LexSIMON AND ORS. versus STATE OF KARNATAKA
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A B c SIMON AND ORS. v. STATE OF KARNATAKA JANUARY 29, 2004 [Y.K. SABHARWAL AND B.N. AGARWAL, JJ.] Penal Code, 1860; Sections 143, 148, 307, 302, 332, 333, 324, 120(8) & 149-Terrorist and Disruptive Activities (Prevention) Act, 1987; Sections 3, 4 & 5-Police convoy attacked by landmine blast and subsequent attack by firearms resulting in the death of 22 people and injuries to several others- Accused identified in Court by witnesses who survived the attack-Designated Court awarding the accused life imprisonment-Main plea of accused that test identification parade not conducted-Held, on facts and evidence, test identification parade is not required-Designated Court has rightly convicted D the accused-However on notice to the accused, life imprisonment enhanced lo death penalty owing lo seriousness of the crime-Evidence Act, 1872; Section 9. Pursuant to an information received about the place of hiding of a notorious criminal gang, a Police party with forester watchers and E informants went in two buses to nab them. One of the buses got exploded due to a landmine blast resulting in the death of 22 persons and injuries to several others. After the explosion, there were exchange of fire also. The police registered criminal cases against 50 persons which included the four appellants. Trial Court convicted the appellants for offences under F Sections :J, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987; under Sections 143, 148, 307, 302, 332, 333, 324, 120(8) & 149 IPC; under Section 3 of the Explosive Substances Act and under Section 25 of the Indian Arms Act, 1959. The appellants were sentenced to undergo rigorous imprisonment for life besides fine and further imprisonment in default of payment of fine. Lesser punishment has been inflicted for G offences under the Indian Arms Act and Explosive Substances Act. In appeal to this Court, the appellants contended that the prosecution has not been able to estabHsh beyond reasonable doubt that the appellants were present at the place of occurrence and involved in the crime; that PW 89 has wrongly identified all the appellants except one; that the H 1164 SIMON v. ST ATE OF KARNA TAKA 1165 deposition of PW 97, who is the Superintendent of Police, is vitally A interested in securing the conviction of the appellants; that it is highly improbable that PW 97_has identified the appellants even after suffering manifold injuries in the blast and in subsequent dust arising from the blast; that the identification by the witnesses for the first time in court without a test identification parade after a long period of the incident is a weak B piece of evidence and cannot be made the basis of conviction; that the names of the appellants were not mentioned in the FIR; that the testimony of PWs. 63, 65 and 66 should be discarded on the ground that they relied on PW 89 in identifying the appellants; that after the blast of land mines, there was no exchange of fire; and that PWs. 63 to 66 and PW 97, who had seen the appellants at the place of occurrence, could not identify the C appellants except by going near them in the Court hall. In response to the notices of this Court to the appellants as to why the punishment be not enhanced from life imprisonment to death penalty, the appellants contended that the crime was committed under duress from the main accused and hence a mitigating circumstance for not awarding D the death penalty; and that this Court has already dismissed the Special Leave Petition of the State for enchancement of sentence. Dismissing the appeals and enhancing the sentence of life imprisonment to death sentence, the Court. HELD: I.I. Mere wrong identification by one of the eyewitnesses by itself cannot be fatal to the case of the prosecution. The wrong identification made by PW 89 of all the accused except one by itself would not be fatal if the case of the prosecution on the basis of other evidence E adduced by it stands proved. [1172-D-E[ F 1.2. None of the injuries of PW 97 were such as would hamper the witness spotting and seeing the accused. Moreover, PW 97 was a senior officer who had worked for nearly one and half years as in-charge of the Task Force that had been constituted to Nab Veerapan and his gang. Regarding the witness being shattered and perplexed, PW 97 explained G that he was perplexed for two or three minutes. He has deposed to have seen the accused persons on ea
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