Allowed

Sri. Lokesh @ Nepali v. State of Karnataka

Karnataka HC7 Jan 2022CRL.A/1850/2017

Case brief

AI extract

What is this about?

Appeals by two accused convicted under Section 302 read with Section 34 IPC for a night-time stabbing. The court found the eyewitnesses had not identified the assailants, no test identification parade was held, and the arrest evidence was contradictory. Conviction and life sentence set aside and the accused acquitted.

What did the court decide?

Impugned judgment of conviction and order of sentence dated 07.04.2017 set aside; accused Nos.1 and 3 acquitted under Section 302 read with Section 34 IPC; accused No.1 directed to be released forthwi

Sri. Lokesh @ Nepali Vs State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JANUARY, 2022

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PRESENT

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THE HON'BLE Mr. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE Mrs. JUSTICE M.G. UMA

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CRIMINAL APPEAL No.1850/2017

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C/W

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CRIMINAL APPEAL No.1578/2017

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IN CRL. A. No.1850/2017:

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BETWEEN:

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SRI. LOKESH @ NEPALI, S/O. DHARAMARAJ, AGED ABOUT 25 YEARS, R/O. METACOST FACTORY, R.I, POLYTECHNIC COLLEGE, 11^TH MAIN, III PHASE, PEENYA INDUSTRIAL AREA, BENGALURU.

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...APPELLANT

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(BY SRI VEERANNA G. TIGADI, ADVOCATE)

AND:

STATE OF KARNATAKA

REP BY INSPECTOR OF POLICE, RAJAGOPALNAGAR POLICE STATION, REP BY THE STATE PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KARNATAKA, BENGALURU-560 001.

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...RESPONDENT

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(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP )

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 07.04.2017 PASSED BY THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN S.C.NO.317/2014 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC.

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IN CRL. A. No.1578/2017:

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BETWEEN:

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CHETHAN KUMAR @ CHETHU S/O SHIVANNA, AGED ABOUT 28 YEARS, R/AT MACHOHALLI GATE, NEAR POOJA HOSPITAL, THAVAREKERE, MAGADI TALUK, RAMANAGARA DISTRICT.

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...APPELLANT

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(BY SRI DEVENDRA E.H., ADVOCATE FOR SRI MOHAN KUMAR D., ADVOCATE)

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AND:

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STATE OF KARNATAKA STATE BY POLICE INSPECTOR, RAJAGOPALNAGAR POLICE STATION, BENGALURU.

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REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA, BENGALURU-560 001.

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...RESPONDENT

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(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP )

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 07.04.2017 PASSED BY THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN S.C.NO.317/2014 - CONVICTING THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC.

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THESE CRIMINAL APPEALS COMING ON FOR ORDERS THIS DAY, B.VEERAPPA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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Criminal Appeal No.1850/2017 is filed by Accused No.1 and Criminal Appeal No.1578/2017 is filed by Accused No.3.

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These criminal appeals are filed by the appellants/Accused Nos.1 and 3 against the judgment of conviction and order of sentence dated 7^th April 2017 made in S.C. No.317/2014 on the file of the LXV Addl. City Civil and Sessions Judge, Bangalore City, convicting Accused Nos.1 and 3 for the offence punishable under Section 302 r/w Section 34 of IPC and sentencing them to undergo imprisonment for life and to pay fine amount of Rs.50,000/- each.

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It is the case of the prosecution that on 24.8.2013 at about 10.30 p.m. deceased Basavaraju and PW.4 - Mehaboob Ali were proceeding near the premises of Indian Garage, 11th Main Road, 3^rd Phase, Peenya Industrial Area, Kaveri Nagar, Laggere, within the limits of Rajagopalanagar Police Station and at that time, they were wrongfully restrained by Accused Nos.1 and 3 along with absconding Accused No.2 and questioned them as to why they were proceeding there at late night. There was exchange of words between them and Accused Nos.1 to 3 have abused the deceased

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and PW.4-Mehaboob Ali, in filthy language. Hence deceased questioned Accused Nos.1 to 3 about abusing him and PW.4. Therefore with their common intention to commit the murder of deceased, Accused Nos.2 and 3 held him and at that juncture, Accused No.1 stabbed below the left portion of chest and right hand of deceased with the button knife - MO.3 and as a result Basavaraj collapsed on the ground and at that juncture, absconded Accused No.2 robbed the Cell phone of deceased and then they ran away from the scene of offence. Immediately, PW.3 - Nagaraju and PW.4 - Mehaboob Ali shifted the deceased to Premier Sanjeevini Hospital, T. Dasrahalli, wherein the injured Basavaraju was brought dead and thereby Accused Nos.1 to 3 have committed alleged offences.

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Accordingly, PW.3 - Nagaraju lodged the complaint before the Rajgopalnagar Police Station on 25.8.2013 at 1.30 a.m. and the same was registered in Crime No.426/2013 for the offence punishable under the provisions of Section 302 r/w 34 of IPC. After investigation, the Investigating Officer filed the charge sheet. After filing of charge sheet, committal Court took cognizance of the

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offences and committed the case to the Court of Sessions. The learned Sessions Judge framed the charges against Accused Nos.1 to 3 for the offences punishable under Sections 302 and 392 r/w 34 of IPC and the same was read over to the accused in the language known to them. The accused pleaded not guilty and claimed to be tried. During the pendency of the case, Accused No.2 remained absconding. Hence, the case against Accused No.2 was ordered to be split up and registered a separate case against him and the learned Judge proceeded against Accused Nos.1 and 3 only.

