Gauhati High Court
Pradip Chakma vs State Of Tripura on 30 March, 2007
Equivalent citations: 2007CRILJ2785, 2007(3)GLT218
JUDGMENT Mutum B.K. Singh, J.
1. The judgment dated 26-6-2000 passed by the learned Assistant Sessions Judge, North Tripura, Dharmanagar in S.T. 47(NT/D)/1999 convicting the appellant under Section 395 of the Indian Penal Code and sentencing him to undergo 8 years rigorous imprisonment with a fine of Rs. 5,000/- and in default of payment, to suffer rigorous imprisonment for 2 years, is under challenge in this appeal.
2. Heard Mr. A. K. Deb, learned Counsel appearing for the appellant and Mr. R.C. Debnath, learned Special P. P. for the State-respondent.
3. The prosecution story, in short, is that on 3-9-1990 at about 12.00 hours, one Sri Pratap Ranjan Dey, Kanangohu Cashier of the office of the Executive Engineer, PWD, Kanchanpur, Tripura North, lodged a written ejahar to the Officer-in-charge, Kanchanpur police station stating that on the same day i.e. 3-9-1990 at about 11.15 hours, he was returning by the Office vehicle after drawing a sum of Rs. 2,50,000/- from the Tripura Gramin Bank, Kanchanpur Branch, when the vehicle reached at Dasda-Kanchanpur Road, some miscreants numbering about 7/8 armed with guns attacked the vehicle in which he sustained bullet injuries and the miscreants looted the money from him and fled away. According to the informant, the miscreants appear to be belonging to Chakma Tribal community. On the basis of the said report, a case being Kanchanpur P.S. Case No. 1(9)90 under Section 395/397, Indian Penal Code and Section 27, Arms Act was registered. After investigation, the Investigating Officer submitted charge-sheet dated 22-1-1992 against 10 (ten) persons and out of them 5 accused persons were sent up for trial and remaining 5 persons were shown as absconders. Subsequently, only 4 accused persons, namely, Pradip Chakma, Suraj Bijoy Chakma, Amalendu Chakma and Niranjan Reang faced the trial. Out of the said 4 accused persons, the learned trial Court acquitted 3 accused persons during the course of hearing under Section 232 of the Code of Criminal Procedure. Thereafter, the trial was proceeded with only against the present appellant and convicted him for the offence punishable under Section 395 of the Indian Penal Code.
4. That, during the course of trail 17 witnesses were produced and examined on behalf of the prosecution and the case of the appellant was the total denial of the charge levelled against him.
5. That, the learned Counsel appearing for the appellant attacked the impugned judgment mainly on the ground that the conviction was based solely on the basis of the test identification parade which according to the learned Counsel, was not conducted in accordance with law and as such the impugned judgment is not sustainable and liable to be quashed. The second point of argument advanced by the learned Counsel is that the conviction of the appellant under Section 395 of the Indian Penal Code is also not sustainable on the ground that out of the 5 accused persons against whom the trial was held, 4 accused persons were already acquitted. Thus, the impugned judgment is wholly untenable, the learned trial Court ought to have honourably acquitted the appellant.
6. That, out of the 17 prosecution witnesses, P.W. Nos. 3, 4, 5, 7 and 10 claim to have seen the alleged occurrence. None of the said witness, however, could identity/ recognize any of the miscreants. P.W. No. 10 stated that about 8/9 years back one day at about 10/11 a.m. he heard firing sound and also found 10/12 persons fleeing away and he recognized 2 persons namely, Dhananjoy Reang and Kalinjoy Reang as they belong to his village. This witness did not mention the name of the appellant at any point of time. P.W. No. 3, the informant identified the appellant only in the Test Identification Parade which was conducted on 30-1-1991 inside the Dharmanagar Sub Jail. P.W. No. 3, however, stated that the miscreants were 7/8 in numbers. P.W. No. 4 did not mention the number of miscreants, he simply deposed that on 3-9-1990 the Cashier (P.W. No. 3) was returning in a vehicle drove by him from the Bank and when they reached on Dasda-Kanchanpur Road, some miscreants attacked the vehicle by putting log on the road, one person fired at the vehicle and the Cashier sustained bullet injuries. Thereafter, the miscreants snatched away one bag from the Cashier. P.W. No. 5 also did not mention the name of any miscreant, he simply deposed that 5/7 persons attacked the vehicle but he could not identify them as their faces were covered. P.W. No. 7 had also stated that some 6/7 miscreants attacked the vehicle, one of the miscreants fired at the vehicle and snatched away the Money Bag from the Cashier but he could not identify the miscreants as they were tribals.
