Allahabad High Court
Ram Shankar vs State Of U.P. on 6 August, 2020
Equivalent citations: AIRONLINE 2020 ALL 1737
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. 76 Reserved on 13.07.2020
Delivered on 06.08.2020
Criminal Appeal No. 14 of 1987
1. Ram Shanker
2. Mahesh
3. Bodhu Singh
4. Chhotey Lal
5. Ram Babu Singh
........... Appellants
Vs
State of U.P. ............. Respondent
For Appellants : Sri Vindhyachal Singh, Sri P.S. Yadav
For Respondent : Sri Amit Kumar Singh, AGA
Hon'ble Raj Beer Singh, J.
1. This Criminal Appeal has been preferred against judgment dated 19.12.1986 and order dated 20.12.1986 passed in Session Trial No. 194 of 1979 (State Vs. Ram Shanker and 4 others), Crime No. 65/1979, under Sections 395 of IPC, Police Station Shivrajpur, District Kanpur Dehat, whereby accused-appellants Ram Shanker, Mahesh, Bodhu, Chhotey Lal and Ram Babu were convicted under section 395 of IPC and sentenced to five years rigorous imprisonment.
2. During pendency of this appeal, appellant no. 4 Chhotey Lal has passed away thus, this appeal qua appellant No. 4 was abated.
3. Prosecution version is that on the intervening night of 22/23.03.1979, informant / PW-1 Kailash Nath was sleeping under thatch roof of his house whereas women of his family were sleeping inside the house and there was light of lantern. At around midnight, 6-7 bandits, armed with pistols, hockey and sticks, intruded into his house through the roof and opened the main gate of the house. Out of them, two bandits over-powered informant Kailash Nath and his father whereas other bandits committed dacoity in his house. Hearing noise, many villagers including Ramesh Chandra, Bhagwan Deen, Bhagwat, Udai Narayan and Vansh Gopal came and challenged the miscreants. Bhagwan Deen set ''sirsori', lying near house of informant, to fire and thereby in the light of the same, they have seen the said bandits. After committing dacoity at the house of informant, said bandits also committed dacoity at the house of his neighbour Devi Prasad and Heera Lal. It was alleged that the said miscreants have robbed various jewellery items, cash and clothes and after committing dacoity, all the miscreants succeeded in running away from there.
4. In the morning, the informant Kailash Nath reported the matter to police by submitting tehrir exhibit Ka-1. and consequently, the case was registered on 23.07.1979 at 09:45 hrs against 6-7 unknown persons. During investigation, one lantern, produced by witness Hari Lal was taken into possession vide seizure memo exhibit Ka-7. One slipper and 'gamchha', found at the spot were seized vide memo exhibit ka-8. The lantern produced by informant and witness Shyam Babu were seized vide memo exhibit Ka-9 and Ka-10.
5. In the alleged incident, witness Devi Prasad and his son Shyambabu have sustained injuries and they were sent for medical examination. Injured Devi Prasad was examined vide MLC exhibit Ka-4 and he has sustained following injuries.
(i) Lacerated wound 2 cm x 1/2 cm x skindeep on middle of head about 12 cm from left ear.
(ii) Lacerated wound 4 cm x 1/2 cm x skin deep on left side forehead 3.5 cm above the left eye brow.
(iii) Abraded contusion on front side of chest left side about 10 cm x 1 cm, 3 cm below the clavicle bone of left side.
(iv) Contusion 6 cm x 2 cm on left shoulder joint.
(v) Abrasion 2 cm x 1.5 cm right side of 6 cm above right nipple. (vi) Contusion 22 cm x 2.5 cm on epigastrium area of abdomen 7 cm above the umbilicus.
(vii) Abraded contusion 5 cm x 3 cm on backside of body in centre on 6th thoracic vertebra.
(viii) Contusion 18 cm x 4 cm on right side back 4.5 cm above the right iliac crest.
