LexVISHWANATHA versus THE STATE OF KARNATAKA BY THE SECRETARY, HOME DEPARTMENT
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[2024] 7 S.C.R. 50 : 2024 INSC 482 Vishwanatha v. The State of Karnataka by the Secretary, Home Department (Criminal Appeal No. 129 of 2012) 08 July 2024 [Sudhanshu Dhulia* and Prasanna B. Varale,JJ.] Issue for Consideration High Court reversing the order of acquittal found the appellant along with co-accused (now deceased) guilty of offences under Sections 302 and 450 read with Section 34 of Penal Code, 1860 and sentenced them. In view of doubt as regards the identity of the appellant, whether it was the accused persons who were responsible for the death of PW-1 and PW-3’s mother. Headnotes† Evidence – Test Identification Parade (TIP) – Absence of – When fatal – As per the prosecution, the appellant and the co-accused (now deceased) broke into the house of PW-1 and PW-3 to commit robbery when they were not at home and killed their old mother – However, this was witnessed by PW-1 when she returned home at around 12:30 in the afternoon but, she could not enter the room as it was locked from inside – On raising alarm, PW-2, a neighbour came and they both peeped through the window of the bedroom and saw the incident – TIP not conducted, PW-1 and PW-2 identified accused in Court – Trial Court acquitted the accused persons – Acquittal reversed by High Court – Correctness: Held: As per the eyewitnesses, PW-1 and PW-2 they saw the two accused strangulating PW-1’s mother by pulling both ends of the rope – However, their evidence does not corroborate with the post mortem report – 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 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 – Absence of any reasonable explanation as to how PW-1 reached her house in a * Author [2024] 7 S.C.R. 51 Vishwanatha v. The State of Karnataka by the Secretary, Home Department short span of time of 21/2 hours, after leaving home at 10:00 AM, creates doubt on the prosecution story – Furthermore, appellant was not known to any of the witnesses and more pertinently, the two eyewitnesses – Co-accused was related to the complainant and was thus, known to the eyewitnesses – Hence, there was no requirement of TIP as regards him – But, the appellant was a total stranger to PW-1 and PW-2 – His name ‘Vishwanatha’ came to their knowledge, only after co-accused called him by name exhorting him to run – 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 a case where the identity of 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 was none in the present case – There were six persons by the name of ‘Vishwanatha’ in the locality and when there is doubt on the presence of the two star witnesses PW-1 and PW-2 (who identified the accused), the identity of the present appellant remained in doubt – Not safe to convict the appellant solely only on the basis of the testimony of PW1 and PW2 – Prosecution not able to prove its case beyond reasonable doubt – Appellant acquitted by giving him the benefit of doubt – Impugned judgment set aside as far as it relates to the conviction of the appellant. [Paras 13-17, 19] Case Law Cited Mulla v. State of U.P. [2010] 2 SCR 633 : (2010) 3 SCC 508; Malkhansingh v. State of M.P. [2003] Supp. 1 SCR 443 : (2003) 5 SCC 746 – relied on. List of Acts Penal Code, 1860. List of Keywords Test identification parade; Absence of test identification parade; Order of acquittal reversed; Doubt as regards the identity of the accused; Robbery; Stareyewitnesses; Identity of accused not known; Identification of accused in court; Prior TIP; Description of accused either in FIR/ statement of witness; Benefit of doubt; Case not proved beyond reasonable doubt. 52 [2024] 7 S.C.R. Digital Supreme Court Reports Case Arising From CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.129 of 2012 From the Judgment and Order dated 06.06.2009 of the High Court of Karnataka at Bengaluru in CRLA No. 1217 of 2002 Appearances for Parties X M Joseph, Omanakuttan K. K., Antony Ignatius M J, Advs. for the Appellant. R Nedumaran, D. L. Chidananda, Advs. f
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