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In order to establish its case, the prosecution examined in all 17 witnesses as PWs.1 to 17 and got marked 18 documents as per Ex.P1 to Ex.P18 and also marked MOs.1 to 8. After completion of evidence of the prosecution witnesses, the statements of Accused Nos.1 and 3 were recorded as contemplated under the provisions of Section 313 of the Code of Criminal Procedure, who denied the incriminating evidence adduced against them, but have not adduced any defence evidence.

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The learned Sessions Judge based on the aforesaid

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pleadings, has framed three points for consideration. Considering

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both the oral and documentary evidence on record, the learned Sessions Judge answered Point Nos.1 and 2 in the affirmative holding that the prosecution proved beyond all reasonable doubt that the death of deceased Basavaraj was culpable homicide and not under natural circumstances and further held that the prosecution proved beyond all reasonable doubt that on 24.8.2013 at about 10.30 p.m., deceased Basavaraju and PW.4 - Mehaboob Ali were proceeding near the premises of Indian Garage compound, 11th Main Road, 3^rd Phase, Peenya Industrial Area, Kaveri Nagar, Laggere, within the limits of Rajagopalanagar Police Station and at that time, they were wrongfully restrained and abused in filthy language by Accused Nos.1 & 3 along with absconded Accused No.2 and when the deceased Basavaraju questioned the same, with their common intention to commit the murder of deceased, Accused Nos.2 and 3 held him and at that juncture, Accused No.1 stabbed below the left portion of chest and right hand of deceased, by means of button knife - MO.3 and as a result Basavaraj succumbed to the injuries and thereby, Accused Nos.1 and 3 have committed the offence punishable under Section 302 r/w Section 34 of IPC.

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Learned Sessions Judge further recorded a finding that the prosecution failed to prove beyond reasonable doubt that Basavaraju-the deceased collapsed on the ground, accused No.2 robbed his cell phone from his shirt pocket and thereby accused Nos.1 and 3 have committed an offence punishable under Section 392 read with Section 34 of IPC. Accordingly, learned Sessions Judge by the impugned judgment of conviction and order of sentence acquitted accused Nos.1 and 3 for the offence punishable under Section 392 read with Section 34 of IPC and proceeded to convict accused Nos.1 and 3 for the offence punishable under Section 302 read with Section 34 of IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.50,000/- each (Rupees Fifty thousand only). Hence, the present appeals are filed by accused Nos.1 and 3.

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The prosecution has not filed any appeal against the impugned judgment of acquittal, acquitting accused Nos.1 and 3 under the provisions of Section 392 read with Section 34 of IPC.

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We have heard the learned counsel for the parties.

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Sri. Veeranna.G.Tigadi, learned counsel for the appellant/accused No.1 in Crl.A.No.1850/2017 vehemently contended that the impugned judgment of conviction and order of sentence passed by the trial Court convicting accused No.1 and sentencing him to undergo imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under Section 302 read with Section 34 of IPC is illegal, perverse and liable to be set aside. The trial Court has erred in not considering the materials placed on record and wrongly relied on the evidence of alleged eye-witnesses to the incident i.e., PW.3-N.A.Nagaraju, PW.4-Mehaboob Ali, PW.9R.K.Basavaraju and PW.10-Ramesh, who are all interested witnesses. Admittedly, PW.9 in his cross-examination stated that he could not identify the assailants. The said material aspect has not been considered by the trial Court. He further contended that the identity of the accused who stabbed the deceased was not established as admitted by PWs.4 and 9 in their cross-examination. It is further contended that Ex.P1-spot mahazar does not disclose about any light on the date of incident that was occurred on 24.08.2013 at about 10:30 p.m. Admittedly, the complaint filed by PW.3 is against unknown persons.

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He would further contend that no Test Identification

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Parade was conducted. In the absence of conducting any Test Identification Parade, merely because the accused persons were identified before the court after three years of incident, cannot be a ground to implicate accused No.1 in the homicidal death of the deceased. Thereby, learned Sessions Judge erroneously convicted accused No.1. Learned counsel further contended that the accused persons were identified for first time in the court after three years of incident, which is impermissible. The prosecution has suppressed the very genesis of the case. PW.3 in his cross-examination stated that deceased has not consumed alcohol at the time of incident, but Doctor-PW.14 in his cross-examination, has admitted that the deceased has consumed alcohol at the time of incident. He further contended that recovery of the Knife-MO.3 at the instance of accused No.1 and Mobile-MO.4 from accused No.2 is doubtful as the finding recorded by the trial Court in respect of point No.3 with regard to Section 392 read with Section 34 of IPC, which is an adverse finding against the prosecution is not challenged. Thereby, the prosecution has not proved the recovery at the instance of accused Nos.1 to 3. He would further contend that the voluntary

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statements of accused Nos.1 and 2 are verbatim. Thereby, the recovery if any is at the instance of police and not on the basis of the voluntary statements of accused Nos.1 and 3.