7. That, the appellant was identified by the P.W. No. 3 as one of the miscreants, as stated hereinabove, in the Test Identification Parade. According to the learned Counsel appearing for the appellant, the appellant has been falsely implicated in the present case and the Test Identification Parade was not held/conducted in a proper way. Thus, the impugned judgment is vitiated. In the present case, the alleged occurrence took place on 3-9-1990, the appellant was arrested on 10-1-1991 and Test Identification Parade was held on 30-1-1991. It shows that after the lapse of about 20 days from the date of his arrest, the Test Identification Parade was held. Record reveals that the appellant was produced before the Court on 11-1-1991 and 17-1-1991 before the Test Identification Parade was held. There is no evidence on record to show that on both the occasions necessary measures to prevent from being exposed the identity of the appellant to the view of the others, were taken by the authority. In the absence of such measures, there was every possibility of exposing the identity of the appellant to the others including the informant i.e. P.W. No. 3 who identified the appellant as one of the miscreants.
8. That, admittedly there is no hard and fast rule as to how the Test Identification Parade is to be conducted but it should be done fairly and at the earliest opportunity after the arrest of the suspect. In Simon v. State of Karnataka , the Hon'ble Apex Court observed that no hard and fast rule for the Test Identification Parade can be laid down as it belongs to the stage of investigation and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold a Test Identification Parade. However, the aim and object of holding Test Identification Parade is to test/judge the ability of the witness on the question of capability to identify an unknown suspect whom the witness claimed to have seen at the occurrence. The necessity for holding an Identification Parade can arise only when the accused is not previously known to the witness. The whole idea of a Test Identification Parade is that witnesses who claimed to have seen the culprits at the time of occurrence are to identify them from the midst of the other persons without any aid or any other source (Munsi Singh Gautam v. State of M.P. .
However, in a catena of decisions the Hon'ble Apex Court and the different High Courts have expressed the view that it would be safer to conduct the Test Identification Parade as soon as possible earlier after the arrest of the suspected person. The reasons behind for holding such Test at the earliest opportunity is to enable the prospective witness to identify the suspect rightly before the identity of the suspect is being exposed to the view of the others. In Tahir Mohammad, Kamad Girendra Singh and another, Badri Singh and Ors. v. The State of Madhya Pradesh , the Hon'ble Apex Court acquitted the accused persons for not giving proper explanations of the delay in holding the Test Identification Parade and for keeping two days in the police custody after their arrest. In the above case, the accused persons were arrested on 3-6-1973 and they were kept in police custody till 5-6-1973 and the Test Identification Parade was held on 18-6-1973. The Hon'ble Apex Court in Satrughana alias Satrughana Parida and others v. State of Orissa 1995 Supp (4) SCC 448, further held that the unexplained delay in holding the Test Identification Parade adversely affects the value of evidence of identification. In the said case, the Identification Parade was held more than 15 days after the arrest of one accused and almost one month after the arrest of other accused. But the Hon'ble Apex Court set aside the conviction of the appellant for the delay in holding the Test Identification Parade. In the case in hand, the appellant was arrested on 10-1 -1991, he was in police custody till 17-1 -1991 and the Test Identification Parade was held on 30-1-1991. No explanation has been given by the prosecution for the delay of 20 days in holding the Test Identification Parade and also for keeping the appellant under police custody for 8 days.
