Naidu Seena @ Srinivas vs State of Karnataka

V. Suri Appa Rao, J.—This appeal is filed by the appellants against the impugned Judgment of conviction and sentence passed against them in Sessions Case No. 36/2007 dated 1/3.10.2007 on the file Addl. Sessions Judge, Shimoga, whereby the appellants were found guilty of the offence punishable u/s 307 r/w Sec, 34 of I.P.C. and were sentenced to undergo imprisonment for life.

The prosecution case in brief is as follows:

On 17th June 2006 at about 8.3C a.m. when the injured PW-1 - Anthony who was standing on road to catch taxi, the appellants attacked him with sword and sickles on the right hand of PW-1 at the point of wrist and caused severe injuries to his left hand. Due to which, he became disfunctional. The appellants further stabbed the injured with sword, knife all over the body which was witnessed by PWs 2 to 7 Out of them, PW-7 is working as Traffic Inspector in Rangappa Circle, after witnessing the incident, he has informed PW16 - Sub-Inspector of Police, Bhadravathi Rural Police about the incident. PW16 rushed to the scene of offence and shifted the injured to the Government Hospital. The statement of the injured was recorded by PW-15 - ASI, Old Town Police Station, Bhadravathi. Basing on which a case in Crime No. 143/2006 registered against the appellants for the offences punishable u/s 326 and 307 r/w Sec. 34 of I.P.C.

The Investigating Officer - PW-16 who has seized the material objects available at the scene of offence including the hand of the injured and after completion of the investigation filed the charge sheet against the appellants. The trial Court framed the charge u/s 307. r/w Sec. 34 of I.P.C, against the appellants. The plea of the appellants is one of total denial.

Thereupon, the prosecution examined PWs 1 to 17 and relied on the documents Ex.P1 to P38 and MOs 1 to 13.

Considering the evidence of the witnesses particulariy the evidence of PW-7 and the contents of Ex.P1 - Complaint, the Trial Court convicted the appellants for the offence punishable u/s 307 r/w Sec. 34 of LP.C, and sentenced them to undergo imprisonment for life. Aggrieved by the judgment of conviction and sentence passed against them, the appellants filed this appeal.

According to the prosecution, PWs 2 to 6 are eye witnesses to the incident and PW-7 who is working as Traffic Inspector rushed to the scene of offence immediately after coming to know about the incident and identified the culprits and on being informed by PW7, PW16 rashed to the scene of offence and took up the investigation and shifted the injured to the Hospital. Out of the prosecution witnesses examined PW- 1 to PW-6 did not support the prosecution case. PW-1 who received severe injuries has also did not support the case of the prosecution and he has stated in his evidence that he cannot identify the assailants who caused injuries.

PWs 2 to 6 who said to have been witnessed the incident have also turned hostile and they have not stated anything about the presence and participation of any of the accused in the crime. The trial Court relying on the evidence of PW-7 - the Traffic Inspector, recorded the order of conviction and passed the above order of sentence.

Learned Counsel for the appellants submitted that PW-7 who was on traffic duty was at a distance of 200 feet from the scene of offence and by the time he covered 100 feet, the assailents went away in white Maruthi Omni vehicle and by the time he reached the scene of offence he found the injured and some people gathered at the scene of offence, but PW-7 did not choose to lodge any complaint about the incident. He did not make any attempt to shift the injured to the Hospital. Therefore, the very presence of PW-7 at the time of the alleged assault cannot be believed. He further submitted that PW7 reached the scene of offence only after the incident. Learned Counsel for the appellants further submitted that PW-7 has identified the assailants in the Court for the first time, therefore, the evidence of PW-7 is not admissible in evidence unless it is corroborated by any other independent evidence. In support of his contention, the learned Counsel for the appellants placed reliance in in case of Mulla and Another Vs. State of Uttar Pradesh, wherein the Supreme Court held "the evidence relating to identification of accused made for first time in Court - should not form basis of conviction - Can only be used as corroborative evidence".

He further relied on another decision in the case of Vikramjit Singh @ Vicky Vs. State of Punjab, wherein it is held that "the prosecution witnesses turned hostile--May be act of dishonesty on their part -- But not sufficient to prove guilt of accused" Relying on the above decisions, the learned Counsel for the appellants submitted that PW-2 to PW-6 - witnesses did not support the prosecution case. Even PW-1 who suffered injuries also did not support the prosecution case and turned hostile to the prosecution case Therefore, the conviction and sentence recorded by the trial Court is liable to be set aside.

On the other hand, the learned Additional SPP submitted that immediately after the incident, the injured was shifted to Government Hospital. PW-15 --Assistant Sub-Inspector of Police recorded the statement of the injured wherein he has clearly stated the names of the appellants in the presence of the Medical Officer -- PW-9, Therefore, basing on the contents of Ex.P1 - complaint and evidence of PW-7 the trial Court has rightly passed the above order of conviction and sentence and there are no grounds to interfere with the judgment of conviction and sentence.

Admittedly, the injured PW-1 has stated the names of the appellants in Ex.P1 as culprits for causing injuries. But in the evidence he has totally denied about the participation of the accused in the crime. Moreover, PW-1 has stated that he has not stated the names of the appellants before the Police Officer.

PW-7 - the Traffic Inspector also stated in his evidence that when he was managing the traffic on the date of incident, he was at a distance of 100 feet at about 8.30 A.M. in the morning one person was attacked by accused and he sustained injuries on his hands and leg. In all there were four persons and after seeing that when he was proceeding towards the place of incident, the accused went away in Maruthi Omni Van. He has seen when the accused running away from a distance of about 100 feet, PW7 has further stated that he has not seen the facet of the accused clearly. But he can identify those persons. This witness identified the culprits in the Court for the first time.

Admittedly, no test identification parade was not conducted. His evidence further reveal that he immediately informed the Sub-Inspector of Police, Rural Police, Bhadravathi about the incident and he was present till the arrival of the Sub-Inspector.

PW-16 -- Inspector of Police, Old Town Police Station, Bhadravathi has not stated in his evidence that he was informed by PW-7 over phone and he has also not stated the presence of PW-7 by the time he reached the scene of offence. Therefore, the evidence of PW-7 that he informed PW-16 - Inspector of Police, Rural Police Station, and he was present till the arrival of PW-16 at the scene of offence cannot be believed. When PW-7 has not clearly seen the faces of the assailants the Investigating Officer ought to have taken steps for conducting test identification parade immediately after the arrest of the accused tor identification of the culprits before lodging charge sheet Except the evidence of PW-7 which is not worthy of acceptance, there is no other independent evidence on record to connect the appellants with the crime.

Therefore we are of the considered view that the order of conviction and sentence passed against the appellants for the offence u/s 307 r/w Sec. 34 of I.P.C. cannot be sustained in view of the above facts and circumstances.

The appeal is therefore allowed. The order of conviction and sentence passed against the appellants dated lst/3rd October 2007 in S.C. No. 35/2007 is set aside. They shall be set at liberty if they are not required in any other case.