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Learned counsel further contended that according to PW.17-Investigating Officer, accused Nos.1 and 2 were apprehended on 25.08.2013 at about 9:30 a.m. i.e., within 11 hours from the time of incident and on the same day the statements of PWs.4 and 9 were recorded. But PW.11-Head Constable stated that accused Nos.1 and 2 were apprehended and produced before the Investigating Officer at about 9:45 p.m., on 25.08.2013 but Ex.P9-Report/statement of PW.11 depicts that PW.11 and other staff have collected information about the presence of the accused persons in the ground of Sriranga Vidyanikethana School and that at about 9:00 p.m., on 25.08.2013, enquired them and collected their name and address. Thereby, the very arrest/apprehension of accused persons is doubtful. Therefore, the benefit of doubt has to be given to accused No.1. He would further contend that PW.2 though supported the case of the prosecution stating that as per Ex.P4-Seizure Mahazar there was

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recovery of MO.3, but in the cross-examination states that there was no recovery at all. It is further contended that the entire case of the prosecution is only on the basis of assumption and presumption. Admittedly, complaint lodged by PW.3 is against unknown persons. Thereby, the impugned judgment of conviction and order of sentence passed by the trial Court is without any basis. Therefore, he sought to allow these appeals.

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The learned counsel for accused No.1 in support of his contentions, with regard to identity, relied upon the following dictums of the Hon’ble Supreme Court:

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I. Ashoksinh Jayendrasinh v. State of Gujarat, (2019) 6 SCC 535, wherein it is held in Paragraph-12 as under:

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"12. The occurrence was of 23-11-1997 at 9.00 p.m. in the agricultural field of complainant-Somabhai Rupabhai (PW 3), where it was dark. The panchnama of the scene of occurrence (Ext. P-73) shows no indication of the electric light either in the animal shed situated behind the house of complainant or that there is any electric pole anywhere in the vicinity or that there is a light on the well which is supplying water. Case of prosecution is that the appellant and six other co-accused surrounded the complainant

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party and there were three gunshots fired. The injured witness (PW 6) in his cross-examination has admitted that he had not stated anything about the burning light either in the animal shed or anywhere in the vicinity. In the absence of any evidence as to the light aspect, the possibility of identifying the accused in the darkness of the agricultural field of the complainant, particularly at 9.00 p.m. becomes doubtful. It is also to be pointed out that there is no evidence as to whether there was moonlight on 23-11-1997 and complainant has also not stated that he has identified the appellant or other co-accused with the help of moonlight. In the absence of evidence as to the availability of sufficient light, the identification of the accused and the overt act attributed to the appellant becomes doubtful".

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II. Iqbal v. State of U.P., (2015) 6 SCC 623 (Paragraphs No: 10 to 14)

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"10. In cases of dacoity, usually, the offence is committed by unknown persons with the criminal background. It is only in very few cases, are the accused dacoits known to the victim. PW 1 Patia Singh and PW 2 Jay Singh have stated that they had witnessed the incident from a distance of three-and-a-half yards. PW 3 Begraj also stated that he had witnessed the incident from a distance of five-six yards in the feeble torchlight.

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Admittedly, according to the witnesses, there was no electricity at the time of incident in their houses. They claimed that they could see the accused persons with the help of their torchlights. In the courts below, on behalf of the accused persons, it was argued that the night of incident was an amavasya-new moon night. On a perusal of calendar of that month in that year, it is seen that the intervening night of 21-9-1979/22-9-1979 was a new moon night i.e. “amavasya”.

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11 . In our considered view, it is unbelievable that on a new moon night when it was pitch dark, the witnesses who were frightened and who were hiding themselves behind the walls in order to save themselves, could have seen actual faces of the accused persons just by flash of torchlights on their faces and in the light of lantern. Further, there were about 14-15 dacoits in number, all armed with deadly weapons and were continuously making ingress and egress in the house of the deceased, it becomes inconceivable as to how the witnesses standing at a distance in a feeble light would have been able to identify the dacoits.

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12 . When the witnesses are in a panicky state and standing at a distance of three-and-a-half yards and fivesix yards, it is doubtful whether the witnesses would have gained an enduring impression of the identity of the

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accused. In the commission of offence of dacoity, identification becomes susceptible to errors and miscarriage of justice. In Hari Nath v. State of U.P. [(1988) 1 SCC 14 : 1988 SCC (Cri) 14], this Court held as under: (SCC pp. 19-21, paras 16-19)

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“16. … The conduct of an identification parade belongs to the realm, and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test.

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17. The one area of criminal evidence susceptible of miscarriage of criminal justice is the error in the identification of the criminal. Indeed Prof. Borchard's Convicting the Innocent records several criminal convictions in which the accused was subsequently proved innocent. The major source of the error is to be found in the identification of the accused by the victim of the crime. Indeed the

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learned author refers to the source of mistaken identification thus:

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‘The emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally — the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused.’

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(See Identification Parades II—Criminal Law Review, 1963—p. 546.)

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18. Glanville Williams in The Proof of Guilt — (Hamlyn Lectures) — refers to the errors of recognition breeding an invincible assurance in the witnesses, highly deceptive for those who are not forewarned of such possibilities, and excerpts Gorphe's results of a continental investigation, thus:

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‘There is no difference from the subjective point of view, between true and false recognition, so far as

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their intrinsic qualities are concerned, and there are no objective signs to distinguish one from the other. … The witness's certainty may not be immediate, without this delay being necessarily a sign of error. [ Ed. : Matter between asterisks emphasised in original.] Nevertheless, error is more frequent when recognition comes some time after seeing [ Ed. : Matter between asterisks emphasised in original.] ….

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The act of recognition is very open to suggestion in all its forms…. Resemblance is a matter of relativity. For a white person, all negroes are like each other, and conversely. A person can much better distinguish those of his own age and condition than those of different ages and condition. Uniform is a cause of fallacious resemblance, above all for those who do not wear it.’

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19. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identify.”

