Judgment:
1 R IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE4h DAY OF MARCH, 2015 PRESENT THE HON’BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR AND THE HON’BLE MR. JUSTICE PRADEEP D. WAINGANKAR Criminal Appeal No.1302/2011 c/w Criminal Appeal No.963/2011 In Criminal Appeal No.1302/2011: BETWEEN: State by Nanjangud Town Police (By Sri B.Visweswaraiah, HCGP.,) AND : ..Appellant S.B. Mahadevakumar S/o D.M. Basavaraju Aged about 31 years Shagya Village, Kollegal Taluk, now residing at 2 Devirammanahalli Layout Nanjangud Town (By Sri Chandrashekar R.P., Adv., for Sri C.H.Hanumantharaya., Adv.,) ..Respondent This Criminal Appeal is filed under Section 378(1) & (3) of Cr.P.C praying to grant leave to file an appeal against the judgment and order of acquittal dated 26.08.2011 passed by the Fast Track Court-I, Mysore in S.C.No.120/2010 acquitting the respondent/accused for the offences punishable under Sections 363, 302 and Section 201 of Indian Penal Code and to set aside the said judgment and order of acquittal. In Criminal Appeal No.963/2011: BETWEEN: C.P. Gangadhara Swamy S/o C.V.Paravathappa Aged about 49 years Occ: School Teacher R/a No.77/30 Mahadeveshwara Layout Hullahally Road, Nanjangud Mysore District (By Sri H.S.Chandramouli, Adv., and Sri K.A. Chandrashekara., Adv.,) ..Appellant AND :
3. 1. S.B. Mahadevakumar S/o D.M. Basavaraju Aged about 31 years R/o Shagya Village Kollegala Taluk Devirammanahalli Extension Nanjangud Town 2. The State of Karnataka By the Police of Nanjangud Town Police Station Nanjangud Mysore District ..Respondents (By Sri Chandrashekar R.P., Adv., for Sri C.H.Hanumantharaya & Associates, Advs, for R-1.,) Sri B. Visweswaraiah., HCGP., for R-2.,) This Criminal Appeal is filed under Section 372 Cr.P.C praying to set aside the order dated 26.08.2011 passed by Fast Track Court-I, Mysore in S.C.No.120/2010 and convict the respondent No.1/accused for the offence punishable under Sections 363, 302 and 201 of Indian Penal Code. These Criminal Appeals coming up for final hearing, this day, MOHAN M. SHANTANAGOUDAR .J., delivered the following. 4
JUDGMENT
Questioning the Judgment & Order of acquittal dated 26.8.2011 passed by the Fast Track Court-I, Mysore in S.C. No.120/2010, the State has filed Criminal Appeal No.1302/2011 and the original complainant (PW.2) has filed Criminal Appeal No.963/201. Since both the appeals are filed questioning the Judgment & Order of acquittal passed by the trial Court in S.C. No.120/2010, they are heard and decided together. The accused is charged, tried and acquitted of the offences punishable under Sections 363, 302 r/w 201 of IPC.
2. Case of the prosecution in brief is that the deceased C.G. Sharan, aged about 9 years (during the relevant point of time), is the son of the complainant (PW.2); he was studying in 4th Standard in Citizen School, 5 Nanjangud; on 26.8.2008 deceased went to school as usual; however, he did not return back to the residence after school hours i.e., even after 3.30 p.m.; the complainant and his relative searched for the deceased in the school; complainant could not get any clue and hence he lodged a missing complaint as per Ex.P2 at 4 p.m. on 27.8.2008; said complaint came to be registered in Crime No.128/2008 in Nanjanagud Town Police Station; subsequently, supplementary statement of the complainant is recorded as per Ex.P3 on 28.8.2008 at 11 a.m.; in the said statement, the complainant has stated before the Police that the schoolmates of his son viz., Prashanthkumar (PW.9) and Rohith (PW.10) had seen his son - Sharan leaving the school at 3.30 p.m. on 26.8.2008 by sitting as a pillion rider on black coloured ‘Apachi motorcycle’. Based on such statement of the complainant dated 28.8.2008, the offence under Section 363 of IPC is alleged against unknown person and investigation also 6 started. Ultimately, Final Investigation Report came to be filed on 15.4.2010 for the offences under Sections 363, 302 and 201 of IPC by the Sub-Inspector of Police – PW.33.