(ix) Abraded contusion 7 cm x 3 cm on back left side just above the left iliac crest.
(x) Traumatic swelling over upper 1/3 of forearm right side advised x-ray at UHM hospital Kanpur.
Injured Shyam Babu has sustained following injuries:-
(i) Abraded contusion 2 cm x 1 cm on left side of forehead over 1 cm left eye brow.
(ii) Complaint of pain and tenderness over right gluteal region (Hip region) but no swelling detected.
6. It is further the case of prosecution that on the night of 27/28.04.1979, accused-appellants Ram Shanker, Mahesh, Bodhu, Chhotey Lal and Ram Babu and two other persons were apprehended near village Jaitpur by the police of Police Station Shivli, while these accused-appellants were planning to commit dacoity and a case was registered against them under Section 399/402 of IPC and Section 25 of Arms Act. After their arrest in that case, they have confessed before the police that they were involved in the alleged incident of dacoity, committed at house of informant Kailash Nath. The accused persons were produced in Court in ''baaparda' condition (in face covered condition). Their test identification parade was conducted in jail on 16.06.1979 by PW-6 Har Govind Sahai Mathur, Magistrate Kanpur. In the identification parade, witness Kailash has identified accused Bodhu, Chhotey Lal and Ram Babu correctly but he could not identify accused Mahesh, witness Devi Prasad has identified all the five accused persons correctly, witness Heera Lal has identified only accused Mahesh, witness Ramesh Chandra has identified only accused Rameshwar and Ram Babu, witness Bhagwan Deen has identified accused Ram Shanker, Bodhu and Ram Babu, witness Udai Narayan has identified Ram Shanker, Mahesh, Bodhu and Ram Babu and witness Vansh Gopal has identified accused Ram Shanker and Ram Babu vide identification memo exhibit Ka-7.
7. After completion of investigation, all the five accused persons were charge sheeted for offence under Section 395 of IPC.
8. Trial Court framed charge under Section 395 of IPC against all the five accused persons. In order to bring home guilt of accused appellants, prosecution has examined seven witnesses.
9. Accused persons were examined under Section 313 Cr.P.C. wherein they have denied the prosecution evidence and alleged that they were known to informant and witnesses since before the incident. Accused Ram Shanker has alleged that his agricultural land is adjoining to village Maharajpur and that he has got education in the village of informant. Accused Mahesh Chandra has alleged that his land is situated at Sukhkha Nivada and that boundary of village Sukhkha Nivada and Manoh are adjoining. Accused appellant Bodhu Singh alleged that he runs a flour mill (aata chakki) and informant and witnesses used to come there for getting flour.
10. In their defence, accused persons have filed certified copy of judgment passed in Session Trial No. 161/1979 (State Vs. Ram Shanker and others), under section 399/402 IPC, copy of order passed in Misc. Case No. 2/1981 under Section 411 IPC, statements of witnesses recorded in session trial No. 161/1979 and all these documents have been exhibited as Kha-1 to Kha-5.
11. After hearing and analysing the evidence on record, all the four accused-appellants as well as accused Chhote Lal (since dead) were convicted under section 395 of IPC vide impugned judgment and order dated 19/20.12.1986 and sentenced as stated in opening part of this judgment.
12. Being aggrieved by the impugned judgment and order, accused-appellants have preferred present criminal appeal.
13. Heard Sri Vindhyachal Singh, learned counsel for appellant No. 1 and Sri P.S. Yadav, learned counsel for appellant Nos. 2, 3 and 5 and Sri Amit Kumar Singh, learned A.G.A. for the State and perused the record.
14. In evidence, PW-1 Kailash Nath has stated that on the night of incident, he was sleeping under the thatch roof of his house and there was light of lantern. After hearing noise of his father, he raised an alarm and called villagers. Bhagwan Deen has put ''sirsori', lying outside his house, at fire and thereby there became sufficient light. The bandits went away after robbing jewellery, clothes and cash from his house. PW-1 Kailash Nath further stated that he has recognized the miscreants in the light of torch, fire and lantern. He has also identified the accused persons in the Court during his statement in court.