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(emphasis supplied)

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13 . As noticed earlier, test identification parade was conducted in jail on 15-11-1979 by PW 6 Special Executive

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Magistrate in which the witnesses PW 1, PW 2 and PW 3 identified the accused. As far as test identification parade is concerned, it is relevant to note that accused Kripa has contended that he had been falsely implicated in the case because of the rivalry with Rampal Singh and his maternal uncle Mangeram. Accused Kripa also pleaded that the witnesses knew them as they were living in nearby villages and because of rivalry, they were being falsely implicated in the case. So far as Appellant 2 Khurshed and another co-accused Kishnu are concerned, they had stated that they were arrested by the police from their houses and they were shown to the witnesses at the police station and they were also photographed before holding the test identification parade.

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14. Even though the complainant PW 1 and other witnesses have denied the defence plea, in the light of the fact that the incident occurred in the pitch of darkness, the identification of the appellants by the witnesses has to be viewed with caution and the Court is to look for corroboration strengthening the identification".

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III. Noorahammad v. State of Karnataka, (2016) 3 SCC 325

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"24 . In the instant case, TIP of the appellant-accused should have been carried out at the instance of the investigating officer. The High Court, in this regard, has erred in appreciating the evidence on record in the light of

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the facts and circumstances of the present case. From the material on record, it is sufficiently clear that the incident occurred in the night around 3.00 a.m., at a place where there was no proper light. From the material on record it is not clear whether the source of light in the form of torches and jeep flash light was sufficient to enable the forest officers to see the appellant-accused for the purpose of their identification in later stage of the case. No doubt, law with regard to the importance of TIP is well settled that identification in court is a substantive piece of evidence and TIP simply corroborates the same.

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25 . This Court in Dana Yadav v. State of Bihar [Dana Yadav v. State of Bihar, (2002) 7 SCC 295 : 2002 SCC (Cri) 1698] has elaborated upon the importance of test identification parade in great details. The relevant paras 6, 7 and 8 read thus: (SCC pp. 302-04)

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“6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a

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weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in Kanta Prashad v. Delhi Admn. [Kanta Prashad v. Delhi Admn., AIR 1958 SC 350:1958 Cri LJ 698], Vaikuntam Chandrappa [Vaikuntam Chandrappa v. State of A.P., AIR 1960 SC 1340 : 1960 Cri LJ 1681], Budhsen [Budhsen v. State of U.P., (1970) 2 SCC 128 : 1970 SCC (Cri) 343], Kanan v. State of Kerala [Kanan v. State of Kerala, (1979) 3 SCC 319 : 1979 SCC (Cri) 621], Mohanlal Gangaram Gehani v. State of Maharashtra [Mohanlal Gangaram Gehani v. State of Maharashtra, (1982)

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1 SCC 700 : 1982 SCC (Cri) 334], Bollavaram Pedda Narsi Reddy [Bollavaram Pedda Narsi Reddy v. State of A.P., (1991) 3 SCC 434 : 1991 SCC (Cri) 586], State of Maharashtra v. Sukhdev Singh [State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700 : 1992 SCC (Cri) 705], Jaspal Singh v. State of Punjab [Jaspal Singh v. State of Punjab, (1997) 1 SCC 510 : 1997 SCC (Cri) 358], Raju v. State of Maharashtra [Raju v. State of Maharashtra, (1998) 1 SCC 169 : 1998 SCC (Cri) 296], Ronny [Ronny v. State of Maharashtra, (1998) 3 SCC 625 : 1998 SCC (Cri) 859], George v. State of Kerala [George v. State of Kerala, (1998) 4 SCC 605 : 1998 SCC (Cri) 1232], Rajesh Govind Jagesha [Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428 : 1999 SCC (Cri) 1452], State of H.P. v. Lekh Raj [State of H.P. v. Lekh Raj, (2000) 1 SCC 247 : 2000 SCC (Cri) 147] and Ramanbhai Naranbhai Patel v. State of Gujarat. [Ramanbhai Naranbhai Patel v. State of Gujarat, (2000) 1 SCC 358 : 2000 SCC (Cri) 113]

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7. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in court without there being any corroboration whatsoever can form the

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sole basis for his conviction. In Budhsen [Budhsen v. State of U.P., (1970) 2 SCC 128 : 1970 SCC (Cri) 343] it was observed: (SCC p. 132, para 7)

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‘7. … There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration.’

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8. In State of Maharashtra v. Sukhdev Singh [State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700 : 1992 SCC (Cri) 705] it was laid down that if a witness had any particular reason to remember about the identity of an accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based. In Ronny [Ronny v. State of Maharashtra, (1998) 3 SCC 625 : 1998 SCC (Cri) 859] it has been laid down that where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely

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because no test identification parade was held. In that case, the accused concerned had a talk with the identifying witnesses for about 7/8 minutes. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in court without the same being corroborated either by previous identification in the test identification parade or any other evidence, was upheld by this Court. In Rajesh Govind Jagesha [Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428 : 1999 SCC (Cri) 1452] it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by this Court. In State of H.P. v. Lekh Raj [State of H.P. v. Lekh Raj, (2000) 1 SCC 247 : 2000 SCC (Cri) 147] it was observed (at SCC p. 253, para 3) that:

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‘test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration.’

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In that case, laying down the aforesaid law, acquittal of one of the accused by the High Court was converted into conviction by this Court on the basis of identification by a witness for the first time in court without the same being corroborated by any other evidence. In Ramanbhai Naranbhai Patel [Ramanbhai Naranbhai Patel v. State of Gujarat, (2000) 1 SCC 358 : 2000 SCC (Cri) 113] it was observed: (SCC p. 369, para 20)

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‘20. … It, therefore, cannot be held, as tried to be submitted by the learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would

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become inadmissible or totally useless; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case.’