3. In order to prove its case, the prosecution in all examined 35 witnesses and got marked 50 Exhibits and six material objects. On behalf of the defence, 15 Exhibits were got marked. The trial Court, on evaluation of the material on record, acquitted the accused giving the benefit of doubt in his favour.
4. Sri Chandramouli, learned advocate appearing on behalf of the original complainant (PW.2) taking us through the entire material on record and the Judgment of the Court below submits that the prosecution has proved its case beyond reasonable doubt; all the circumstances relied upon by the prosecution are amply proved; since the chain of circumstances is fully proved and as the same leads to 7 the only hypothesis of guilt against the accused, the trial Court is not justified in acquitting the accused. He further submits that the accused cleverly did not leave any clue for the Investigating Officer to find out the real culprit at the first instance; however after thorough investigation, the Police were able to gather clinching material against the accused; the accused is identified by PWs.9, 10, 15 and 16 as the person who took the victim alongwith him just prior to the incident in question; accused is in dire need of money and he knew very well that the parents of the deceased were having huge sums of money in the form of sale proceeds of the land belonging to Siddamalla Swamiji; the accused in order to demand ransom from PWs.2 and 8, kidnapped the deceased from the lawful custody of his parents; the proved circumstances relating to the extra judicial confession, last seen together etc., are not properly considered by the Court below. On these, among other 8 grounds, he prays for reversal of the Judgment of the Court below. Learned Government Advocate also argued supporting the contentions of Sri Chandramouli, learned advocate appearing on behalf of the original complainant. Per contra, Sri Chandrashekhar R.P., learned advocate for the acquitted accused argued in support of the judgment of the Court below contending that the trial Court is justified in acquitting the accused inasmuch as none of the circumstances are proved beyond reasonable doubt by the prosecution; this being an appeal against the order of acquittal and as the judgment of the Court below is in accordance with law, he prays for dismissal of the appeal.
5. PW.1 is the witness for scene of offence panchanama – Ex.P1. The said panchanama relates to the place wherein the alleged offence of kidnapping took place. 9 PW.2 is the father of the deceased. He lodged the missing complaint as per Ex.P2 at 4.00 p.m. on 27.8.2008, based on which Crime No.128/2008 came to be registered. Based on subsequent statement as per Ex.P3 of PW.2, the case is registered against unknown person for the offence under Section 363 of IPC. PW.2 has also deposed about the missing of the child since 26.8.2008, the acquaintance of the accused with the family of the deceased, the motive for commission of the offence etc., PW.3 is the teacher working in the Citizen school wherein the deceased was studying. She has deposed that the deceased wrote exam on 26.8.2008 and then left the school at about 3.30 p.m. She has also deposed that PWs.9 and 10 told her in the school that the deceased had gone with one uncle on Black coloured ‘Apachi bike’. PW.4 is the colleague of PW.2. He searched for the deceased alongwith PW.2 and others. He is the witness for 10 panchanamas – Ex.P4 & Ex.P5 under which the mobile phone of the accused, key of the motorcycle and motorcycle are seized. He has also deposed about searching of the child alongwith the accused. PW.4 went to the school alongwith the accused and talked with the teacher – PW.3 in the school wherein he was informed that one uncle took the victim child in black coloured ‘Apachi motorcycle’. PW.5 is the witness for panchanamas – Ex.Ps.8,9, 10 and 11. They are all panchanamas relating to the spot. Ex.P8 relates to the spot near Sushma Bakery; Ex.P9 relates to the spot near Shamiyana Shop; Ex.P10 and Ex.P11 relate to the spot near the house of Mahadevanaik and Rampur Naala respectively.. PW.6 is another witness for panchanamas – Ex.Ps.6,7 and 12. Ex.P6 is relating to seizure of Exam Pad – MO.1; Ex.P7 is relating to seizure of wire bag (MO.2) and tiffin box 11 (MO.3) ; Ex.P12 relates to the spot wherein PWs.19 and 20 found MOs.1 to 3 near Rampur nala. PW.7 is the neighbour of PW.2. He has deposed about acquaintance of the accused with the deceased and also about