15. PW-2 Devi Prasad has stated that a dacoity was committed at the house of Kailash and others by 10-12 dacoits. He has recognised all the five accused persons in the light of lantern and torch. He has identified all the five accused-appellants during his statement in court.
16. PW-3 Udai Narayan has stated that about four and a half year back, a dacoity was committed at house of Kailash Nath in the midnight. Hearing noise of Kailash, he had reached near door of Kailash and he has put the ''sirsori' lying outside his home at fire and that there was also light of lantern. He has identified four accused persons during his statement and that he has also identified them in test identification parade.
17. PW-4 Constable Rajju Prasad has stated that on 29.07.1979 he along with other constables has taken the accused persons to jail and during that period, their faces were kept coverned.
18. PW-5 Chhotey Lal Sharma has stated that on the night of 27/28.4.1979, he has apprehended the accused persons, however, his statement could not be completed as this witness could not appear for further examination-in-chief and cross examination, thus, his mere part examination in chief cannot be read in evidence.
19. PW-6 Har Govind Sahai Mathur, Special Executive Magistrate has conducted test identification parade in District Jail.
20. PW-7 Constable Triloki Nath is a witness of arrest of accused-appellants.
21. Learned counsel for the accused-appellants has mainly argued that accused-appellants are not named in first information report and that as per prosecution version, they were apprehended after 35 days of the incident, in case under Sections 399/402 IPC by police of Police Station Shivli, Kanpur and that their test identification parade was conducted on 16.06.1979, ie after about 49 days of their arrest and after about 82 days of incident, and thus, this long delay in test identification parade has rendered the evidence regarding test identification parade unreliable. It was stated that even otherwise mere test identification parade is not sufficient to base conviction of accused appellants. No recovery has been effected from any of the accused appellant. It was also pointed out that accused-appellants have already been acquitted in case under Section 399/ 402 IPC and section 25 Arms Act vide judgement and order dated 26.03.1981 passed by First Assistant Sessions Judge, Kanpur and thus, their arrest becomes fully doubtful. In this connection, it was also stated that public witnesses, examined in Session Trial No. 161/1979, have denied the prosecution version regarding arrest of accused appellants. Learned counsel further submitted that accused persons were known to the informant and witnesses since before the incident as they were residents of nearby villages and that accused persons have taken specific plea in this regard but the FIR was lodged against unknown persons, which indicates that the informant and alleged witnesses have not recognized any of the miscreant during incident and later on accused-appellants were falsely implicated. In support of his contentions, learned counsel for the appellants has relied the case of Kamlesh Vs. State of U.P. [2018 (102) ACC 199]. It was submitted that trial court has committed grave error by convicting the accused-appellants merely on the basis of test identification parade, which was thoroughly unreliable.
22. Per-contra, learned State Counsel argued that there is clear evidence that at the time of alleged incident, there was light of lantern and that ''sirsori', lying outside the house of informant, was also put at fire and thus, there was sufficient light to recognise the faces of miscreants. In alleged incident, PW-2 Devi Prasad has sustained several injuries and thus, there was sufficient opportunity to recognise the miscreants. All the accused-appellants were identified during test identification parade, which has been duly proved by PW-6 Har Govind Sahai Mathur. It was submitted that conviction of accused appellants is based on evidence and it calls for no interference.
23. At the outset, it may be mentioned that alleged incident took place in mid-night and that no one was named in FIR and that no recovery has been effected from any of the accused-appellant. The conviction of accused appellants is solely based on the identification of accused-appellants.