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The Court further observed: (SCC p. 369, para 20)

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‘20. … the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight.’

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In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court.”

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(emphasis supplied)

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26 . Another important fact which the High Court has failed to appreciate is that the prosecution witness identified the appellant-accused in court for the first time, during trial, in the year 1997-1998 and the incident occurred in the year 1995. Thus, after considering some undisputed facts like occurrence of incident at night, at a place with improper lighting and all the appellant-accused were not known to

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the forest officers, except one present at the place of incident, there should have been TIP conducted at the instance of the investigating officer. Therefore, the identification of the appellant-accused by the prosecution witness for the first time after a gap of more than 2 years from the date of incident is not beyond reasonable doubt, the same should be seen with suspicion".

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Hence, the learned counsel for the appellant/accused No.1 prays for allowing the Criminal Appeal.No.1850/2017 in the interest of justice.

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Sri. Devendra.E.H., learned counsel for Sri.Mohan Kumar.D, learned counsel for the appellant/accused No.3 in Crl.A.No.1578/2017, while adopting the arguments advanced by the learned counsel for accused No.1, contended that there are absolutely no materials against accused No.3 to implicate him in the homicidal death of the deceased. Admittedly, both oral and documentary evidence placed on record clearly depicts that the complaint was filed against unknown persons by PW.3 and the alleged eye-witnesses-PWs.1, 3, 4, 9 and 10 have clearly admitted that they have not identified the assailants. In the absence of

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identification of the accused, the imposition of punishment for imprisonment for life with fine under the provisions of Section 302 read with Section 34 of IPC against accused No.3 is without any basis. In the absence of conducting any Test Identification Parade by the Jurisdictional Police/Investigating Officer, the entire case of the prosecution is doubtful. Therefore, the benefit of doubt has to be given to accused No.3. Hence, he sought to allow the appeal.

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Per contra, Sri. Vijayakumar Majage, learned Additional State Public Prosecutor while justifying the impugned judgment of conviction and order of sentence passed by the trial Court, contended that the trial Court considering the entire materials on record in the proper prospective, came to the conclusion that accused Nos.1 and 3 are involved in causing the death of the deceased, which attracts the provisions of Section 302 read with Section 34 of IPC. He further contended that with regard to the arrest of accused Nos.1 and 3, the evidence given by the Investigating Officer-PW.17 and PW.11-Head Constable and Exs.P4 and P9 has minor discrepancies. The said discrepancy does not come in the way of prosecution case as the material on record

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clearly depicts that accused Nos.1 and 3 are involved in causing the death of the deceased. He further contended that there is no need to conduct Test Identification Parade as accused Nos.1 and 3 have been identified before the Police Station as well as before the Court. He further contended that MO.3-Knife was recovered at the instance of accused No.1 and MO.4-Mobile was recovered at the instance of accused No.2. Thereby, the prosecution has established beyond reasonable doubt the involvement of accused Nos.1 and 3 in the homicidal death of the deceased-Basavaraju. He would further contend that with regard to the adverse finding recorded by the trial Court under Section 392 read with Section 34 of IPC, the same need not be challenged as the Court found involvement of accused Nos.1 and 3 in the commission of offence.

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The learned Additional State Public Prosecutor further contended that as per FSL Report-Ex.P13, blood stains on the clothes of the deceased and MO.3-knife contains “AB” Group blood. Thereby, the prosecution proved its case beyond reasonable doubt. The trial Court rightly convicted accused Nos.1 and 3 for the offence punishable under Section 302 read with Section 34 of IPC and

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sentenced them to undergo imprisonment for life and to pay a fine of Rs.50,000/- each, the same is in accordance with law. Therefore, this Court may not interfere with the impugned judgment of conviction and order of sentence under the provisions of Section 374(2) of Cr.P.C. Hence, he sought to dismiss these appeals.

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In view of the aforesaid rival contentions urged by the learned counsel for the parties, the point that arises for our consideration is:

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“Whether the appellants/accused Nos.1 and 3 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, convicting them for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code, in the facts and circumstances of the present case?”

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We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials, including original records, carefully.

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As per Ex.P5-Complaint lodged by PW.3-N.A.Nagaraju on 24.08.2013 at about 10.30 p.m., when the deceased-Basavaraju and PW.4 were proceeding near the premises of Indian Garage, 11^th Main Road, 3^rd Phase, Peenya Industrial Area, Kaveri Nagar, Laggere, they were wrongfully restrained by accused Nos.1 to 3 and questioned them as to why they were proceeding there at late night and at that juncture, exchange of words took place between accused persons and deceased and that apart, accused Nos.1 to 3 have abused the deceased and PW.4 in filthy language and hence the deceased questioned accused Nos.1 to 3 about abusing him and PW.4. Therefore, with their common intention to commit the murder of deceased, accused Nos.2 and 3 caught hold the deceased and accused No.1 stabbed below the left portion of chest and right hand of deceased by MO.3-knife. As a result, the deceased collapsed on the ground and accused No.2 robbed his cell phone. The jurisdictional police registered the case against the unknown persons. After completion of investigation, the jurisdictional Investigating Officer filed the charge sheet against accused Nos.1 to 3.

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This Court being the Appellate Court, in order to

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re-appreciate the entire materials on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.