missing of child. PW.8 is mother of the deceased i.e., wife of PW.2. She has deposed about acquaintance of the accused with the family of the deceased; that the accused used to avail hand loan from her and her husband. She has also deposed about sale of land by Siddamalla Swamiji on 7.1.2007 and keeping the sale proceeds in their house. She had identified Mos.1 to 3. PW.9 and 10 are the schoolmates of the deceased. They have deposed about the last seen circumstance. According to them, they saw the accused taking away deceased on black coloured ‘Apachi motorcycle’ just prior to 12 the incident in question. They have also testified about their participation in the Test Identification parade. The Test Identification report is at Ex.P13. PW.11 has deposed about the topography of the citizen school. PW.12 is the Tuition Teacher of the deceased. She has deposed that from 26.8.2008, the deceased did not attend the tuitions PW.13 is the vendor of condiments near Citizen School. The Police made enquires with him to find out as to whether he has seen the deceased prior to 28.8.2008. PW.14 is owner of the black coloured pulsar bike. Since he is owner of the black coloured pulsar bike, he was also enquired into by the Police during the course of investigation. However having found that PW.14 is not 13 the person who is involved, the documents of the vehicle were returned to him. PW.15 is the owner of Sushma Bakery. He has deposed that he has seen the accused with the deceased in front of his bakery; the accused purchased cool drink and kurkure for the child and they proceeded towards Uttarahalli road on motorcycle. He identified MO.6 – motorcycle. PW.16 has also deposed about the last seen circumstance. According to him, the accused and the deceased were standing under a tree near his house; that he offered shelter to the deceased and the accused under canopy; at that point of time, he saw the accused. He also participated in the Test Identification parade. PW.17 deposed about the extra judicial confession said to have been made by the accused. 14 PW.18 is the son of PW.19. He has deposed that an exam pad was provided to him by his father and in the said exam pad it was written as ‘C.G. Sharan and C.G. Meghana’. He identified the said exam pad as M.O No.1. PW.19, who is the father of PW.18 has deposed that while he was going alongwith PW.20 near Rampur nala, they found MOs.1 to 3. PW.19 took MO.1 – exam pad, while PW.20 took Mo.2 – wire bag and MO.3 - tiffin box. He also identified Mo.1. The evidence of PW.20 is similar to the evidence of PW.19. PW.21 is the employer of PWs.19 and 20. He has deposed that PWs.19 and 20 informed him that they found Mos.1 to 3 near naala and showed them to him. On his instructions, PWs.19 and 20 kept MOs.1 to 3 in their possession. 15 PW.22 is the Engineer who drew the sketch of the scene of offence relating to naala as per Ex.P14. He has also issued the revenue survey map as per Ex.P15. PW.23 is the purchaser of the land sold by Siddamalla Swamiji for Rs.17,70,000/-. He has deposed that Siddamalla Swamiji has retained some amount and gave the remaining amount to PW.2 to deposit the same in the account of Swamiji. PW.24 is the Police Constable and PW.25 is the Head Constable. PWs.24 and 25 have participated during the course of investigation at different levels. PW.26 is the Inspector. He also conducted part of the investigation. PW.27 is the witness who has lent money to the accused. He has deposed that the accused had pledged motorcycle – MO.6 with him and obtained money. 16 PW.28 is the Head Master of Somadevanahalli High School. He has also deposed about the sale of land by Swamiji. PWs.29 and 30 are Police Constables. They have also participated in the course of investigation. PW.31 is the Taluka Executive Magistrate who conducted Test Identification parade. His report dated 26.4.2010 is at Ex.P13. According to him, PWs.9 and 15 have identified the accused, whereas PWs.10 and 16 have failed to identify the accused. PW.32 is the Woman Police Sub-Inspector. She prepared first information as per Ex.P28 based on the missing complaint Ex.P2. PW.33 is the Investigating Officer who completed the investigation and laid the charge sheet. 17 PW.34 is another Inspector who also participated during the course of investigation to certain extent. PW.35 is the Police Sub-Inspector who inserted the offence of ‘kidnap’ based on the subsequent statement of PW.2 as per Ex.P3. He also investigated the crime to certain extent.