P.W. No. 14, the learned Additional District and Sessions Judge, North Tripura, Dharmanagar, deposed that on 17-1-1991 he was the Sub-Divisional Judicial Magistrate, Dharmanagar. He admitted that the Test Identification Parade of the appellant was held under his supervision in the Sub Jail of Dharmanagar. He further deposed that the suspect was mixed up with other undertrial prisoners of having same statute, ethnic condition, age and dress at the ratio of 8 : 1. On being asked, the witness stated to him the circumstances under which he could recognize the accused. The witness identified the suspect by touching his body in presence of the then Sub Jailor and thereafter, he prepared the report of the Test Identification Parade. P.W. No. 14 in his cross-examination admitted that the appellant was produced before him on 11-1-1991 and he remanded him to police custody till 17-1-1991 and on 17-1-1991 the appellant was again produced before him. He further admitted that on both the occasions the face of the appellant was not covered. The witness has also admitted that he did not verify as to whether the persons who were mixed up with the appellant were the undertrial prisoners-or not but stated that those persons belong to different tribal communities. It is also admitted that he did not ask to the witness as to whether he had seen the suspect prior to the Test Identification Parade, either in the police station or in the Court after the alleged occurrence. In Rakesh Harilal Kahar v. State of Maharashtra 2007 Cri LJ (NOC) 99 (Bom) : 2007 (1) AIR Bom R 27, the Hon'ble High Court held that it is obligatory on the part of the Special Executive Officer, who conducted the Test Identification Parade, to ask the witness as to whether he had opportunity to see the suspect or his photograph prior to the Parade. The Hon'ble High Court further held that it is also mandatory requirement for the Special Executive Officer to inform the suspect that it is open to him to change his clothes before being paraded if he so desired. In the present case, P.W. No. 14 admitted that he did not put such questions as to prospective witness and also to the appellant. P.W. No. 14 has also admitted that he did not ask about the mental condition and eye sight of the witness prior to identification of the suspect. The witness categorically deposed that the investigating officer, although, did not observe the formalities for placing the suspect under the Test Identification Parade but he allowed the prayer of the investigating officer for holding the Test Identification Parade. This witness further deposed that he could not say the dresses wear by the undertrial prisoners at the time of holding the Test Identification Parade.
9. That, the report of the Test Identification Parade marked Exbt. 8 simply shows that the witness identified the suspect by way of touching his body. No proper explanation has been given as to how the witness could recognize the appellant. In the First Information Report marked Exbt. 10, nothing has been reflected about the identity of any miscreant. The fate of the appellant, in the present case, hangs solely on his identification by the P.W. No. 3 who claim himself to have seen the appellant once in the alleged occurrence which took place almost 120 days prior to the Test Identification Parade.
10. That, it is admitted by the both sides that the appellant was convicted solely on his identification as one of the accused persons in the Test Identification Parade held on 30-1-1991. But, from the above discussions, it is abundantly clear that the authority had not taken any measure to ensure that the identity of the appellant had not been exposed to the view of the others when he was produced on 11-1-1991, 17-1-1991 and 30-1-1991 resepectively before the Court and the Dharmanagar Sub Jail. No explanation was also given for the delay in holding the Test Identification Parade. It shows that the Identification Parade was not held properly and the same was also admitted by the P.W. No. 14. On the above backdrop, this Court is of the considered view that the alleged Test Identification Parade and its report are lack of fairness and also not free from doubt. It is quite dangerous and unsafe to keep reliance upon such identification. In Md. Abdul Nur v. State of Assam 1996 (II) GLT 368, this High Court acquitted the accused appellant by holding that the solitary piece of identification of the accused at the Test Identification Parade is too shaky and too suspicious to sustain conviction. The Court was of the view that there was a delay of 5 days in holding the Test and also the witness could not disclose the peculiar feature of marks of identification which enable the witness to identify the accused. This Court was further observed as follows:
...This is one such salutary precautions which the police ought to take if the Test Identification Parade is to inspire any confidence. It is for the accused that he may not conceal or cover his face but if he is to be put to any test identification, during the course of investigation the police must as a rule provide him with facilities to cover his face if he so desires so that he may not be exposed to the view of prospective witnesses who may identify him at the test parade. In the instant case nothing of the sort has been done....
The Hon'ble Apex Court in Satrughana (supra) held that the evidence relating to identification is extremely shaky and discrepant which would legally form the basis of appellant's conviction.
11. That, having regard to the above decisions of the Hon'ble Apex Court as well as different High Courts and in view of the above discussions and observations, this Court is of the firm view that the conviction of the. appellant on such solitary piece of identification is not sustainable in law. The appellant is entitled to benefit of doubt. Further discussion on the second point raised by the learned appellant's counsel appears to be "unnecessary in view of the above observations.
12. That, in the result the judgment of conviction and sentence dated 26-6-2000 passed by the learned Assistant Sessions Judge, North Tripura, Dharmanagar in S.T. 47(NT/D)/1999 is set aside. The appellant is acquitted on the benefit of doubt and the bail bond and surety bond stand discharged. The appeal is accordingly allowed.
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