2024 INSC 482 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 129 OF 2012

VISHWANATHA …APPELLANT

VERSUS

THE STATE OF KARNATAKA

BY THE SECRETARY, HOME DEPARTMENT …RESPONDENT

J U D G M E N T

SUDHANSHU DHULIA, J.

1. The appellant in this Criminal Appeal challenges judgement

and order dated 06.06.2009 passed by the High Court of

Karnataka which has allowed the Criminal Appeal of the

State; thereby reversing the order of acquittal of the Trial

Court, thus convicting the present appellant of offences

under Sections 302 and 450 read with Section 34 of the

Indian Penal Code and sentenced him, inter alia, to life

imprisonment, under Section 302 of IPC.

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2. The case of the prosecution is that Rohini (PW-1) and

Rohithaksha (PW-3) were residing with their mother Devaki

(deceased; aged 86 y/o) at Kudupu, Mangalore. Devaki was

strangulated to death by the present appellant and co -

accused Ravikumar. On 26.12.2000 when PW -1, PW-3 and

PW-4 (wife of PW-3) were not present in their home, and their

86-year-old mother was alone, the present appellant and the

co-accused broke into their house with the intention to

commit robbery and killed Devaki. A written complaint was

filed before the police at 2:30 p.m. by PW-1 which formed the

basis of the FIR which was registered at PS: Mangalore Rural

Circle at approximately 3:00 p.m, in which the two accused

Ravikumar and the present appellant Vishwanatha were

named.

3. In the FIR, it was mentioned that on that fateful day

(26.12.2000), she (i.e. PW-1/Complainant), had gone out for

some work and when she returned home at about 12:30 in

the afternoon, she heard some sound coming from inside her

house which alerted her, but she could not enter the room as

it was locked from inside. PW-1 then raised an alarm and as

a result PW-2, who is a neighbour came for her help. Then

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both PW-1 and PW-2 managed to peep through the window of

the bedroom, where they saw that the accused had twisted a

cloth around the neck of the deceased (PW-1’s 86-year-old

mother), which they were pulling at the two ends, each

holding one end of the rope. PW-1 recognised the first

accused as Ravikumar as he was the nephew of PW-4 (the

daughter-in-law of the deceased). PW-1 called Ravikumar by

name which alerted the two and they escaped.

4. The police submitted its chargesheet on 05.03.2001 against

both the accused, who were caught the same day. The case

was committed to Sessions and ultimately assigned to the

Court of II

nd Additional Sessions Judge, Mangalore who

framed charges against the accused on 20.09.2001 under

sections 450 and 302 read with 34 of IPC. The prosecution

examined 18 witnesses and 11 documents as exhibits placed

by the prosecution. The Sessions Judge passed its order on

18.12.2001 acquitting both the accused.

5. What weighed with the Sessions Court was the apparent

contradictions between the oral testimony and autopsy

report. PW-1 and PW-2 who were eye-witnesses to the crime

and had identified both the accused and had deposed that

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the two had committed the murder of Devaki. Dr. Bhaskar

Alva, (PW-6) Sr. Specialist in Wedlock District Hospital,

Mangalore who conducted the post-mortem of deceased-

Devaki on 26.12.2000 had given his opinion that the cause of

death was asphyxia as a result of strangulation. The

Sessions Court observed that PW-1 and 2 had deposed that

cloth was tied around the neck of the deceased which was

used to strangulate her, however, PW-6 had deposed there

were no ligature marks on the back of the neck of the

deceased. Under these circumstances, the Sessions Court

discredited the two eye-witnesses, PW-1 and PW-2 and also

noted the discrepancies in the deposition of PW-1 as regards

the identity of the appellant and consequently his role in the

crime.

6. The appeal of the State against this acquittal was allowed by

the High Court on 06.06.2009, which reversed the order of

acquittal, and found both the accused guilty of offences

under Sections 302 and 450 read with Section 34 of IPC and

sentenced them to Rigorous Imprisonment for 5 years and

Rigorous Imprisonment for life along with fine of Rs. 5,000/-

respectively. The High Court held that the contradictions in

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the case of prosecution were minor and not material enough

to warrant acquittal of the accused persons. These were the

observations made by the High Court at paragraph 27 of the

Impugned Judgement:

“27. Test Identification Parade not being

conducted for the identification of accused No.

2 is also not fatal to the prosecution because

by 6’O clock in the evening both accused Nos.