6. There are no eye witnesses to the incident in question. The case rests fully on the circumstantial evidence. The name of the victim is Sharan. He is the son of PWs.2 and 8. The victim was aged about nine years during the relevant time and studying in 4th Standard. It is not in dispute that the accused was acquainted with the family of the deceased. Accused is a driver attached to the car of Siddamalla Swamiji; said Swamiji was running an educational institution in which PWs.2 and 4 were working as teachers; the accused used to frequently visit the house of the deceased whenever said Swamiji visits the house of 18 the deceased for the purpose of padhapooja. Thus the acquaintance of the deceased with the accused is not in dispute.
7. It is the case of the prosecution that the child - Sharan attended the school on 26.8.2008, but did not return back to home after the school hours. According to PWs.9 and 10 (the schoolmates of the victim), the deceased was last seen with one person, who took away the victim on a black ‘Apachi motorcycle’. According to the prosecution, PWs.15 and 16 also saw the victim with the accused on the evening of 26.8.2008. Missing complaint came to be lodged by PW.2 as per Ex.P2 at 4 p.m. on 27.8.2008. All these facts are not in dispute.
8. Ex.P2 – missing complaint and so also the subsequent statement – Ex.P3 of PW.2 do not make any allegation against any person much less against the 19 respondent herein. As per Ex.P3, one person came on black coloured ‘Apachi motorcycle’ near backside of the school of the victim, talked with the victim and took the victim on the said motorcycle as a pillion rider. Thus in the subsequent statement dated 28.8.2008 recorded as per Ex.P3 at 11 a.m, the complainant alleges that the victim was kidnapped by an unknown person by taking him on a black coloured ‘Apachi motorcycle’.
9. The prosecution has relied upon the following circumstances: A) Motive for the commission of the offence. B) The victim was last seen with the accused on the evening of 26.08.2008. C) Test Identification Parade conducted by the Taluka Executive Magistrate (PW.31). D) Extra-judicial confession by the accused before PW.17. 20 E) The seizure of MOs.1 to 3 i.e., Writing Pad, Wire Bag and Tiffin Carrier respectively.
10. Re. (A) Motive for the commission of the offence: According the case of the prosecution, the accused was in need of money; he used to borrow money frequently from friends; he had left the job of a driver about 6 to 7 months prior to the incident in question; he sold his motorbike to PW.27 and had raised money. Since the accused knew very well that the parents of the deceased viz., PWs.2 and 8 were having huge sums of money (worth lakhs) belonging to Siddamalla Swamiji, kidnapped the deceased for demanding ransom from them. In order to prove the said circumstances PWs.2, 8 and 27 are examined. PWs.2 and 8 are father and mother of the deceased respectively. There was no allegation by PWs.2 and 8 against the accused till the police told them that it was the 21 accused before the Court who had kidnapped the victim and committed murder. Thus, no allegations were made by PWs.2 and 8 either in the complaint or in the subsequent statements before the police during the course of investigation alleging that the accused was in dire need of money and that in order to get money from Pws.2 and 8 he committed murder of the deceased. Virtually, till the arrest of the accused, none of the witnesses have come out with the definite stand relating to motive. However, only after the arrest of the accused, PWs.2 and 8 have deposed before the Court that the accused was in need of money and in order to get money from them, he kidnapped the victim. PW.27 who is stated to be purchaser of the motorcycle from the accused has deposed that he has purchased the motorcycle after the incident in question. It is relevant to note that there is absolutely no record to show as to whom the motorcycle belongs to. Neither the registration 22 certification nor any of the relevant documents relating to the bike which is allegedly sold by the accused to PW.27 are produced before the Court. So also there is nothing on record to show that PW.27 has purchased the motorcycle from the accused in accordance with law. Merely on the basis of bald allegations, the prosecution wants the Court to believe circumstance of motive as putforth by it. On evaluation of material on record, we find that the Trial Court has rightly held that the circumstance of motive is not proved.
