Madhya Pradesh High Court
Bhupendra Singh vs The State Of Madhya Pradesh on 20 February, 2018
CRR 531/2018 (Bhupendra Singh vs. State of MP) 1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Cr.R. No.531/2018
(Bhupendra Singh vs. State of MP)
Indore, Dated: 20/02/2018
Shri Nilesh Dave, learned counsel for the petitioner.
Shri Mukesh Parwal, learned Public Prosecutor for the
respondent-State.
With consent of the parties, matter is heard finally.
ORDER
This criminal revision filed under Section 397/401 of Cr.P.C., being aggrieved by order dated 24/01/2018 passed in Cr.A. No.409/17 by II Additional Sessions Judge, Ujjain, whereby the appellate Court has affirmed the order passed by the learned JMFC, Ujjain in Criminal Case No.8703/2011. The learned JMFC held the petitioner/applicant guilty for the offence under Sections 337 & 304-A of IPC and sentenced him to undergo 6 months and 2 years RI respectively with fine and default stipulation.
2. Facts in brief are that on 23/11/2011 at about 5.30 a.m. in the morning Jagdish and Anandilal were going to deliver milk by motorcycle No.M.P.13-MP-2904. Near Triveni bridge at village-Shakkarvasa turn, a Trala No.GJ-6W-9957 came on wrong side and dashed motorcycle of the complainant, resulting in death of Jagdish on the spot and injuries to Anandilal. . Driver was driven that Tralla rashly and negligently. Anandilal filed a report. A Crime No.919/11 under Sections 279, 304-A & 337 of IPC was registered at CRR 531/2018 (Bhupendra Singh vs. State of MP) 2 P.S. Neelganga. After completing investigation, the police filed charge-sheet.
3. After examining the witnesses, the trial Court reached on the conclusion that at the date, time and place of the incident the petitioner drove the Trala rashly and negligently and caused death of Jagdish and injuries to Anandilal and held guilty and punished him as stated in para-1 above.
4. The petitioner has not challenged the alleged accident, death of Jagdish or injuries caused to Anandilal. Even Tralla number is also not challenged. He has challenged only that he was not driving the Trala at the time of the incident and police has falsely implicated him in the crime.
5. I have examined the evidence of the prosecution before the trial Court only with the view to ascertain culpability of the present applicant.
6. Only one eyewitness who is injured also Anandilal (P.W.1) is examined by the prosecution before the trial Court. After giving details of accident he stated in his examination- in-chief that he had seen the driver of the truck and on re- examination by the Public Prosecutor in para-13 he has stated that the accused present in the Court was driving the Trala which caused accident. All other witnesses are either hearsay witnesses who came to know about the incident through Anandilal (P.W.1) or are witnesses of different stages of investigation which as stated above have not been challenged by the petitioner.
7. The one line statement of Anandilal is required to be examined closely. First and foremost important thing is that CRR 531/2018 (Bhupendra Singh vs. State of MP) 3 this is an improvement in the Court statement of Anandilal. As this fact has not been mentioned in the police statement Ex.D/1 of the witness. It is mentioned in the statement that at the time of the incident, the driver of the Trala managed to escape from the spot. No particulars or description of the driver have been given in the Merg intimation, FIR or police statement of Anandilal. Second equally important fact is that no test identification parade was organised or conducted by the prosecution during the investigation. The law is well settled that identification of an accused in a Court is a substantive evidence but identification at the time of trial for the first time is from its very nature is a weak type of evidence. Though want of evidence of earlier identification in a test identification parade does not affect the admissibility of the evidence of identification in Court but mere evidence of identification for the first time in court and that too by a solitary witness is not sufficient to sustain conviction of the accused. Such identification could not be accepted and acted upon unless sufficient circumstances are produced to corroborate such identification. What weight is to be attached to such identification is a matter of fact to be examined by the Court.
8. In Noorahammad Vs. State of Karnataka. AIR 2016 SC 679, the Hon'ble apex Court has stated that:-
"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."