1 and 2 were apprehended and produced

before the investigating officer P.W.18. It is

also apparent on record that when accused

No. 1 uttered the name of accused No. 2 both

P.Ws. 1 and 2 learnt the name and they had

seen exactly what was happening inside the

bedroom. Therefore, question of mistaking in

identifying accused Nos. 1 and 2 does not

arise. However, both P.Ws. 1 and 2 identified

accused Nos. 1 and 2 before the Court. The

time gap between the date of crime and the

evidence being only 10 months, we are of the

opinion that it was quite possible for any who

witnesses and especially P.W.1 to remember

the details of the assailants who took the life

of her mother. Therefore, this discrepancy also

would not come in the way of the

prosecution.”

7. Shortly after the Judgement was passed by the High Court,

Ravikumar, who was accused no. 1 passed away . The

present criminal appeal thus has been filed on behalf of the

remaining accused Vishwanatha.

8. The learned counsel on behalf of the appellant would argue

that PW-1 and PW-2 are not credible witnesses pointing

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again towards the contradictions in their testimony and

autopsy report. He would submit that there has been no test

identification parade (hereinafter referred to as ‘TIP’) to

establish the identity of the appellant who was a total

stranger to the two witnesses and in the absence of TIP, the

appellant cannot be convicted, as then it cannot be said that

the prosecution has proved its case beyond a reasonable

doubt.

9. The learned counsel for the State would argue that the High

Court has rightly observed that this is not a case of mistaken

identity. Further, TIP is not a substantive piece of evidence

and absence of TIP would not be fatal for the prosecution

case as PW-1 & PW-2 had already identified the accused

before the court. As far as discrepancies in the testimonies of

the witnesses are concerned, they are minor in nature and do

not affect the case of prosecution in any manner.

10. We have heard the submissions of the learned counsel of the

State and that of the State and also perused the material on

record.

11. In the present case, there are concurrent findings by both the

courts below as to the death of the deceased Devaki, being a

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homicidal death and these findings are corroborated by the

testimony of PW-6, the doctor who conducted the autopsy

and issued the post-mortem report on 26.12.2000. There

cannot be any doubt that the death of the deceased was

homicidal and the only question for determination before this

Court is whether it is the accused persons who were

responsible for this death?

12. PW-1 and PW-2 are the star witnesses of the prosecution.

They had deposed during the trial that the two accused had

strangulated the deceased to death. PW-1 had said that on

the day of the incident, she left home at around 9:30 in the

morning and when she returned at 12:30 in the afternoon

she found that her room was bolted from inside and then she

heard her mother screaming. It was then that she called PW-

2 for help. PW-1 further states that she saw through the

window both the accused strangulating her mother by

pulling the rope at the two ends. She further states, that

when PW-1 called one of the accused Ravikumar by name,

who she immediately recognised being their relative,

Ravikumar called the name of the other accused i.e., the

present appellant and the two escaped. The relevant extract

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of the deposition given by PW-1 on 22.10.2001 before the

trial court is reproduced below:

“…When I came to courtyard of our house I

heard sound full of pain and scream. I found

that both the bolts of the house was locked

inside. Immediately I called my neighbour

Rajesh. He came there. Since Northern side of

window was kept opened my self and Rajesh

peeped inside the room…………we saw in the

western side of the room and found Accused

Ravi, who is standing before the Court now

and he used to twist the cloth rope and put

round the neck and caught one end of rope.

Another end of the rope was in the hands of

another person. They were tightening the

rope, which was round the neck of my mother.

I made a big noise. I addressed Accused Ravi

“what he is doing” (In Tulu ‘Dane Malpuva’).

What is he doing, I asked. Immediately he

(Accused Ravi) told Accused Vishwananth

that “the work is spoiled”, you run (In Tulu

‘KelasaKettand’). Said accused ran through

the back door of the house, after unlocking

bolts. My neighbour Rajesh followed them in

the back of them……..when seeing my mother

I found her right leg and right hand was in

twisting condition and found no clothes on the

body of my mother and found little

temperature in the body. Immediately called

Dr.K.B Shetty by phone…..After 10 minutes

from my phone call, doctor came there. After

coming to our house, said doctor examined my

mother and told us that she was dead….”

PW-2 also claimed to have seen the incident from the window

along with PW-1 and he then narrates his unsuccessful

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attempt to catch the accused persons. The relevant portion of

PW-2’s examination-in-chief is as follows:

“When seeing through the window we found

mother of Rohini (PW -1), Smt. Devaki

(deceased) was on the cot. On the right side of

Devaki, Ravikumar was standing and in

another side another accused was standing.