11. Re. (B) The victim was last seen with the accused on the evening of 26.08.2008: According to the case of the prosecution, the accused and the victim were seen last at about 3.30 p.m. on 26.08.2008 behind the school building. PWs.9 and 10 are the schoolmates of the deceased. PWs.15 and 16 also have deposed that they had 23 seen the accused with the victim in the evening of 26.08.2008. The statement of PW.15 was recorded on 08.02.2010 whereas statement of PW.16 was recorded on 09.03.2010. The offence has taken place on 26.08.2008 which means that the statements of PWs.15 and 16 were recorded, in order to prove the last seen theory, only after about 1 ½ years from the date of incident in question. Absolutely no reasons are forthcoming as to why the statements of these two witnesses are recorded by the police during the course of investigation only after about 1 ½ years from the date of incident. Admittedly, three Investigation Officers were employed to find out the real culprits. They have investigated into the crime thoroughly. The photographs of the child were published by the police in newspapers. Such fact is admitted by PW.15. Despite the same neither PW.15 nor PW.16 intimated about seeing of the child to the police. 24 They have opened their mouth only after the police came to their place along with accused. Till such time, the statements of these witnesses are not recorded. As absolutely no valid reasons are forthcoming to explain such a long delay of 1 ½ years in recording the statements of these witnesses, the Trial Court has rightly disbelieved the version of these witnesses. Moreover, these witnesses have admitted that not only they have not stated before the police about the seeing of the deceased with the accused but have also not stated before any other person including their family members. We also find that the Trial Court is justified in disbelieving the version of PWs.9 and 10 relating to last seen circumstance. According to PWs.9 and 10, they saw the victim behind the school on 3.30 p.m. on 26.08.2008. They tried to talk with the victim, however the victim avoided such talks with PW.9 and PW.10 by stating that the 25 lady teacher is coming near them. At that point of time, a person came on Black Apachi motorcycle and talked with the deceased; after talking to certain extent, the deceased also went on the said motorcycle as a pillion rider. According to them, the accused is the person who took the victim on Black Apachi motorcycle. The statements of PWs.9 and 10 were recorded on 28.08.2008 itself i.e., within one day after the registration of the complaint. In the said statements, PWs.9 and 10 have stated that they saw the victim going on a Black Apachi motorcycle after talking with the person. Both PWs.9 and 10 were taken to identify the accused at the time of conducting Test Identification Parade. PW.10 failed to identify the accused. However, PW.9 identified the accused. In the cross- examination, PW.9 has admitted that for the first time he saw the accused on 26.08.2008 and not earlier thereto. He has clearly admitted that only one side of the face of the accused was seen by him. He had not stated before the 26 police about the facial characteristics of the accused. The evidence of PWs.9 and 10 will have to be tested keeping in mind the evidence of PW.4 and other attending circumstances including the evidence of Investigation Officer. PW.4 is admittedly the colleague of PW.2. He knew the accused also. PW.4 in examination-in-chief itself has deposed that the accused was knowing very well the family of the deceased including the deceased; PW.4 came to know about the missing of the victim on 28.08.2008. On that day, he called the accused over phone; the accused came to the house of PW.4 and inturn both PW.4 and the accused went to the house of PW.2 (father of the deceased). They came to know that the PW.2 had gone to Citizen School (School of deceased). Accordingly, PW.4 and accused went to Citizen School and at that point of time, PW.3-teacher of Citizen School enquired with the students about the missing of the victim-C.G. Sharan. During such 27 enquiry, PWs.9 and 10 told that the victim went along with ‘one uncle’ on Apachi motorcycle. The material on record would clearly reveal that both PW.4 and accused were very much present along with PW.2 in the school when PW.3 was enquiring with the students. They were also present when PWs.9 and 10 told PW.3 that the victim went along with ‘one uncle’ on Apachi motorcycle. If really the accused had taken the victim on Apachi motorcycle on that day, PWs.9 and 10 would not have failed to identify the accused then and there only as the person who took the victim on that day. Thus, at the inception itself i.e., within one or two days of the incident itself PWs.9 and 10 did not identify the accused in their school as the real culprit. At that time not only PWs.9 & 10 but also PW.2, PW.4, teacher of the school (PW.3) and accused were present. PW.2 the father of the victim has categorically admitted in his cross-examination that house of the accused 28 is about 1 km from his house; he has seen the accused number of times after the registration of the crime. Despite the same, no suspicion arose in the mind of PW.2 about the complexity of the accused. He further admits that only after the police told him that the accused kidnapped and committed murder of the victim, he generated suspicion against the accused. P.S.I.