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(i) PWs.1, 3, 4, 9 and 10 are the alleged eyewitnesses to the incident. PW.1 specifically stated that accused Nos.1 to 3 were not known to him and also denied that he has identified the photo of the deceased. Witness has not whispered in his evidence that the Investigating Officer has drawn Ex.P1-Mahazar in his presence at the scene of occurrence and seized the blood-stained soil or sample soil i.e., MOs.1 and 2 in his presence. Thereby, he was treated as hostile.

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(ii) According to the prosecution, PW.2 is the witness to the recovery/seizure mahazar, who stated that at the time of mahazar, himself and CW.9 were present, they went along with the police and accused persons to the place where mahazar was drawn. He further stated that he was summoned to the spot to draw the mahazar. Accordingly, he and CW.9 went to the spot at about 1:00 to 2:00 p.m., when they went to the spot of the mahazar,

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accused Nos.1 and 2 were also present at the spot. Ex.P4 was drawn and there was recovery of MO.3 at the instance of accused Nos.1 and 2. Thereby PW.2 supported the case of the prosecution.

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(iii) According to the prosecution, PW.3 is one of the eye-witness to the incident. PW.3 in his crossexamination has admitted that at the time of lodging Ex.P5-complaint, he has given information to the police with regard to the description of the accused persons, but admitted that in Ex.P5complaint he has not given description of the accused persons and after lodging the complaint also, he has not given any information to the police with regard to description of the accused persons. He further stated that about 9:30 p.m., after finishing dinner from the house of CW.5, himself, PW.4 along with the deceased went out of the house but admitted that the same has not been stated by him in Ex.P5-complaint. He further stated that the deceased-Basavaraju was taken to the Sanjeevini Hospital at about 12:00 a.m., in the Car. The Doctors examined and declared that the deceased was brought dead. He further admits that the history of the injury sustained by the

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deceased was not given to the Doctor by him or by other persons who were with him.

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(iv) According to the prosecution, PW.4 who is also an eye-witness to the incident has stated on oath on par with PW.3. He deposed that on the date of incident, after finishing dinner in the house of CW.5, at about 10:30 p.m., himself along with PW.3 and deceased went out of the house for walking and at that time, three unknown persons came from the side of gas shop compound and questioned as to why they have come there at that time and started abusing in filthy language when the same was questioned by the deceased, there was exchange of words. At that time, out of three unknown persons, two persons have caught hold the deceased-Basavaraju and one person stabbed the deceased. Therefore, himself and PW.3 stepped back. At that time, one person snatched/robbed the mobile from the deceased-Basavaraju and the deceased fell down on the spot. When himself and PW.3 shouted/screamed, CWs.5 and 7 came to the spot by running. Immediately, the accused persons ran away from the spot. Witness identified the knife as MO.3. He supported the case of the prosecution. Witness further stated in the cross-

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examination that on the date of incident, either CW.5 or deceased or himself have not consumed any alcohol and denied that there was no quarrel between them and the accused persons. He admitted in the cross-examination that at the time of enquiry, he has not given any details to the police with regard to the description of the accused persons as the incident took place at about 10.30 p.m. Witness further stated that after apprehension of the accused persons, he was called to the police station for identification of the accused. Accordingly, he went there at about 4.30 a.m., and on the same day he has seen the accused persons at about 9.00 a.m., in the police station. Witness further stated that when the police called him over phone, they have not disclosed the names of the apprehended accused persons and he has not got any information stated with regard to the antecedents of the accused persons. He further denied the suggestion that even though he is not aware about the description of accused No.3, he has identified the said accused only before the Court at the instance of police. Same is the evidence of PW.10.

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(v) PW.9-R.K.Basavaraju reiterating the averments made in the chief examination has admitted in the cross-examination that at the time of giving statement to the police, he has stated with regard to the description of the accused persons. As the incident was taken place at night time, he had not identified the persons who were present at the spot at that time.

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(vi) PW.11, the Head Constable has stated that on 25.08.2013, himself and other staffs i.e., CWs.20 to 22 were deputed to apprehend the accused persons. Accordingly, on the same day at about 11.00 a.m., he along with other staff had gone in search of the accused persons and on receiving the information about the presence of the accused near Sriranga Vidyanikethana School, they went to the spot at about 9:00 p.m. and found accused Nos.1 and 2 in the ground of Sriranga Vidyanikethana School. Accused persons were taken into custody and their names and addresses were enquired. After that, they were produced before the Investigating Officer at about 9:45 p.m. Whereas, PW.17, the Investigating Officer has stated that he was not knowing about accused No.1 and his description and identity was not given either by

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PW.3 or by PW.4 to him. PW.17 admitted that PW.11 and CWs.20 to 22 have collected information about accused No.1 and after apprehending, produced before him. PW.17 further stated that accused No.1 was produced before him by PW.11 and other staff on 25.08.2013 at about 9:30 a.m., in the police station and at that time he conducted body search of accused No.1.

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Based on the aforesaid materials on record, the trial Court acquitted accused Nos.1 and 3 for the offence punishable under Section 392 read with Section 34 of IPC, but convicted accused Nos.1 and 3 under the provisions of Section 302 read with Section 34 of IPC.