As per prosecution, alleged incident of dacoity took place on the night of 22/23.03.1979 and that accused-appellants were arrested in an another case under Sections 399/ 402 IPC in the intervening night of 27/28.04.1979 and that after their arrest they have admitted their involvement in the said incident of dacoity. Thereafter, the test identification parade of accused-appellants was conducted on 16.06.1979. Thus, their test identification parade was conducted after about 82 days of the incident. It is also clear that even after arrest of the accused-appellants, their test identification parade was conducted after about 49 days. There is absolutely no explanation as to why this long delay in conducting the test identification parade took place.
24. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of the Hon'ble Apex Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. The identification parades belong to the stage of investigation, and though there is no provision in the Criminal Procedure Code which obliges the investigating agency to hold a test identification parade, but it is quite desirable that the Test Identification Parade should be conducted as early as possible, however, at the same time, the very purpose of conducting Test Identification Parade during the investigation is for the satisfaction of the investigating officer that the suspect is the real culprit, but the substantive evidence is the identification of the accused in the Court. There is no hard and fast rule that in every case, where the Test Identification Parade was conducted belatedly, the identification of the accused by the victim should be discarded. (Budhsen and another vs. State of U.P. : AIR 1970 SC 1321). If the delay in holding the Test Identification Parade is duly explained or where the delay had occurred due to reasons beyond the control of the investigation officer, then the delay in holding the Test Identification Parade may not be fatal. Thus, in nutshell, it can be said that in each and every case, the effect of delay in holding the Test Identification Parade has to be considered in the peculiar facts and circumstances of that case.
25. In Lal Singh and others Vs. State of U.P. 2003 (12) SCC 554, the Hon'ble Apex court in Paragraphs 28 and 43 dealt with the value or weightage to be attached to Test Identification Parade and the effect of delay in holding such Test Identification Parade. Said paragraphs are as under:-
"28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down. The court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the court must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the features of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case.
43, It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest- possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety."
26. In Soni vs. State of U.P. : (1982) 3 SCC 368, test identification parade was held after a lapse of 42 days from the date of arrest of the appellant. The delay in holding the test identification parade created a doubt in the genuineness thereof, apart from the fact that it may be difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. The Hon'ble Apex Court, therefore, held that if this evidence cannot be relied upon and there is no other evidence which can sustain the conviction of the appellant. In these circumstances the appellant was acquitted
27. In Subhash and another vs. State of U.P. : AIR 1987 SC 1222 the test identification parade was held three weeks after the arrest of the appellant and it was observed that there was a room for doubt as to whether the delay in holding the test identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. The Court also noticed that 4 months had elapsed between the date of occurrence and the date of holding of the test identification parade. The descriptive particulars of the appellant were not given when the report was lodged. But while deposing before the Sessions Judge, the witnesses had stated that the appellant was a tall person and had sallow complexion. It was observed that if on account of these features the witnesses were able to identify appellant at the identification parade, they would have certainly mentioned about them at the earliest point of time when his face was fresh in their memory. As the conviction of the appellant was based solely on the identification at the test identification parade, the Apex Court extended benefit of doubt to the appellant, while upholding the conviction of the co-accused. There being a delay in holding the test identification parade and in the absence of corroborative evidence, the Apex Court found it unsafe to uphold his conviction.
28. In Anil Kumar v. State of U.P. reported in (2003) 3 SCC 569 the Supreme Court has observed as under:
"9. ... It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reasoning is given why such a small delay would be fatal."
29. In Muthuswami v. State of Madras AIR 1954 SC 4, 1954 Cri LJ 236, where an identification parade was held about 2½ months after the occurrence, it it was held that it would not be safe to place reliance on the identification of the accused by the eyewitnesses.
30. In another case Mohd. Abdul Hafeez v. State of A.P. AIR 1983 SC 367 (1983) 1 SCC 143, it was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused.
31. Similarly the issue of delay weighed with the Hon'ble Supreme court in Musheer Khan vs. State of M.P.2010 (2) SCC 748 in discarding the evidence regarding test identification as under:
"8. Insofar as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29-11-2000, even though A-5 was arrested on 22-12- 2000. There is no explanation why his identification parade was held on 24- 1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or the High Court on such delayed TI parade for which there is no explanation by the prosecution."
