Allahabad High Court
Arjun vs State on 4 February, 2021
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 16.12.2020 Delivered on : 04.02.2021
CRIMINAL APPEAL No. 3076 of 1982
Arjun --------Appellant
Vs
State of Uttar Pradesh -------Respondent
_______________________________________________________
For Appellant : Sri M.P. Yadav
For Respondent/State : Sri Pramod Kumar Singh, AGA _______________________________________________________
Hon'ble Raj Beer Singh, J.
1. This criminal appeal has been preferred against the judgment and order 02.12.1982, passed by the learned Special Judge, Hamirpur in Session Trial No. 214 of 1981 (State vs. Arjun Singh), under Sections 392 and 397 IPC, P.S. Charkhari, Hamirpur, whereby the accused-appellant Arjun has been convicted under Section 392 IPC and sentenced to 2 years rigorous imprisonment with fine of Rs. 100/- under Section 392 IPC. In default of payment of fine, the appellant has to further undergo 15 days simple imprisonment.
2. According to the prosecution version, the complainant Surya Bali Dwivedi and one Subhash Trivedi were working as lecturers in Government College Charkhari and they were residing in a rented room at Charkhari. On 05.02.1980 at 8:00 PM while they were taking dinner, someone knocked the door and after opening the gate they saw that two youths were standing there and they stated that they have come to ask about some questions of examination and thereafter both the said youths entered into room. Both were having country made pistol and one of them took clothes of complainant and said Subhash Trivedi in a suitcase and they also took away other movable articles like transistor, two wrist watches and some cash by threatening the complainant and his friend.
3. The complainant Suryabali Dwivedi reported the matter to police by submitting a tahreer Ex. Ka-5 and on that basis this case was registered on 05.02.1980 at 9:15 P.M vide first information report exhibit ka-2 under section 392 IPC against unknown persons.
4. Perusal of record further shows that on 23.02.1980, the appellant Arjun was apprehended by police and an illicit country made pistol was recovered from him and thus, a case was registered against him under Section 25 Arms Act and that appellant has confessed his involvement in the robbery of this case. Accordingly, he was arrested in this case and that on 11.04.1980 he was identified by the complainant (PW 2 Suryabali Diwedi) and PW 6 Subhas Triwedi in test identification parade. After completion of investigation, the appellant was charge-sheeted for offence under sections 392, 397 IPC.
5. The trial Court framed charges under Section 397 IPC against the applicant.
6. In order to bring home guilt of accused-appellant, prosecution has examined six witnesses. The accused-appellant was examined under Section 313 Cr.P.C., wherein he has denied the prosecution version and claimed that he was a student of I.T.I. and he used to remain with president of student union of Government college and that some hot talking has taken place with complainant and thereafter he was falsely implicated in this case. However, no evidence led in defence.
7. Heard learned counsel for the appellant and learned A.G.A. for the State.
8. Before proceeding further, it would be appropriate to have a glance on prosecution evidence. PW-2 Suryabali Dwivedi, who is complainant of the case, has stated that he was working as a lecturer in government college Charkhari and that he and one of his colleague Subhash Trivedi used to reside in one rented room. On 05.02.1980, at 8:00 PM, while they were busy in dinner some one knocked the door of the room and as Subhash Trivedi opened the door, they saw that two youths were standing there and by stating that they have to ask about some questions of examination, both the said youths entered into the room and they were having country made pistols in their hands. They threatened the complainant and his colleague and took their clothes in suitcase and they also took transistor, wrist watches of complainant and his colleague and they tied the hands of complainant and his colleague with string and took away the above stated articles. After that PW-2 Suryabali Dwivedi has reported the matter to police by submitting tehreer Ex. ka-5.
9. PW-6 Subhash Triwedi has also reiterated the said version and stated that on 05.02.1980 at about 8:00 PM, two miscreants came and knocked the door of their room and thereafter entered into the room and that they both were having country made pistols. PW-6 stated that said miscreants have taken away their clothes. They have also taken away two wrist watches and one transistor and Rs. 375/- of PW-2 Suryabali Diwedi and Rs. 300/- of PW 6 and they have tied their hands.
10. PW-1 Head constable Ram Pyare Tiwari has recorded the first information report and has also proved site plan of the spot and charge-sheet by way of secondary evidence.
11. PW-3 S.I. Babu Singh Sengar has conducted investigation and stated that accused was arrested on 23.02.1980 in a case under Arms Act and he has confessed his involvement in the incident of instant case and later on his test identification parade was conducted.
12. PW-4 Head Constable Dwarika Prasad is a witness of arrest of accused-appellant.
13. Learned counsel for the accused-appellant has mainly argued that accused-appellant is not named in first information report and that as per prosecution version, he was apprehended on 23.02.1980 after 18 days of the incident, in a case under section 25 Arms Act by police but his test identification parade was conducted on 11.04.1980 ie after about 48 days of his arrest and after about 65 days of the 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 appellant. No recovery has been effected from the accused appellant. It was also pointed out that accused-appellant has already been acquitted in case under section 25 Arms Act and thus, his arrest becomes fully doubtful. Learned counsel further submitted that accused-appellant was known to the informant and witness since before the incident as PW 2 Suryabali Diwedi has accepted in his cross-examination that he seen the accused-appellant for several times in company of one Narayan Singh, President of student union but the first information report was lodged against unknown persons, which indicates that the informant and alleged witness have not recognized the miscreants during incident and later on accused-appellant was 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.