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A careful perusal of the materials on record clearly depicts that PWs.4 and 9 in categorical terms admitted that the identity of the accused who stabbed the deceased was not known. It is also not in dispute that Ex.P1-Mahazar does not refer to any light at the scene of the incident that was occurred at about 10.30 p.m. Admittedly, the complaint is made against unknown persons. According to PW.11, accused Nos.1 and 2 were apprehended on 25.08.2013 and produced before the Investigating Officer at about

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9:45 p.m. on the same day and Ex.P9-Report/Statement produced by PW.11 depicts that they got information about 9.00 p.m., on that day. But the Investigating Officer stated on oath that on the same day, the statements of PWs.4 and 9 were recorded and accused Nos.1 and 2 were apprehended and produced before him at 9.30 a.m. i.e., within 11 hours from the date of incident.

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The material evidence of the prosecution witnesses especially evidence of the eye-witnesses-PWs.1, 3, 4, 9 and 10 clearly depicts that the prosecution has failed to establish the identity of the accused, who stabbed the deceased at about 10.30 p.m. As admitted by PWs.4 and 9 they have not identified accused persons and not given any information with regard to the description of the accused persons. In the absence of identity of the accused, it is inevitable on the part of the prosecution to conduct Test Identification Parade. Admittedly, in the present case, the Test Identification Parade was not at all conducted. When no Test Identification Parade was held, it cannot be said that the prosecution has established the involvement of the accused in the homicidal death of the deceased. Merely because the accused

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persons were identified before the Court after three years, the same is impermissible to convict the accused.

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In the present case, admittedly, the Test Identification Parade was not conducted by the Investigating Officer and so-called eye-witnesses-PWs.1, 3, 4, 9 and 10 have also not identified accused Nos.1 and 3 and the same was admitted in their crossexamination. The purpose of conducting Test Identification Parade is to enable the persons who claim to have seen the offender at the time of occurrence, to identify them from amongst other persons. The Test Identification Parade in other words tests the veracity of the eye-witnesses and as to whether the investigation proceeded in the right direction. In the absence of such Test Identification Parade and identification of the accused persons as deposed by the eyewitnesses stated supra, the conviction cannot be recorded. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Rajesh Alias Sarkari and Another v. State of Haryana, (2021) 1 SCC 118, wherein, the Hon'ble Apex Court considering the situation when the accused refused to undergo the Test Identification Parade and the requirement of conducting such Test

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Identification Parade as held in Paragraphs – 43, 43.4 and 43.8, which reads as under:

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"43 . The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarised as follows:

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43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held".

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43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The

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rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration".

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It is also not in dispute that some of the prosecution

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witnesses were called to the police station, where accused persons were in police lock-up and witnesses have given a liberty to identify the accused persons in the police lock-up. Based on the said source of information, accused Nos.1 and 3 were identified in the crossexamination of PWs.4 and 9. They have admitted that at the time of incident it was 10.30 p.m. and they have not identified the accused persons and they also admitted that the description of the accused persons was not given to the police at the time of recording their statements. There are material contradictions and omissions in the case of the prosecution. Therefore, impugned judgment of conviction and order of sentence passed by the trial Court against accused Nos.1 and 3 cannot be sustained. It is also pertinent to know that the acquittal order passed by the trial Court against accused Nos.1 and 3 in respect of offence punishable under Section 392 read with Section 34 of IPC has reached finality. It is well

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settled law that the witnesses who identified the accused persons for the first time in the court without knowing them before or in the absence of any Test Identification Parade would be valueless or unreliable. Admittedly, in the present case, it is the case of the prosecution that eye-witnesses identified the accused only in the police station and before the court. In the absence of any source or information about the identity or description about the accused, the evidence of the alleged eye-witnesses-PWs.1, 3, 4, 9 and 10 is valueless and unreliable.

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The Hon’ble Apex Court while considering the requirement of the Test Identification Parade in the case of Mohanlal Gangaram Gehani v. State of Maharashtra, (1982)

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1 SCC 700 at para – 20 and 25 held as under:

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"20. Thus, as Shetty did not know the appellant before the occurrence and no test identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High

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Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straightforward.

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25 . The only other evidence against the appellant is that of PWs 3 and 4. So far as PW 3 is concerned his evidence also suffers from the same infirmity as that of Shetty. PW 3 (Shaikh) admits at p. 22 of the paper-book that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident. He further admits that the names of the accused were given to him by the police. In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade the evidence of PW 3 was valueless and could not be relied upon as held by this Court in V.C. Shukla v. State (Delhi Admn.)² where¹ this Court made the following observations:(SCC p. 677, para 24)

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Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless."

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2 (1980) 3 SCR 500: (1980) 2 SCC 665 :

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1980 SCC (Cri) 561 :

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26. Even though the learned Additional SPP contended that

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there is minor discrepancies with regard to arrest of the accused persons, but the prosecution proved the recovery of MO.3-knife at the instance of accused No.1 and MO.4 at the instance of accused No.2 and that the discrepancy with regard to arrest has to be ignored, it is relevant to consider the evidence of PW.11, who is stated on oath that when they were deputed to apprehend the accused persons on 25.08.2013 along with CWs.20 to 22, he got the information and the informants identified two persons and thereafter they apprehended them. The unknown persons i.e., Lokesh @ Nepali and Anudeep @ Anu were apprehended at about 9.45 p.m. on 25.08.2013 and produced before the Investigating officer. Very interestingly, Ex.P9-Report submitted by PW.11 depicts that himself and the other staffs i.e., PC.9033, PC.8678 and PC.8979 were appointed by the Investigating Officer to trace out the accused persons. Accordingly, after collecting information, they went near playground of Sriranga Vidyanikethana school at about 9.00 p.m. and apprehended accused persons and produced them before the Investigating Officer at about 9:45 p.m. along with the report for further action.