32. In the instant case, as noticed earlier, the alleged incident of dacoity took place on the night of 22/23.03.1979 and thereafter the accused-appellants were arrested on the night of 27/28.04.1979 in an another case under Sections 399/ 402 IPC, wherein allegedly they have disclosed their involvement in the said incident of dacoity. However, their test identification parade of accused-appellants was conducted on 16.06.1979, that is after about 82 days of the incident and 49 days of their arrest. Prosecution has not offered any explanation, what so ever, regarding this long delay in holding the Test Identification Parade of accused-appellants. The investigating officer of the case has not been examined by the prosecution. In fact there is absolutely no explanation as to why this long delay took place in conducting test identification parade took place.
33. Considering the above stated legal position, in the peculiar facts and circumstances of the instant case, it can not be ruled out that the delay of seven weeks in holding the test identification parade of accused-appellants was in order to enable the identifying witnesses to see them in the police lock-up or in the jail premises and make a note of his features. Here it would be pertinent to mention that in the first information report, no specific descriptive features/ particulars of alleged dacoits were mentioned. Only it was mentioned that some bandits were of dusky complexion and some of wheatish. It is a too general description to identify a person after about three months of incident. Alleged incident took place in mid night. It appears doubtful that on account of such common features the witnesses were able to identify accused-appellants after three months of incident in the identification parade. It may also be noticed that after their arrest, during the above stated period of 49 days, the accused appellants might have been produced before the court of Magistrate for several times for extension of their judicial remand but there is no evidence that whenever they were taken into court or produced in court for extension of judicial remand, they were kept ''baaparda'. All these facts give rise to a serious doubt about the genuineness of the identification parade of the accused-appellants.
34. Further, the accused-appellants have taken specific pleas that they were known to the informant and the witnesses since before the incident. Accused-appellant Ram Shanker, in his statement under Section 313 Cr.P.C., stated that his agricultural land is just adjoining with the informant's village and that informant and witnesses were known to him since before the incident. Accused-appellant Mahesh has also taken a similar plea. Accused-appellant Bodhu Singh has stated that he runs a flour mill (aata chakki) and that informant and witnesses used to visit his flour grinder for grinding flour and thus, they know him since before the incident. Accused-appellant Ram Babu has alleged that his land is also adjoining to the land of informant. Here it may be stated that in his cross examination, PW-1 Kailash Nath has not denied the suggestion that accused-appellant Ram Shanker used to study in his village and that he has worked as tailor in his village. PW-1 has admitted that the village of accused-appellant Ram Shanker is situated at a distance of one kilometer from his village. In his cross-examination, PW-1 Kailash Nath has also stated that there are 3-4 flour grinder in village Abdulpur but he does not know whether one of the flour grinder is of accused Bodhu Singh. In his cross examination, PW-2 Devi Prasad has stated that he came to know about the villages of accused-appellants outside the gate of jail, while he has gone for test identification parade. This fact shows that he was already aware about the villages of accused-appellants before the test identification parade. PW-3 Uday Narayan has admitted in his cross-examination that accused-appellant Ram Shanker is a resident of Maharaj Nagar and that agricultural land of Maharaj Nagar is adjoining to the land of his village. PW-3 has also admitted that some time he used to visit village Sukha Navada but he is not aware whether land of father of accused Mahesh is situated in that village or not. It is apparent that all the accused-appellants were residents of nearby villages. Considering all these facts, this possibility cannot be ruled out that accused-appellants were known to the informant and other witnesses since before the incident. Further, as stated earlier, in the first information report, no specific descriptive particulars of alleged miscreants / dacoits were mentioned. Only it was mentioned that some bandits were of dusky complexion and some of wheatish. As stated earlier, it is a too general description to identify a person after long period of several months of the incident.
