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SUPREME COURT OF INDIA
SWATANTER KUMAR & FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.
SUBHASH KRISHNAN - Appellant
VERSUS
STATE OF GOA - Respondent
Criminal Appeal No. 1089 of 2010 with Criminal Appeal No. 1224 of 2012 (Arising Out of SLP (Crl) 3966/2010)
Decided on : 17-08-2012.
(2009) 17 SCC 724; AIR 1964 SC 221; AIR 1955 SC 196 – Relied upon
(b) Code of Criminal Procedure, 1973 – Section 157 – Investigation initiated on basis of complaint – Investigation conducted in accordance with law – Other eye witnesses examined and cross-examined – Non cross-examination of complainant – Cannot invalidate investigation. (Para 16)
AIR 1955 SC 196; AIR 1964 SC 221; (2009) 17 SCC 724 – Relied upon
(c) Indian Evidence Act, 1872 – Section 9 – Test Identification Parade – Identification of the appellant proved to the satisfaction of the Court – TIP held valid. (Para 18)
(2004) 2 SCC 694; (2002) 7 SCC 295; AIR 2001 SC 1188 – Relied upon
(1982) 1 SCC 700; (1998) 1 SCC 169; (1987) 2 SCC 232; (1975) 4 SCC 511; (2007) 13 SCC 569; (2008) 5 SCC 368 – Distinguished impliedly
(d) Indian Evidence Act, 1872 – Section 3 – Injuries of accused A-4 – No eye witness speaking about although medical evidence recording the same – Caused by a sharp weapon – Trial court opining about appellant causing the injury while wildly using the weapon in which A-4 fully participated – Not wholly improbable. (Para 22)
(2012) 4 SCC 352; (2010) 6 SCC 1; (2004) 13 SCC 150; (2008) 16 SCC 166; 1995 Suppl.(3) SCC 626 – Referred
(1982) 2 SCC 72; (1979) 3 SCC 319 – Distinguished impliedly
(e) Code of Criminal Procedure, 1973 – Section 313 – Injuries of accused A-4 – Accused simply stating he was assaulted by 4-5 persons – No evidence produced – No relevance to conviction of appellant. (Para 23)
(2003) 6 SCC 380; (2006) 11 SCC 239 – Distinguished
(f) Indian Penal Code, 1860 – Section 362 and 364 r/w section 34 – Deceased assaulted and made unconscious – Thereafter shifted to another place and hanged – Every ingredient of section 362 and 364 r/w 34 made out – High Court reversing judgment of trial court acquitting the accused – No infirmity. (Para 25)
(g) Criminal Trial – Appreciation of evidence – Eye witnesses seeing the occurrence from a distance of 70 metres – In day light at 4.30 PM – No difficulty in identifying the accused. (Para 26)
Facts of the case:
six accused persons were charge-sheeted for the offences under Section 120B read with Section 302, IPC, Sections 342, 364, 504 read with Section 34, IPC for the alleged abduction, wrongful confinement and killing the deceased Shanu Komarpant on 10.10.2003. Accused No.5 and A-6 were acquitted by the trial Court giving benefit of doubt while A-1 to A-4 were acquitted of charges under Section 342, 504 and 364 read with Section 34 IPC. The accused Nos.1 to 4 were, however, convicted for offences under Sections 120B, 302 read with Section 34, IPC.
High Court dismissed the appeal filed by the accused and the State appeal being Criminal Appeal No.6/2008 was partly allowed, where under, the accused Nos.1 to 4 were also convicted for offences under Sections 342 and 364 read with Section 34, IPC.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result: Appeals dismissed.
JUDGMENT
Fakkir Mohamed Ibrahim Kalifulla, J.-Leave granted in SLP (Crl) 3966 of 2010.
2. These appeals have been preferred by the second accused. Though, in all eight persons were accused of the alleged offences, records reveal that accused Nos. 7 and 8 were absconding even at the time of filing of the charge sheet and hence as many as six accused persons were charge-sheeted for the offences under Section 120B read with Section 302, IPC, Sections 342, 364, 504 read with Section 34, IPC for the alleged abduction, wrongful confinement and killing the deceased Shanu Komarpant on 10.10.2003. Accused No.5 and A-6 were acquitted by the trial Court giving benefit of doubt while A-1 to A-4 were acquitted of charges under Section 342, 504 and 364 read with Section 34 IPC. The accused Nos.1 to 4 were, however, convicted for offences under Sections 120B, 302 read with Section 34, IPC and were imposed with the sentence of life imprisonment apart from a fine of Rs.5,000/-each, in default to undergo further three months rigorous imprisonment. Accused Nos.1 to 4 preferred individual appeals being Criminal Appeal Nos.7/2007, 12/2007 and 13/2007. The appeal preferred by the second accused was Criminal Appeal No.13/2007. The State preferred Appeal No.6 of 2008 against the acquittal of charges under Sections 342, 504 and 364 read with Section 34 IPC and the total acquittal of A-5 and A-6. All appeals were tried together and by a common judgment impugned in these appeals, the High Court dismissed the appeal filed by the accused and the State appeal being Criminal Appeal No.6/2008 was partly allowed, where under, the accused Nos.1 to 4 were also convicted for offences under Sections 342 and 364 read with Section 34, IPC. The High Court held that the conviction of the said accused would, therefore, be for all the offences including offences under Sections 342, 364 read with Section 34, IPC. At the outset, it has to be mentioned that as against the common judgment of the High Court, appeal was stated to have been preferred by A-3. However, it was dismissed at the stage of preliminary hearing. The review preferred by A-3 in Review Petition (Crl) No.115 of 2011 was also dismissed on 09.03.2011.
3. According to the case of the prosecution, on 10.10.2003, the accused 1 to 6 went to the garage of Shanu Komarpant (hereinafter called ‘the deceased’) in a white colour Maruti van and enquired about his whereabouts. The friend of the deceased by name Alex Viegas who was present at that time in the auto garage noticed the belligerent behaviour of the accused persons, and informed about the same to his cousin, the complainant-Avelino Viegas (PW-2) and proceeded to the house of the deceased, that there they met the deceased and informed him about the anxious enquiries made by the accused about his whereabouts. It is stated that the deceased himself wanted to straightaway go and meet the first accused with a view to arrive at some settlement relating to an issue relating to a love affair and in that view the deceased along with PW-2 and Alex Viegas went to the place of occurrence in two motor cycles one driven by PW-2 along with the deceased and the other hired by Alex Viegas and that after reaching the place of occurrence when the deceased asked A-1 as to for what purpose he was searching for him, the accused persons stated to have assaulted the deceased with knife, sword and bamboo stick (danda) and gave kick blows by hand in the middle of the road viewed by persons standing nearby. It is further stated that PW-2 was held by A-1 from extending any help to the deceased and save him from the assault by the other accused while Alex Viegas stated to have been directed by PW-2 to fetch other people for saving the deceased from the severe onslaught meted out to him. The said assault stated to have taken place at 4.30 p.m. on 10.10.2003 on the road at Galjibagh in the vicinity of Saint Anthony High School within the limits of Canacona police station of South Goa Di
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