Criminal Procedure Code, 1973
Ss. 154 and 157 - FIR - Name of appellant A-2 not mentioned in FIR - PW 2, author of complaint did not offer himself for
cross-examination - In spite of best efforts of prosecution, PW 2 could not be produced - Trial court had no option but to
ignore his evidence - Whole purpose of complaint is to set in motion the investigation - Investigating officer after receipt
of complaint, set the law in motion and, sent record of complaint to Magistrate - Apart from PW 2, author of complaint and
also eyewitness, nine other witnesses fully supported prosecution - Investigating officer, who initially received a
telephonic message regarding occurrence sent his staff who brought PW 2 to police station through whom Ext. 96
(complaint) came to be received - Closely followed by said act, police was alerted which resulted in PWs 13 and 18
apprehending accused along with Maruti van along with weapons used for crime - Held, case should not be thrown out
because PW 2 did not offer himself for cross-examination - Non-reference of name of appellant in Ext. 96 pales into
insignificance especially when complicity of appellant in commission of crime was otherwise fully established by
prosecution,
Subhash Krishnan v. State of Goa, (2012) 8 SCC 365,2012 AIR SCW 4699
Penal Code, 1860
Ss. 364, 362, 340 & 342 and S. 34 - Wrongful confinement and abduction for murder - Ingredients of - Deprivation of
personal liberty - What is - ``Wrongfully restrain'' a person - ``Compel by force'' to go from any place - What are -
Conscious and wilful resistance by victim while being conscious enough to resist, held, is not a necessary ingredient -
Depriving a person of capacity to resist if enough - Rendering a person unconscious so that he cannot resist any
restraints and can be taken away from any place against his will though not capable of consciously resisting the same,
and to be then murdered before regaining consciousness, held, are enough to satisfy ingredients of S. 342 and Ss.
362/364 - Victim rendered unconscious by accused and then carried away in vehicle to be done to death by same
accused - Held, the same did amount to wrongful confinement and abduction for murder - Trial court acquitting accused
of offences under Ss. 364 and 342 (though convicting them under Ss. 302/34) - Trial court reasoning that victim was
carried away in dicky/boot of van to place where he was hanged to death, only after victim had been rendered
unconscious due to blows inflicted on victim by very same accused - Trial court thus reasoned that victim having been
deprived of his will or volition due to being unconscious could not be said to have been wrongfully restrained nor
compelled by force nor induced by deceitful means to go from any place - So offences under S. 342 and Ss. 362/364
could not be made out against accused - High Court reasoning that it was the criminal assault that rendered victim
unconscious which was the force by which victim was ``compelled by force to go from any place to be murdered'', thus
satisfying ingredients of Ss. 362/364 - Similarly, it was by being rendered unconscious and being deprived of his will and
volition that victim was ``wrongfully restrained from proceeding beyond circumscribing limits'' of boot/dicky of van, thus
satisfying ingredients of Ss. 340/342 - Held, as rightly concluded by High Court, accused wrongfully restrained victim by
assaulting him and causing him to lose consciousness, whereafter he was shifted to a different place, where he was
killed by hanging - Thus, every ingredient of offences under Ss. 342 and 364 with aid of S. 34 was clearly made out,
S. 120-B r/w Ss. 302, 342, 364 and S. 504 r/w S. 34 - Abduction, wrongful confinement and murder - Conviction
confirmed - Appreciation of evidence - Appellant A-2 claiming that he could not be implicated with other accused -
Accused persons assaulted deceased with knife, sword and bamboo stick and fisticuffs, all viewed by persons standing
nearby - After severe assault on deceased, A-2 brought a Maruti van in which deceased was taken away - Maruti van in
which deceased was carried, was intercepted by police within two hours - A-1 was found driving the vehicle with other
accused persons also in van in which knife, sword, bamboo stick and a right foot chappal with bloodstains were
recovered - At instance of A-1, body of deceased was discovered next morning hanging from branch of a tree -
Bloodstains found on various articles seized revealed blood group of deceased - Trial court convicted A-1 to A-4 under
Ss. 120-B and 302 r/w S. 34 and acquitted them under Ss. 342, 504 and 364 r/w S. 34 - High Court convicted them
under Ss. 342 and 364 r/w S. 34 also - Appellant being A-2 made total denial of offence - Held, there are overwhelming
evidence on record regarding participation of A-2 in offence by sharing common intention along with other accused who
were convicted of various offences - There was clear-cut evidence of PW 21, owner of Maruti van, implicating A-2, whose
evidence was not controverted in any manner relating to fact that it was appellant A-2 who took Maruti van from him
which was identified as having been used for crime - PW 25, mechanic, who was working in garage of deceased made a