35. In case of Kamlesh V State of UP (supra), relied by learned counsel for appellants, the Division Bench of this court held as under:
''27. The evidence of identification is no exception to the definition of the word 'proof' in section 3 of the Evidence Act. The court should approach the evidence of identification with the reasonable doubts of an intelligent person and accept it only if those doubts were removed. In order to remove these doubts, the touchstone to be adopted could be (i) fair, if not good, opportunity of the witness for observation, (ii) reasonable time within which the identification was made, (iii) reliable power of observation of the witness, (iv) his credibility, and (v) the fact whether the witness got any opportunity to identify the accused at the time of incident and also after arrest of the accused. The crucial requirement would be the satisfaction of the court on the acceptability of the identification.
28. The condition precedent for accepting the evidence of identification should be fair and beyond approach to secure that it has to be ensured that prior to the test identification that suspect was not shown to the identity witness and identification was held in manner stipulated by the Criminal Manual. When the learned trial court itself has observed that the miscreants were shown to the witnesses because all the three miscreants and witnesses were present in the police station on that date, then this possibility cannot be ruled out that this appellant was also shown to the witnesses in advance to the test identification parade. The appellant has clearly stated in his statement recorded under Section 313 Cr.P.C. that police men had taken his photograph from his mother, which was shown to the witnesses and on that basis he was identified by the witnesses.
29. When a witness identifies an accused in court, court has to appreciate the evidence in the light of its intrinsic worth, other evidence, circumstances probabilities.30. If the witness knew any miscreant, obviously it is a matter of recognition, if not, it is a matter of identification. Recognition of a familiar person is certainly more reliable than identification of stranger. When a stranger witness identifies an accused in court, the court, by way of caution or prudence may seek same assurance before accepting the identification as correct. This assurance may be available from other sources and circumstances.
30. When the persons are known, identification is possible from the physique, gesture of movement, manner of walking etc. and gesticulating and special features of a person like the physical attributes; in such cases even where a light is dim, known persons can be successfully identified as was held in State of U.P. Vs. Babu, AIR 2003 SC 3408. But here this is not a case because no miscreant is known to any of the witnesses, no source of light has been proved, then no question arises to identify any of the miscreant on the spot by any of the witness. It is also proved that occurrence had taken place during early hours of the day, but there was darkness and only dim light of the trucks were present. In our opinion this was not sufficient for any person to identify and recognize any person and have their phiz in their memory for such a long time. It is also very important to note here that when miscreants came on the spot, they immediately started beating the persons present there. In that circumstance all these witnesses must have been in a state of daze as they were themselves one of the victims and father of one of the victim was shot dead on the spot. In such circumstances it was not possible for any of the witness to identify any miscreant and to remember phiz for such a long period. In these circumstances, in our opinion it would not be reasonable and proper to accept the evidence of identification that recorded the conviction on that basis''.
36. In case of Budhsen and another vs. State of U.P. : AIR 1970 SC 1321, the prosecution case depended upon the identification of the appellants and this identification was founded solely on test identification parade. The Apex Court found that the High Court had not correctly appreciated the evidentiary value of these parades though they had treated it as the primary evidence in support of the prosecution case. It was observed that the High Court seems to have proceeded on the erroneous legal assumption that it was a substantive piece of evidence and that on the basis of that evidence alone the conviction could be sustained. The Court also ignored important evidence on the record in regard to the manner in which the test identification parades were held suggesting that they were held more or less in a mechanical way without the necessary precautions being taken to eliminate unfairness. It was observed that this was clearly an erroneous way of dealing with the test identification parades and had caused failure of justice. In these circumstances that the Apex Court set aside the conviction of the appellants in that case, which was based solely on the identification of the appellants in a test identification parade.