-PW.35 has admitted that the accused was interrogated number of times by the police. He further admits that the accused was called to police station on 12.09.2008 and was interrogated however no clue was available. On that day itself the Investigation Officer could have shown the accused to PWs.9 and 10 once again for the purpose of identification. Another Investigation Officer- PW.33 who laid charge-sheet also admits that the accused was asked to come to police station on 10.05.2009 and he was interrogated. Curiously the statement of the accused was stated to have been recorded on 12.09.2008 and on 29 10.05.2009 by the Police under Section 161 of Cr.P.C. It is relevant to note here itself that all the persons in Nanjangud Taluk and adjoining Taluk who are having Black Apachi motorcycle were interrogated including one Shivakumar and Syed Noor Ahamed (PW.14). After satisfying, the police returned back the records of the motorcycle of such persons. It is also admitted by the Investigation Officer that Shivakumar and Syed Noor Ahamed were shown to PWs.9 and 10 in the Police Station to verify as to whether they were the persons who took the victim on the motorcycle. However, PWs.9 and 10 were of the opinion that the said Shivakumar and Syed Noor Ahamed were not the persons who took the victim on the motorcycle during the relevant day. In this view of the matter, the two inferences can be drawn. First inference would be, the police must have shown the accused also to PWs.9 and 10 but no clue was available against him. Second inference would be that the police did not, for the 30 best reasons known to them show the accused to PWs.9 and 10 for the purpose of verifying the involvement of the accused. Therefore, it is clear that though the accused was very much available within the jurisdiction of the police station and though the accused was brought before the police station number of times and though his statements were recorded on two occasions as aforementioned, the police were not able to get any clue against the accused despite PWs.9, 10, 15 and 16 were very much available to help the prosecution. The investigation proceeded for about 1 ½ years. Ultimately, the police laid charge-sheet against the accused only on the basis of suspicion. In view of the aforementioned facts, we are of the opinion that the Trial Court is justified in concluding that the last seen circumstance relied upon by the prosecution is also not proved beyond reasonable doubt. 31 12. Re. (C) Test Identification Parade conducted by the Taluka Executive Magistrate (PW.31): PW.31 has deposed that four persons were taken to prison premises for the purpose of Test Identification Parade i.e., PWs.9, 10, 16 and 17. Among them, PWs.10 and 17 did not identify the accused. PWs.9 and 16 identified the accused. As aforementioned there was ample opportunity to PW.9 to identify the accused on 28.08.2008 itself when the accused and PW.4 had come to the school and talked with PW.3 the teacher, which point of time PWs.9 and 10 had told that one uncle had taken the victim. At that point of time, neither PW.9 nor PW.10 identified the accused as person who took the victim on the motorcycle. In addition to the same, it is relevant to note that PW.16 another witness who is said to have identified the accused admits in his cross-examination that the accused was brought by the police before him about 7-8 months prior to the Test 32 Identification Parade. This clearly means that the accused was shown to PW.16 by the police about 7-8 months prior to the Test Identification Parade. He further admits that he does not know as to why he signed Ex.P13 Test Identification Parade report. Be that as it may, it is clear from the evidence of PW.16 that he had seen the accused in his house inasmuch as the police had brought the accused 7-8 months prior to the Test Identification Parade, to the house of PW.16. Added to it, there is delay of about 2 ½ months to conduct Test Identification Parade. The accused was arrested on 07.02.2010, whereas Test Identification Parade was conducted on 23.04.2010. It is well settled preposition of law that the Test Identification parade in order to become acceptable needs to be conducted as early as possible after the arrest of the offenders or culprits. Even otherwise, the acceptable 33 reasons should be assigned by the Investigating Officer as