specific reference to presence of appellant A-2 in van when accused persons visited garage of deceased to enquire
about his whereabouts - PWs 14, 33, 16, 23 and 27 made specific reference to overt acts of appellant A-2 in assault on
deceased with a sword - Medical evidence corroborated testimony of eyewitnesses, (2012) 8 SCC 365-B
Evidence Act, 1872
S. 9 - Identification - Test identification parade - TIP if defective - Corroboration by identification in court - Appellant A-2
was identified by two witnesses, PWs 14 and 33 in TIP - Appellant A-2 raised objection that accused persons had
already been shown by police officials to said witnesses prior to TIP - A-2 was permitted to change his shirt on his own
asking - He subjected himself to TIP in which he was identified by PWs 14 and 33 without any hesitation - When such
identification was proved to satisfaction of court, there was nothing more to be proved about manner in which TIP was
held - Witnesses were not cross-examined by defence as to manner in which they were asked to identify appellant A-2 in
TIP, or alleged defects in holding of said parade - Held, it is too late for appellant A-2 to contend that identification parade
was not carried out in the manner known to law - Evidence of other eyewitnesses, namely, PWs 16, 23, 26, 27 and 34 in
having identified him in court by making specific reference to red-coloured shirt worn by him at the time of occurrence
fully corroborated version of PWs 14 and 33 who had identified A-2 in TIP,
Criminal Trial
Identification
Occurrence took place on 10-10-2003 - TIP was held on 3-11-2003 - Held, it cannot be held that there was a long gap
in between, in order to claim that witnesses could not have identified appellant-accused - PW 14 stated that she had
already seen appellant in village also, though she did not know his name, (2012) 8 SCC 365-D
Criminal Trial
Witnesses
Credibility of - Time and distance - Occurrence had taken place at 4.30 p.m. - Presence of eyewitnesses was not in
dispute - Eyewitnesses had seen occurrence from a distance of 70 m - Even in the vicinity of 70 m when about 8 persons
were assaulting deceased with sword, knife and danda on road, in full public gaze, it would have definitely caught the
eye of everyone standing thereat - Incident happened within 4-5 minutes - As many as 36 injuries were found on body of
deceased caused by blunt side of sword, knife as well as danda - In inflicting so many injuries time taken would have
been sufficient enough for witnesses to have made an observation as to role played by accused in crime - Held, version
of eyewitnesses that they were able to see specific part played by different accused and, in particular, appellant A-2 who
was wielding a sword, in absence of any mala fides attributed to witnesses, cannot be rejected - No scope for doubting
the version of witnesses regarding participation of appellant in crime,
Criminal Trial
Injuries, Wounds and Weapons
Injuries on accused - Explanation if needed - None of witnesses said anything about severe injury suffered by A-4 on
his forehead - A-4 complained that he was assaulted by fist-blows all over his body, but doctor did not notice any injury or
marks on his body - High Court found that no evidence was led as regards alleged assault on A-4 by sword - Not even a
suggestion was put to any prosecution witness in cross-examination to state that there was assault by anyone - Courts
below rightly concluded about possibility of A-4 having suffered injury with aid of Ext. 12 (sword) which was extensively
used by appellant A-2 and inasmuch as A-4 was also actively involved in crime - In light of overwhelming evidence of
other eyewitnesses, medical evidence and forensic reports, wrong statement of PW 23 that he saw appellant A-2 having
suffered bleeding injury, cannot be said to have caused any serious dent in prosecution case, (2012) 8 SCC 365-F
Criminal Procedure Code, 1973
Ss. 154 and 157 - FIR - Name of appellant A-2 not mentioned in FIR - PW 2, author of complaint did not offer himself for
cross-examination - In spite of best efforts of prosecution, PW 2 could not be produced - Trial court had no option but to
ignore his evidence - Whole purpose of complaint is to set in motion the investigation - Investigating officer after receipt
of complaint, set the law in motion and, sent record of complaint to Magistrate - Apart from PW 2, author of complaint and
also eyewitness, nine other witnesses fully supported prosecution - Investigating officer, who initially received a
telephonic message regarding occurrence sent his staff who brought PW 2 to police station through whom Ext. 96
(complaint) came to be received - Closely followed by said act, police was alerted which resulted in PWs 13 and 18
apprehending accused along with Maruti van along with weapons used for crime - Held, case should not be thrown out
because PW 2 did not offer himself for cross-examination - Non-reference of name of appellant in Ext. 96 pales into
insignificance especially when complicity of appellant in commission of crime was otherwise fully established by
prosecution,
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