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According to the learned Additional SPP, the accused persons were arrested and produced before the Investigating Officer as per Ex.P9. Even assuming that the accused persons were arrested and produced before the Investigating Officer at 9.45 p.m. on 25.08.2013, very interestingly the Investigating Officer admitted in the cross-examination that he is not aware of the identity of accused No.1 and he has not given any information about identity of accused No.1 to PW.3, PW.4, PW.11, CWs.20 to 22, but directed them to apprehend the accused persons and produce before him. Accordingly, accused Nos.1 and 2 were apprehended by PW.11 and other staff and produced before him on 25.08.2013 at 9:30 a.m. in the police station. Thereafter, he conducted personal search of the accused persons. The evidence of PW.11, Ex.P9-Report submitted by PW.11 and evidence of PW.17, the Investigating Officer with regard to the identity of the accused is doubtful. When there are two views are possible on the evidence adduced, one towards the guilt of the accused and other towards his innocence, the view which is favourable to the accused should be adopted as per the golden rule of the criminal jurisprudence.

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The materials on record i.e., the evidence of PWs.1, 2,

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3, 4, 9 and 10, who are said to be the eye-witnesses to the incident and the evidence of PW.14-Doctor, PW.11-Head Constable, PW-17Investigating Officer clearly depicts that there are so many material omissions and contradictions in the evidence of the prosecution witnesses. The entire case of the prosecution appears to be tainted. When such discrepancy is found which is sufficient to shake the case made out by the prosecution, it is not safe to convict the accused.

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On meticulous reading of the evidence of aforesaid prosecution witnesses, serious contradictions are noticed and the witnesses are not worthy of believing. Though learned Additional SPP submits that PW.4 in categorical terms has stated that either him or the deceased has not consumed alcohol, the fact remains that after the dinner, they went to the house is not in dispute and according to them, some unknown persons quarreled with them. In the quarrel, two unknown persons caught hold of the deceased and one unknown person stabbed the deceased. Admittedly, they have not disclosed the identity of the accused persons at the time of

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lodging the complaint or at the time of recording the statements. They have only identified the accused persons for first time in the police station and before the court. The identity of the accused persons by the prosecution witnesses is based on the source of the police information and admittedly no Test Identification Parade was conducted. Thereby, they have not established the case of the prosecution beyond reasonable doubt. The learned Sessions Judge has not considered these aspects of the matter in proper prospective. Thereby, erroneously convicted the accused persons. It is not disputed that the accused persons are languishing in jail for more than 8½ years.

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It is also not in dispute that the learned Sessions Judge while convicting accused Nos.1 and 3 under the provisions of Section 302 read with Section 34 of IPC, recorded a categorical finding that it is important to note that at Ex.P8, the IMEI number of the cell phone is mentioned as 864056010939012 and 864056010939020. However, to corroborate the contention of the prosecution that the said cell phone at MO.4 belongs to deceasedBasavaraju, the prosecution has not placed any iota of evidence.

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Suffice it to say, evidence of PW.17 discloses that while he seized MO.4, it was found with its SIM card. However, during crossexamination, PW.17 categorically admits that MO.4 is now not found with SIM card. Therefore, without placing any relevant documentary evidence to hold that the deceased was a registered customer of MO.4., certainly, it cannot be held that cell phone-MO.4 belonged to the deceased-Basavaraju. Thereby, the prosecution failed to place any iota of documentary evidence to show that SIM numbers as well as cell phone belonged to the deceasedBasavaraju. Thereby, the case of the prosecution that PW.17 has seized MO.4 under Ex.P8 on the basis of voluntary statement at Ex.P16, said to have been given by accused No.2 cannot be believed at all and accordingly learned Sessions Judge recorded a finding that the prosecution failed to prove beyond reasonable doubt that deceased collapsed on the ground and accused No.2 robbed his cell phone from his shirt pocket, thereby they committed an offence punishable under Section 392 read with Section 34 of IPC. Admittedly, acquitting the accused persons under Section 392 read with Section 34 of IPC is not challenged by the prosecution. When the recovery of the phone from accused No.2 and ownership

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of SIM card and phone belonging to deceased-Basavaraju from the accused is not proved and identity of the accused persons is not established either at the time of complaint or before the police when the statements were recorded, it is clear case that the prosecution has not proved the guilt of the accused beyond reasonable doubt and the accused are to be acquitted by extending the benefit of doubt. Thereby, the judgment of conviction and order of sentence passed by the trial Court cannot be sustained as this is only on the basis of presumption and assumption, which is impermissible under law. Thereby, the learned Sessions Judge was not justified in convicting accused Nos.1 and 3 for the alleged offence on the basis of the inconsistent evidence led by the prosecution. The same cannot be sustained for the reasons stated above. Accordingly, the above point is held in the 'affirmative', holding that the appellants- accused Nos.1 and 3 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court and to hold that the trial Court is not justified in convicting accused Nos.1 and 3 for the offence punishable under Section 302 read with Section 34 of IPC.

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For the reasons stated above, we pass the following:

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ORDER

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(i) Criminal Appeal No.1850/2017 filed by accused No.1 and Criminal Appeal No.1578/2017 filed by accused No.3, are hereby allowed.

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(ii) The impugned judgment of conviction and order of sentence dated 07.04.2017 made in S.C.No.317/2014 on the file of LXV Additional City Civil and Sessions Judge, Bengaluru (CCH-66), convicting and sentencing accused Nos.1 and 3 for the offence punishable under Section 302 read with Section 34 of IPC, is hereby set-aside.

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