombay for over a period of five
         weeks from the date of the arrest of Accused 1 and 2 and
         three weeks from the arrest of Accused 3 and 4 cannot
F        be accepted. It is not denied that scores of Magistrates
         are available in the city of Bombay and that the investigating
         agency was not obliged to get the parade conducted from
         a specified Magistrate. The High Court was not justified
         in holding that. the ·parade could not be held early on
G        account of alleged difficulties of the Special Executive
         Magistrate. It was not for the defence to prove that the
         parade held was suffering from legal infirmities because,
         admittedly, the onus of proof in criminal case never shifts
         as the accused is presumed to be innocent till proved
H        otherwise, beyond all reasonable doubts, by the
     THIMMAREDDY v. STATE OF KARNATAKA                           33
               [A.K. SIKRI, J.]
    prosecution. In cases where a person is alleged to have             A
    committed the offence and is not previously known to the
    witnesses, it is obligatory on the part of the investigating
    agency to hold identification parade for the purposes of
    enabling the witnesses to identify the person alleged to
    have committed the offence. The absence of test                     B
    identification may not be fatal if the accused is known or
    sufficiently described in the complaint leaving no doubt in
    the mind of the court regarding his involvement. Such a
    parade· may not be necessary in a case where the
    accused person is arrested on the spot immediately after            c
    the occurrence. The evidence of identifying the accused
    person at the trial, for the first time, is from its very nature,
    inherently of a weak character. This Court in Budhsen v.
    State of U.P. held that the evidence in order to carry
    conviction should ordinarily clarify as to how and under            0
    what circumstances the complainant or the witnesses
    came to pick out the accused person and the details of
    the part which such persons played in the crime in question
    with reasonable particularity. The test identification is
    considered as a safe rule of prudence for corroboration.            E
    Though the holding of the identification proceedings may
    not be substantive evidence, yet such proceedings are
    used for corroboration purposes in order to believe or not
    the involvement of the person brought before the court for
    the commission of the crime. The holding of identification
    parade being a rule of prudence is required to be followed          F
    strictly in accordance with the settled position of law and
    expeditiously. The delay, if any, has to be explained
    satisfactorily by the prosecution."

     (2) His next submission was that PW-1 and ·PW-7 had                G
identified A-1 and A-5 in the court and PW-7 had identified A-
1 and A-2 in the court. However, they were never called, at the
time of conducting TIP.

    (3) In respect of all these eye witnesses, namely PW-               H
    34        SUPREME COURT REPORTS                 (2014) 9 S.C.R.


A 1,PW-2, PW-6, PW-7 and PW-15 his submission was that the
  High Court had simply taken into account their version in the '
  examination-in-chief and did not discuss the cross-examination
  at all, which exposed the falsity of their statement.

8        (4) It was further argued that PW-2 (driver) had categorically
    stated that the faces of all these persons who boarded the bus
    gathered with kerchief and since their faces were hidden there
    was no question of identifying these persons by any of the
    witnesses.·

C        (5) It was also submitted that ther-e is no discussion in the
    judgment at all as to how the trial court went wrong and the
    reasons given. by the trial court particularly with reference to
    Karnataka Police Manual and faulty investigation are not dealt
    with at all.
D
       (6) Another submission of the learned counsel was that at
  the time when their statements were recorded under Section
  161,Cr.P.C. none of these witnesses stated that they were in
  a position to identify the culprits. There was, thus, clear violation
E of the procedure contained in Karnataka Police Manual and it
  was a clear case of improvement by these witnesses at a later
  stage either in belated TIPs or before the court when they were ..
  examined as witnesses.

       24. Mr. C.B.Gurutaj, learned counsel appearing for the
F State referred to the testimonies of the aforesaid eye witnesses
  and argued that the eye witnesses were believable and the
  conviction based on their testimony was just and legal. In a
  sense, he relied upon the discussion contained in the judgment
  of the High Court returning the finding of guilt against the
G appellants.