We found cloth was rolled round neck of

Devaki. The one end of cloth rope was found

in the hands of 1st Accused and cloth ropes

another end was found in the hands of 2nd

Accused. Both accused were, found dragging

the cloth rope on both sides…………Accused

ran away through back door of the house.”

13. The above evidence of PW-1 and PW-2, all the same, does

not corroborate with the post mortem report, which shows

that the ligature marks, though round the neck, but are

missing on the back of the neck. If the testimony of PW-1

and PW-2 is to be believed then the ligature marks should

have been all round the neck, including the back. The ante

mortem injuries in the post mortem report are as follows:

“On examination, I found the following

external injuries:

(i) Ligature mark round the neck above the

thyroid cartilage, extending from 1 angle of

mandible to the other- size 8”× ¾”

(ii) Finger nail marks over the tip of the

nose.

(iii) Fracture of both legs below the knee and

fracture of right forearm below the elbow”

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The report does suggest that the deceased was indeed

strangulated to death. But it could not be in the manner as

seen by PW-1 and PW-2 (who had seen the two accused

strangulating the 86 years old woman by pulling both ends

of the rope) as the ligature mark extended only from one

angle of the mandible to the other and no such mark was

seen at the back of the neck. Had the strangulation been in

the manner as described by PW -1 and PW-2, the ligature

marks would have been different.

14. The aspect which perhaps weighed heavily in the mind of

the Trial Court which had acquitted the two accused was

the fact that the first complaint, inquest report, the ‘autopsy

report’ and the ocular evidence of PW-1 (also of PW-2) did

not match. Having regard to the positioning of the bed on

which the deceased was allegedly strangulated, the trial

court has given a finding that it would be highly improbable

for two persons to strangulate the deceased by pulling the

two ends of the rope of cloth from behind, since the cot was

touching the northern and western walls. Moreover, the fact

that Dr. K.B Shetty, (who was the first doctor to examine the

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deceased within 10 minutes of the incident), was never

examined by the prosecution . The absence of any

reasonable explanation as to how PW-1 reached her house

in a short span of time of 2

1/2 hours, after leaving home at

10:00 AM

1, creates doubt on the prosecution story. Trial

Court also expressed its doubt as to the involvement of the

present appellant (Accused No.2), as no TIP was conducted.

This aspect was argued at length before this Court as well,

since it goes to the very root of any criminal trial.

Admittedly, no TIP was conducted in the present case. This

Court in Mulla v. State of U.P., (2010) 3 SCC 508 had

emphasized the scope and object of TIP as follows:

“55. The identification parades are not

primarily meant for the court. They are meant

for investigation purposes. The object of

conducting a test identification parade is

twofold. First is to enable the witnesses to

satisfy themselves that the accused whom

they suspect is really the one who was seen

by them in connection with the commission of

the crime. Second is to satisfy the

investigating authorities that the suspect is

the real person whom the witnesses had seen

in connection with the said occurrence.”

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The complaint (Ex.P1) given by PW-1 to the PSI on the spot, mentions that she left her

house at around 10.00 am, whereas in her deposition before the Trial Court, she mentions

the time as 9.30 am.

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15. This Court in Malkhansingh v. State of M.P (2003) 5 SCC

746

2 has held that:

“The evidence of mere identification of the accused

person at the trial for the first time is from its very

nature inherently of a weak character. The

purpose of a prior test identification, therefore, is

to test and strengthen the trustworthiness of that

evidence. It is accordingly considered a safe rule

of prudence to generally look for corroboration of

the sworn testimony of witnesses in court as to the

identity of the accused who are strangers to them,

in the form of earlier identification proceedings.”

In the case at hand, it is an admitted position that the

Appellant was not known to any of the witnesses and more

pertinently, the two eyewitnesses, PW1 and PW2.

16. Coming back to the facts and circumstances of the present

case, it is an admitted fact that Ravikumar (Accused No.1,

now deceased) was known to the eyewitnesses and was also

related to the complainant. Hence, there was no requirement

of TIP as regard to Ravikumar (accused no.1). But the case

of appellant- Vishwananth stands on a different footing. He

was a total stranger to the two eye witnesses i.e. PW-1 and

PW-2. The name ‘Vishwanath’ came to their knowledge, only

after Ravikumar (Accused no. 1) called his co-accused, by

name exhorting him to run. In a case where the identity of

2

Para 7.

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the accused is not known and TIP has not been conducted,

the court has to see if there was any description of the

accused either in the FIR or in any of the statement of

witness recorded during the investigation. There is none in

the present case.