CRR 531/2018 (Bhupendra Singh vs. State of MP) 4 Para 6 of the judgment reads thus:-
"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 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 the cases of Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa, Budhsen, Kanan v. State of Kerala, Mohanlal Gangaram Gehani v. State of Maharashtra, Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh, Jaspal Singh v. State of Punjab, Raju v. State of Maharashtra, Ronny, George v. State of Kerala, Rajesh Govind Jagesha, State of H.P. v. Lekh Raj and Ramanbhai Naranbhai Patel v. State of Gujarat (1999 AIR SCW 4770).
9. In Mahabir v. State of Delhi AIR 2008 SC 2343, the Hon'ble apex Court has held:-
CRR 531/2018 (Bhupendra Singh vs. State of MP) 5 "12. 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 this 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 evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly 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, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Administration (AIR 1958 SC 350); Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 1960 SC 1340); Budhsen and another v.
CRR 531/2018 (Bhupendra Singh vs. State of MP) 6 State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102)."
10. In Dana Yadav alias Dahu and Ors. v. State of Bihar (2002) 7 SCC 295 : (AIR 2002 SC 3225), the Hon'ble apex Court has elaborated upon the importance of test identification parade in great details. The relevant para Nos.6, 7 and 8 read thus:
"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 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 the cases of Kanta Prashad v. Delhi Admn., (AIR 1958 SC 350), Vaikuntam Chandrappa (AIR 1960 SC 1340), Budhsen (AIR 1970 SC 1321), Kanan v. State of Kerala (AIR 1979 SC 1127), Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC CRR 531/2018 (Bhupendra Singh vs. State of MP) 7
839), Bollavaram Pedda Narsi Reddy (AIR 1991 SC 1468), State of Maharashtra v. Sukhdev Singh (AIR 1992 SC 2100), Jaspal Singh v. State of Punjab (AIR 1997 SC 332), Raju v. State of Maharashtra (AIR 1998 SC 275), Ronny (AIR 1998 SC 1251), George v. State of Kerala (AIR 1998 SC 1376), Rajesh Govind Jagesha (AIR 2000 SC 160), State of H.P. v. Lekh Raj (AIR 1999 SC 3916) and Ramanbhai Naranbhai Patel v. State of Gujarat (1999 AIR SCW 4770).
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 sole basis for his conviction. In the case of Budhsen it was observed:
"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."
8. In the case of State of Maharashtra v. Sukhdev Singh 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 the case of Ronny 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 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 CRR 531/2018 (Bhupendra Singh vs. State of MP) 8 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 the case of Rajesh Govind Jagesha 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 the case of State of H.P. v. Lekh Raj it was observed (at SCC p. 253, para 3) (AIR 1999 SC 3916, Pp. 3917-18 Para 3) that :
"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".
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 the case of Ramanbhai Naranbhai Patel it was observed:
"It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless; whether the evidence deserves any credence or not would always depend on the facts CRR 531/2018 (Bhupendra Singh vs. State of MP) 9 and circumstances of each case."
The Court further observed:
"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".
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."
11. Coming back to the present case, there is nothing to show that the injured Anandilal ever had any opportunity to see the driver of the Trala in a fatal accident which happened in fraction of second and as is clear from the proved police statement of Anandilal (Ex.D/1) that at the time of the incident when Jagdish was fallen down and died on the spot and Anandilal sustained injuries, the driver managed to escape from the spot. Nothing on the record to show that Anandilal was ever having any opportunity to see and identify the driver. Accident happened on 23/11/2011 and statement of Anandilal was recorded almost after 2 years i.e. on 20th June, 2013. This also weaken value or credibility of the dock identification.
12. Considering the totality of the facts and the evidence, in view of the aforesaid position of law and the evidence available on record, it appears that the learned trial Court has not considered these facts in correct perspective. The CRR 531/2018 (Bhupendra Singh vs. State of MP) 10 evidence adduced by the prosecution falls short of reliability and unsafe to base conviction. The prosecution has failed to establish the guilt of the accused. Consequently, the petition of petitioner Bhupendra Singh is allowed. His conviction and sentence is hereby set-aside. He is acquitted from the charges under section 337 & 304-A of IPC. He is in jail. He shall be set at liberty forthwith if not required in any other case. Fine amount, if deposited, be returned to the petitioner.
13. Order of learned trial Court regarding disposal of property is hereby confirmed.
(Virender Singh) Judge soumya Digitally signed by Soumya Ranjan Dalai Date: 2018.02.23 18:28:26 +05'30'