37. In the instant case after careful consideration of the evidence and attending facts and circumstances of case, it appears that the witnesses had no fair opportunity to see the accused-persons or note their special features on spot because there was no occasion for the witnesses to fix themselves in the memory as incident took place suddenly and in the mid of night and that this possibility can not be ruled out that accused-appellants were known to witnesses since before the incident, and thus, the identification made by the witnesses in the court cannot be found free from doubt. There is no evidence that accused-appellants have any special and outstanding feature which enabled the witnesses to carefully mark the visages of the appellants so that witnesses could identify him even after a long gap. Only by identifying the appellants in TIP and in court would not be sufficient to convict the appellant as the value to be attached to identification evidence would depend on the facts of each case. The evidence of identification in order to carry conviction should ordinarily clarify as to how and under what circumstances the identifying witnesses came to pick out the particular accused person, details of the part which the accused played in the crime in question with reasonable particularity. In the instant case it would also be pertinent to state that no specific role was assigned to any of the accused-appellant. The injury report of PW 2 Devi Prasad has been filed on record but in his statement, he has not stated a single word that he sustained injury in the said incident nor he has assigned any specific role or weapon to any of the accused-appellant. In view of these facts, the identification of accused-appellants in alleged test identification parade becomes throughly doubtful. Since the identification in test identification parade is doubtful, thus the alleged dock identification of accused-appellants also loses its credibility.
38. No doubt the substantive evidence is the evidence of identification in court and that purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence, however in the instant case long and undue delay in holding the test identification parade, non mentioning of any specific features or identification marks of the miscreants in first information report, absence of evidence that after their arrest accused-appellants were kept ''baaparda'' whenever they were produced in Court before their test identification report and the possibility that accused-appellants were known to witnesses since before the incident, render the evidence of the said eye-witnesses regrding identification of accused-appellants throughly doubtful and unreliable.
39. One important aspect of the matter is that accused-appellants were arrested on the night of 27/28.04.1979 in a case under Section 399/ 402 of IPC and thereafter, they have disclosed about their involvement in the alleged incident of dacoity. All the accused-appellants have already been acquitted by judgment and order dated 26.03.1981 passed by Ist Asstt. Sessions Judge, Kanpur in session trial No. 161/1979. It would also be relevant to mention here that in that case public witness Kanhai, Gangaram and Radhey Shyam have stated that accused persons were not apprehended in their presence and they have denied the prosecution version regarding arrest of accused-appellants in said case under Section 399/ 402 of IPC. There is nothing to show that any appeal has been filed against the said judgement and order dated 26.03.1981 and thus, that judgment has become final. Accused persons have filed certified copy of judgment of session trial No. 161 of 1979, under Section 399 / 402 IPC as well as certified copies of statements of above stated witnesses of that case. Here it would be relevant to mention that PW-5 S.I. Chhotey Lal Sharma, who as per prosecution version, has arrested the accused persons, did not appear for his further examination-in-chief or for his cross examination and thus, his statement could not be considered in evidence. The cumulative effect of all this facts makes it thoroughly doubtful that the accused-appellants were arrested on the alleged date, time and place and in the manner alleged by prosecution. This factor further causes a serious dent in prosecution case.
40. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. Vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242]. In the instant case, considering entire evidence carefully it is quite manifest that the long delay in holding the test identification parade coupled with other infirmities and inconsistencies, as pointed out above, render the prosecution case doubtful. As stated earlier no recovery has been effected from possession of any of the accused-appellants and that it is also thoroughly doubtful whether the accused-appellants have been arrested in the manner as alleged by the prosecution. In view of all these facts, it would not be safe to base conviction of accused-appellants merely on the basis of their alleged identification.
41. All the five accused-appellants deserve benefit of doubt. Accordingly, impugned judgment and order of conviction and sentence is set aside and accused appellants Ram Shanker, Mahesh, Bodhu, Chhotey Lal and Ram Babu are acquitted of the charge levelled against them. Accused-appellants are stated on bail, their personal bonds are cancelled and sureties discharged.
42. Appeal allowed.
43. Office is directed to transmit the record of trial court as well as copy of this judgment to the court below.
Dated: 06.08.2020 Mohit Kushwaha (Raj Beer Singh, J)