14. Per-contra, learned State Counsel argued that there is evidence that at the time of alleged incident, there was was sufficient light to recognise the faces of miscreants. Facts of incident show there was sufficient opportunity to recognise the miscreants. The accused-appellant was identified by the witnesses during test identification parade. It was submitted that conviction of accused appellant is based on evidence and it calls for no interference.
15. At the outset, it may be mentioned that alleged incident took place at 08.00 PM and that no one was named in FIR and that no recovery has been effected from the accused-appellant. The conviction of accused appellant is solely based on the identification of accused-appellant. As per prosecution version, alleged incident of robbery took place on 05.02.1980 at 08.00 PM and that accused-appellant was arrested in an another case under 25 Arms Act on 23.02.1980 and that after his arrest he has admitted his involvement in the said incident of robbery. Thereafter, the test identification parade of accused-appellant was conducted on 11.04.1980. Thus, the test identification parade of accused-appellant was conducted after about 65 days of the incident. It is also clear that even after arrest of the accused-appellant, his test identification parade was conducted after about 48 days. There is absolutely no explanation as to why this long delay in conducting the test identification parade took place.
16. 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.
17. In Lal Singh and others Vs. State of U.P. 2003 (12) SCC 554, the Hon'ble Apex Court dealt with the value or weightage to be attached to Test Identification Parade and the effect of delay in holding such Test Identification Parade and held 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.
18. 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. It was observed by the court that 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.
19. 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. 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.
20. 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."
21. 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.
22. 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 trial cannot be safely accepted by the court for awarding conviction to the accused.
23. 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."
24. In the instant case, as noticed earlier, the alleged incident of robbery took place on 05.02.1980 and thereafter the accused-appellant was arrested on 23.02.1980 in an another case under Sections 25 Arms Act, wherein he is alleged to have disclosed his involvement in the said incident of robbery. However, the test identification parade of accused-appellant was conducted on 11.04.1980, that is after about 65 days of the incident and 48 days after his arrest. Prosecution has not offered any explanation, what so ever, regarding this long delay in holding the Test Identification Parade of accused-appellant. The investigating officer of the case has not offered any explanation about this long delay. In fact there is absolutely no explanation as to why this long delay took place in conducting test identification parade took place.
25. 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 48 days in holding the test identification parade of accused-appellant after his arrest 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 miscreants were mentioned. Only it was mentioned that one of the miscreant was 25 years old 'sawla' skinned youth and that another miscreant was of long height 25 years old 'gehua' skinned youth. It is a too general description to identify a person after about two months of incident. Further, alleged incident took place at 08.00 PM in early February and even if there was some light it appears doubtful that on account of such common features the witnesses were able to identify accused-appellant after more then two months of incident in the identification parade. It may also be noticed that after his arrest, during the above stated period of 48 days, the accused appellant might have been produced before the court of Magistrate for several times for extension of his judicial remand but there is no evidence that whenever he was taken to court or produced before the court for extension of judicial remand, he was kept 'baaparda'. The only evidence in this regard is that after the arrest the accused-appellant was kept 'baaparda' in police lockup and was sent to jail in same condition. All these facts give rise to a serious doubt about the genuineness of the identification parade of the accused-appellant.
26. Further, the accused-appellant has taken specific plea that he was known to the informant and the witness since before the incident. Accused-appellant in his statement under Section 313 Cr.P.C., has stated that he was a student of ITI and he used to remain with one Narayan Singh, who was President of the student union of the Government college. PW 2 Suryabali Diwedi has accepted in his cross-examination that he has seen the accused-appellant with said Narayan Singh, who was known to him since before the incident. Considering entire evidence, this possibility can not be ruled out that accused-appellant was known to the informant and other witness since before the incident. Further, as stated earlier, in the first information report, no specific descriptive particulars of alleged miscreants / robbers were mentioned. Only it was mentioned that both the miscreants were aged about 25 years and one of them was 'sawla' and another was 'gehua' skinned. As stated earlier, it is a too general description to identify a person after long period of several months of the incident.
27. 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. 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''.
28. 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.
29. 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-appellant or note their specific features on spot because there was no occasion for the witnesses to fix themselves in the memory as incident took place suddenly and in night and that this possibility can not be ruled out that accused-appellant was known to witnesses since before the incident and that there is long and undue delay in holding the identification parade and thus, the identification made by the witnesses in the court cannot be found free from doubt. There is no evidence that accused-appellant has 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 appellant 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 view of these facts, the identification of accused-appellant in alleged test identification parade becomes thoroughly doubtful. Since the identification in test identification parade is doubtful, thus the alleged dock identification of accused-appellant also loses its credibility.
30. 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 his arrest, the accused-appellant was kept ''baaparda'' whenever he was produced in Court before his test identification report and the possibility that accused-appellant was known to witnesses since before the incident, render the evidence of the said witnesses regarding identification of accused-appellant thoroughly doubtful and unreliable.
31. One important aspect of the matter is that accused-appellant was arrested on 23.02.1980 in a case under 25 Arms Act and thereafter, he is alleged to have disclosed about his involvement in the alleged incident of robbery but the accused-appellant has already been acquitted in that case. Further, no recovery has been effected from appellant.
32. 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 the accused-appellant and that it is also thoroughly doubtful whether the accused-appellant has 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 his alleged identification.
33. Resultantly, the accused-appellant Arjun deserves benefit of doubt. Accordingly, impugned judgment and order of conviction and sentence is set aside and accused appellant Arjun is acquitted of the charge levelled against him. Accused-appellant is on bail, his personal bond is cancelled and sureties discharged.
34. Appeal is allowed.
35. Office is directed to transmit the record of trial Court as well as copy of this judgment to the court below.
Date: 04.02.2021 A. Tripathi (Raj Beer Singh, J)