The identification of an accused in court is acceptable

without a prior TIP and absence of TIP may not be fatal for

the prosecution. It would depend on facts of each case. In the

case at hand, though the appellant was identified in court by

PW-1 and PW-2, the Trial Court did not attach much weight

to it, as no identification proceedings were conducted, and

the Court found it unsafe to acknowledge the identity merely

on the basis of identification in the Court.

In the present case, where there are six persons by the name

of ‘Vishwanatha’ in the locality and where this Court has

doubts on the presence of the two star witnesses PW-1 and

PW-2 (who have identified the accused), we are of the opinion

that the identity of the present appellant remained in doubt.

17. Another fact which casts a doubt on the identity of the

present appellant, is that there is no description in the FIR of

‘Vishwanatha’ except that his name is mentioned. He then

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becomes the first of the two to be arrested by the police.

Learned counsel of the appellant would submit that there

were six persons by the name of ‘Vishwanantha’ in Kudupu

village at the relevant point of time, a fact which was placed

by the defence during trial, which has not been confronted.

In such a situation, it was the duty of the prosecution to

show as to how and on what basis, the appellant came to be

apprehended by the police. The Sub-Inspector, PS-Mangalore

Rural (PW-19), who apprehended the appellant, had also

failed to explain how he came to apprehend the appellant

without any information regarding his description. In his

examination-in-chief, the Sub-Inspector (PW-19) explained

the arrest of the appellant in the following manner:

“2. In respect of this case, crime no.388-2000

on 26.12.2000 my inspector instructed me to

find out the accused. The same day myself

and my staff taken into custody the accused

Vishwananth at 4:30 PM near Goraksha

Jnana Mandira, Near Kadri Park, Mangalore.

Said accused is before the Court. I identify

him. With the help of Vishwanath we had

arrested another accused, Ravi Kumar at 5

P.M in a ‘Galli’ near State Bank of Mysore,

Silver gate, Kulashekara, Mangalore…”

A perusal of the testimony of the Sub-Inspector/PW-19

indicates that there is not even a whisper as to what formed

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the basis of the appellant’s arrest. He was cross-examined

and what was gathered from his cross-examination is that the

appellant was arrested in absence of any independent

witnesses and without preparing any arrest memo. All these

facts combined together cast a doubt on the identity of the

appellant. Thus, it is not safe to convict the appellant solely

only on the basis of the testimony of PW1 and PW2, which

itself.

18. Another aspect which needs to be considered is that t he

prosecution case rests primarily on the evidence of PW-1 and

PW-2, who were the star witnesses. The admitted case of the

prosecution is that PW-1, who is the daughter of the deceased,

had gone out for some household work and there was no one

in the house when the crime was committed. First, PW-1 had

gone to a place named ‘Kulshekara’ and then to the Post

Office, and in the end to her uncle’s house at ‘Ullal’. The

distance between her residence at Kudupu and Ullal is about

20 km. She first walks some distance and then catches a bus

to reach Kulshekara and from there she went to the post

office, and after attending to her work, she takes a bus to go to

her uncle’s house at Ullal. Finally, she returned home in

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Kudupu and all of this was done by her within a period of 2½

hours. But this is not enough, as per the prosecution version,

she also reached her house at the very moment when the

deceased was being strangulated and then peeping through

the window pane, she witnessed the two accused pulling the

two ends of the rope. She called Accused no. 1-Ravikumar by

his name, which led to the two accused fleeing from the spot

and PW-2 who is the neighbour, chased them but in vain. This

whole story of the prosecution is unbelievable for more

reasons than one. Even if it is assumed for the sake of

argument that PW-1 had reached the house at the exact time

when the crime was being committed, the testimony to the

effect that her mother was strangulated to death by a rope-like

material, in the manner narrated by her, is not corroborated

by the post-mortem report where ligature marks on the neck

were not found to be encircling the neck in a round manner,

as it should have been in such a case of strangulation. There

were no ligature marks on the back of the neck. As discussed

earlier, the marks were only on the front side extending from

one angle of the mandible to the other. We therefore conclude

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that the prosecution has not been able to prove its case

beyond reasonable doubt.

19. In view of the above, we allow this appeal and acquit the

appellant in this case by giving him the benefit of doubt.

Consequently, the impugned judgment and order dated

06.06.2009 is set aside as far as it relates to the conviction of

the appellant, and the order of acquittal of the Trial Court is

upheld qua the appellant. The appellant, who is already on

bail, need not surrender. His bail bonds and sureties stand

discharged.

Pending application(s), if any, also stand(s) disposed of.

………………………………..J.

[SUDHANSHU DHULIA]

……...…………………………J.

[PRASANNA B. VARALE]

New Delhi

July 8, 2024