       25. After considering the respective submissions and
  going through the record, we are inclined to accept this appeal
  as we are of the opinion that High Court has committed grave
H error in recording the conviction solely on the basis of the
       THIMMAREDDY v. STATE OF KARNATAKA                        35
                 [A.K. SIKRI, J.]
 statement of the so called eye witnesses, and wrongly believing      A
 their version. From the discussion contained in the judgment
 of the High Court, it becomes apparent that except stating what
 these witnesses have mentioned in their examination~in-chief,
 no further discussion is there in the judgment and the testimony
 is of all these persons are believed as gospel truth. The High       B
 Court was duty bound to consider their testimonies in entirety
 i.e. along with the cross-examination in order to find out their
 truthfulness and to see whether their versionln examination in
 chief has remained unshaken and worthy of credence. No such
 exercise is done at all. No doubt, the trial court has indulged in   C
 wholesome discussion while discarding the testimony of eye
 witnesses. Fact remains that while doing so, the trial court
 discussed the infirmities in the procedure adopted which led
 to the disbelieving of all these witnesses. The discussion of the
 trial court adversely commenting upon the faulty procedure and
 imperfect investigation is completely ignored and sidelined by       D
 the _.,High Court.

        26. In so far as eye witnesses are concerned, as pointed
  out above, the High Court has accepted his truthfulness and
  relied upon the testimonies of PW-1 (conductor who had              E
  identified A-1 and A-5), PW-2 (the driver who had identified A-
  2), PW-6 (victim who had identified A-1 and A-3) and PW-15
  (passenger who had identified A-7 and A-8). It is stated by the
- High Court that these witnesses stood by their statement, their
  evidence is unimpeachable and there are no discrepancies in         F
  their evidence. However, as pointed out, these observations are
  on the basis of examination in chief of these witnesses without
  taking into consideration their cross-examination. In so far as
  PW-1 is concerned, in his cross-examination he has accepted
  the faces of the two persons covered with kerchief. If that was     G
  so, he has not at all explained as to whether their faces were
  uncovered at any point of time how and when he was able to
  see their faces. He did not explain in his. statement recorded
  under Section 161 Cr.P.C. as to why he did not state he would
                                                                      H
    36       SUPREME COURT REPORTS                 [2014] 9 S.C.R.


A   be in a position to identify two persons. In that statement, he is
    conspicuously silent about having seen two persons.

         27. Likewise, in so far PW-2, driver is concerned, apart
  from the features pointed out qua PW-1 which apply in his case,
  he mentioned in his examination in chief that "somebody hit me
8
  from back side by means of hand. They put chopper on neck
  from back side." In his cross-examination he not only accepted
  that when he was hit on the back of the neck, he did not shout,
  he further specifically stated that "there was no chance for me
  to see back side since the vehicle w~s in a running vehicle. The
C vehicle was moving at the speed of 20 kms. I did not turn back
  till the accused get down from the bus."

        28. In so far as PW-6 is concerned, he has allegedly
   identified A1 and A-3. Out of these two i.e. A-1 is identified by
D PW-1 as well. However, as stated above PW-1 mentioned that
   face of A-1 was covered. Again, he had not explained as to
   under what circumstances he could identify these accused
   persons. PW-15 was another passenger in the bus who has
   identified A-7 and A-8. He, inter-alia, has stated that two
E persons had knife on the chest of PW-6 and snatched his bag
   and came towards him. He was assaulted by means of knife
   on his left hand wrist and his bag was also snatched. The two
   persons who snatched the bag from PW-6, according to PW-
   6 were A 1 and A-3. However, PW-15 identified two other
F persons namely A-7 and A-8. That apart he has also admitted
   that one of them had covered his face that one person has
 · closed his face upto nose· by means of the cloth. In these
   circumstances, how he could identify that person is not
   explained.

G      29. There is another important aspect which cannot be lost
  sight of, namely as per PW-1 the faces of all the accused
  persons were covered with kerchief. It is not at all stated by any
  of the witnesses as to when these persons removed those
  kerchief and their faces became naked which could be seen
H by these witnesses. PW-1 was subsequently confronted with
      THIMMAREDDY v. STATE OF KARNATAKA                         37
                [A.K. SIKRI, J.]
tile statement under Section 161, Cr.P.C. to this effect that in A
the cross-examination he accepted that he made the statement.
Therefore, itwas for him to clarify as to under what
circumstances he could see the faces of A-1 and A-5 on the
same ground how their faces could be seen by other witnesses,
remains a mystery which is not explained by the prosecution. B

       30. In this backdrop, the flaws in the investigation pointed
. out by the trial court become crucial. Curiously, High Court has
  not even adverted to those flaws.

   - 31. We are, therefore, of the opinion that the judgment of C
the High Court holding the appellants guilty of the offence is
unsustainable. The same is accordingly set aside. This appeal
is allowed holding that charge against the .appellants under
Section 397 IPC read with Section 120-B has not been proved
beyond reasonable doubt.                                        D

      32. The appellants are entitled to be released forthwith and
it is directed accordingly.

Bibhuti Bhushan Bose                                 Appeal allowed.