to why Test Identification parade could not be conducted at an early point of time. It is not for the defence to prove that the parade held was suffering from the legal infirmities because, admittedly, the onus of proof in criminal case never shifts as the accused is presumed to be innocent till proved otherwise beyond all reasonable doubts. The Test Identification is considered as a safe rule of prudence for corroboration. Though the holding of the Identification parades may not be substantive evidence, yet such parades are used for corroboration purposes in order to believe or not the involvement of the persons 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 strictly in accordance with the settled position of law and expeditiously. The delay, if any has to be explained satisfactorily by the prosecution. 34 In the matter on hand, the prosecution has not come out with any explanation, much less plausible explanation for the delay which is caused in conducting Test Identification parade after the arrest of the accused. More over, we find that the Taluka Executive Magistrate has not conducted the Test Identification parade as far as possible as per the guidelines found in the Karnataka Police Manual. Chapter-33 of the Karnataka Police Manual prescribes certain salient points to be borne in mind by the Police Officers arranging Identification parades. We are conscious of the fact that the guidelines prescribed in the Karnataka Police Manual cannot take the place of statute. However, the rule of prudence requires that the Test Identification parade shall be conducted as per the well established norms in order to ward off any suspicion in the mind of the Court relating to the procedure adopted while conducting the Test Identification parade. On verification of the material on record, we are of the clear opinion that the 35 Taluka Executive Magistrate has not conducted the Test Identification parade as per the well established norms. The Test Identification parade seems to have been conducted casually. There is nothing on record to show that the persons who were standing with the accused during the Identification parade had got almost the same salient features such as height, weight, breadth, colour, complexion, etc. Even the dresses worn by such persons who are standing with the accused in Test Identification parade ought to have been almost similar. The persons in the parade shall be shuffled after identification by each of the witnesses. In the matter on hand, no material is found evidencing such shuffling of the persons. Thus, the Test Identification parade conducted by the Taluka Executive Magistrate does not inspire the confidence of the Court. In the matter on hand, the inordinate delay of 2 ½ months in conducting the Test Identification parade has remained unexplained. For the aforementioned reasons, in 36 our considered opinion the Trial Court is justified in concluding that the circumstance relating to the Test Identification Parade cannot be relied upon.
13. Re. (D) Extra-judicial confession by the accused before PW.17: According to the prosecution, the accused made extra judicial confession before PW.17 on 29.01.2009. As aforementioned, the incident has taken place on 26.08.2008. The accused was arrested on 07.02.2010. On the very date of the arrest of the accused, the statement of PW.17 is recorded under Section 161 of Cr.P.C. According to PW.17, the accused confessed before him regarding the incident on 29.01.2009. If really the accused had confessed before PW.17 about the incident, there is no reason as to why PW.17 kept quiet without informing anybody muchless to the police. PW.17 has admitted in the cross-examination that he had not stated about so called confession made by the accused before the 37 police or before other parties. He had not even disclosed before his family members. These facts including belated recording of the statement of PW.17 renders version of PW.17 unreliable.
14. Re. (E) The seizure of MOs.1 to 3 i.e., Writing Pad, Wire Bag and Tiffin Carrier respectively: Though the prosecution has relied upon the circumstance relating to seizure of MOs.1 to 3 i.e, Writing Paid, Wire Bag and Tiffin Carrier of the deceased near Nala, such seizure panchanama would not connect the accused with the crime. In the matter on hand, the dead body is not found. There is no definite clue as to how the death has taken place. It is also not clear from the records as to whether the death has occurred or not. It is also not clear as to how the death has occurred.
15. Be that as it may, having regard to the totality of facts and circumstances and aforementioned discussion of 38 us lead to the only conclusion that the judgment of the Trial Court acquitting the accused is just and proper. Hence, no interference is called for. The appeals fail and the same stand dismissed. Sd/- JUDGE Sd/- JUDGE Pages 1 to 18 .. gss/- 19 to end … pmr/-