Rajasthan High Court - Jodhpur
Shyam Singh vs . State Of Rajasthan & Anr. on 21 January, 2015
Bench: Gopal Krishan Vyas, Anupinder Singh Grewal
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:::
D.B. Criminal Appeal NO.390/2014
Shyam Singh Vs. State of Rajasthan & Anr.
Date of order: 21.01.2015
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE Mr. ANUPINDER SINGH GREWAL
Mr. Dharmendra Surana, for the appellant.
Mr. Vishnu Kachhawaha, PP
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BY THE COURT:[Hon'ble Mr. Justice G.K. Vyas,J.]
The instant cr. appeal has been filed under Section 372 Cr.P.C. by the complainant Shyam Singh S/o Gorakh Singh, resident of Bhatti Ki Bawri, Chopasani Road, Jodhpur to challenge the judgment dated 7.4.2014 passed by the Addl. Sessions Judge No.5, Jodhpur Metropolitan, Jodhpur in Sessions Case NO.24/2013 (State V. Raju Rao) by which the said court acquitted the accused respondent from the charge of offence under Section 302 IPC. As per the brief facts of the case an FIR was submitted by the petitioner complainant Shyam Singh (PW-3) on 8.4.2013 at about 5.15 a.m. at police station Chopasani Housing Board, Jodhpur in which 2 it was alleged by the complainant that in the night at 2.00 a.m. on 8.4.2013 one Innova Car bearing No.RJ19 TA 3978 was roaming here and there while regularly blowing the horn and when the deceased Pushpa Devi inquired about blowing the horn regularly by the driver, the driver of the said car got annoyed and hit the deceased Pushpa Devi to kill her.
As per the allegation in the FIR due to hit, Pushpa Devi fell down and became unconscious and the complainant who was there due to Ratijoga in the house of Ram sigh and other witnesses saw the incident by their eyes that driver of the above vehicle after hitting the deceased run away with the vehicle towards AIMs hospital road. Upon above FIR filed by Shyam Singh (PW-3), the regular investigation was conducted and after investigation challan was filed against the respondent no.2 Raju Rao S/o Dungar Ram in the court of Metropolitan Magistrate No.8, Jodhpur from where the case was committed to the Sessions Court and he transferred the case for trial to the court of Addl. Sessions Judge No.5, Jodhpur Metropolitan, Jodhpur where trial took place.
The learned trial court after recording the 3 statements of 13 prosecution witnesses including the alleged eye witnesses PW-3 Shyam Singh and PW-4 Himmat Singh, PW-5 Meema Devi, PW-6 Radha Devi, recorded the statements under Section 313 Cr.P.C. of the respondent no.2 and in defence, the respondent produced oral evidence of DW-1 Kailash Rao. The learned trial court after taking into consideration the entire facts of the case held that FIR was filed against unknown person and although prosecution has proved its case to the extent of hitting by car by unknown person but in absence of any identification parade, it cannot be said that the prosecution has proved its case against the respondent Raju Rao.
The learned counsel for the appellant submitted that the judgment impugned is contrary to law because the learned trial court relied upon minor contradiction in the statements of the prosecution witnesses. The learned trial court wrongly disbelieved them and further argued that PW-6 Radha Devi has specifically stated in her statement that accused has hit the vehicle to the deceased but the learned trial court did not consider her statement to be true, therefore, the judgment impugned may be quashed and the respondent 4 no.2 may be convicted.
After hearing the learned counsel for the appellant-complainant we have perused the finding given by the learned trial court in the judgment dated 7.4.2014 passed in Sessions Case No.24/2013 as well the evidence on record. Admittedly, the learned trial court held that prosecution has proved its case with regard to incident of hitting the deceased by Innova car but has failed to prove its case against the respondent that he was the person who hit the car or driver of the car because FIR was filed by the complainant against unknown person and in the investigation no identification parade was conducted by the Investigating officer, therefore, in absence of any identification parade or evidence of eye witnesses for identification of the accused, the respondent cannot be convicted for the alleged charge of murder. In our opinion, the finding given by the learned trial court for acquitting the respondent no.2 does not require any interference because as per the record of the case it is admitted position that no identification parade was conducted by the Investigating Officer to identify the accused in the investigation and FIR was filed against unknown person. 5
In the judgment rendered by the Hon'ble Supreme Court in the case of Dana Yadav @ Dahu & Ors. Vs. State of Bihar reported in AIR 2002 SC 3325, the Hon'ble Apex Court held that if an accused is not named in the FIR, his identification by the witnesses in the court should not be relied upon specifically when they did not disclose name of the accused before the police but to this general rules, there may be exceptions. In this case, when no specific allegation was leveled against the respondent no.2 in the FIR that he was driving the vehicle in question and hit the deceased Pushpa Devi then obviously it was the duty of the prosecution to prove its case beyond reasonable doubt by leading evidence of identification before the court that respondent was driving the vehicle in question. In para no.38 of the said judgment in the case of Dana Yadav (supra), the Hon'ble Supreme Court gave the following verdict which reads as under:
"38. In view of the law analysed above, we conclude thus:-
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.6
(b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-
called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test Identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.
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(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, 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 previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first Information report, his identification by witnesses in court, should 8 not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above."
We have considered the facts and evidence of present case in the light of aforesaid adjudication made by the Hon'ble Supreme Court. Admittedly, no identification parade was conducted by the Investigating Officer nor any reliable evidence is produced before the court who identify the respondent and said that at the time of occurrence the respondent was driver of the vehicle in question. In view of the above, the finding given by the learned trial court does not require any interference because there is no infirmity or illegality or perversity in the judgment impugned.
In view of the above, the instant appeal filed by the complainant is hereby dismissed. (ANUPINDER SINGH GREWAL),J. (GOPAL KRISHAN VYAS),J. cpgoyal/-