1 CrA Nos. 894/2006 204/2010
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
DB:- Hon’ble Shri Justice S. A.Dharmadhikari
Hon’ble Shri Justice G. S. Ahluwalia, J.J.
CRA 894/2006
Kamlesh
Vs.
State of MP
AND
CRA 204/2010
Mithlesh
vs.
State of MP
Shri Rohit Mishra, counsel for appellant Kamlesh in Criminal Appeal
No. 894/2006 Shri Ashok Kumar Jain, counsel for appellant
Mithlesh in Criminal Appeal No.204/2010.
Shri B.P.S.Chauhan, Public Prosecutor for the State in both Criminal
Appeal Nos.894/2006 and 204/2010.
JUDGMENT
(Delivered on ..07/03/2018)
Per G. S. Ahluwalia, J:-
This judgment shall also dispose of Criminal Appeal
No.204/2010 filed by appellant- Mithlesh.
(2) The appellants- Kamlesh and Mithlesh have filed these two
Criminal Appeals under Section 374 of Cr.P.C. challenging the
proprietary and correctness of judgment and sentence dated 3-10-
2006 passed by Special Judge (M.P.D.V.P.K.Act), Sheopur in Special
Sessions Trial No.14/2003, by which the appellants have been
convicted under Section 364-A of I.P.C. read with Section 11/13 of
M.P.D.V.P.K.Act and have been sentenced to undergo the Life
Imprisonment and a fine of Rs.1,000/- with default imprisonment.
(3) The necessary facts for the disposal of the present appeal in
short are that on 11-12-2002, at about 9 in the evening, the
abductees Buddhu and Bhagwan Singh had gone to their fields.
Buddhu had taken meals for Vidhyaram, who is the brother-in-law
of his brother Prakash. After keeping the meals in the hut, the
abductee Buddhu, went to the well, whereas Bhagwan Singh was in
2 CrA Nos. 894/2006 204/2010
his hut. Till 12:30 in the night, the abductee Buddhu had irrigated
his fields and thereafter came back to the hut, where Prakash,
Vidhya and Bhagwan Singh were sleeping. At that time, about 6
persons armed with guns and 2 persons armed with lathi came
there and surrounded the abductee Buddhu. They instructed him to
show the way for devara and took the abductees Buddhu and
Bhagwan Singh with them. They went on walking for the whole
night and did not release the abductees. The miscreants who were
having lathi left them whereas six persons who were carrying guns
remained with the abductees. Thereafter, 3 persons out of 6, also
left them, and 3 persons remained with the abductees. The
miscreants, forced Bhagwan Singh to write two letters demanding
ransom of Rs.5 lacs. When the miscreants were sleeping in the
night, Buddhu and Bhagwan Singh tried to run away. Although
Bhagwan Singh succeeded in escaping from their custody, whereas
Buddhu was once again caught by the miscreants. Thereafter,
Bhagwan Singh went to Police Station and lodged a report on 18-
12-2002. A spot map was prepared and the statements of the
witnesses were recorded. During this time, the abductee Buddhu
remained as hostage with the dacoits, and remained with them in
the forest for several days. On one day, one of the miscreants
informed that 3 persons have died in a police encounter and
therefore, they changed their place. On 18-1-2003, it is alleged
that the appellants started saying that since, 3 persons have died
in police encounter, therefore, Budhhu may also be killed, however,
as Buddhu was an innocent person, therefore, he was not killed
and was left. The statement of Buddhu was recorded and after
completing the investigation, the police filed the charge sheet for
offence under Section 364-A of I.P.C. read with Section 11/13 of
M.P.D.V.P.K. Act.
(4) The Trial Court framed charges for offence under Section
364-A of I.P.C. read wih Section 11/13 of M.P.D.V.P.K. Act.
(5) The appellants abjured their guilt and pleaded not guilty.
(6) The prosecution in order to prove its case, examined Thakur
Lal (P.W.1), Fosu (P.W.2), Buddhu (P.W.3), Bhagwan Singh (P.W.4),
Babulal (P.W.5), and C.S. Jadon (P.W.6). The appellants did not
examine any witness in their defence.
(7) The Trial Court, by judgment and sentence dated 3-10-2006,
3 CrA Nos. 894/2006 204/2010
convicted the appellants for offence under Section 364-A of I.P.C.
read with Section 11/13 of M.P.D.V.P.K. Act.
(8) Challenging the judgment and sentence passed by the Trial
Court, it is submitted by the Counsel for the appellants that the
prosecution has failed to prove that the appellants had abducted
Buddhu (P.W.3) and Bhagwan Singh (P.W.4). The demand of
ransom has also not been proved by the prosecution. No Test
Identification Parade of Kamlesh was got done, whereas the
identification in the Court is a weak type of evidence. It is further
submitted that the letter of ransom has not been proved by the
prosecution. The appellants are innocent persons and they are in
jail from the year 2003.
(9) Per contra, it is submitted by the Counsel for the State that
the guilt of the appellants have been proved beyond reasonable
doubt.
(10) Heard the learned Counsel for the parties and perused the
record.
(11) It is the case of the prosecution, that when the abductee
Buddhu was in the captivity of the appellants, two more persons
were abducted. The prosecution has examined Thakur Lal (P.W.1)
and Fosu (P.W.2) and they have stated that they were abducted by
dacoits but did not support the prosecution case, on the question
of identity of the appellants. Thakurlal (P.W.1) and Fosu (P.W.2)
were declared hostile and were cross-examined by the Public
Prosecutor, but nothing could be elicited from their evidence, which
may make support their evidence, on the question of identity of the
appellants as the accused persons. These two witnesses have not
supported the prosecution case on the question of identity of the
appellants, thus, it is clear that the evidence of Thakurlal (P.W.1)
and Fosu (P.W.2) does not indicate towards the guilt of the
appellants.
(12) Buddhu (P.W.3) and Bhagwan Singh (P.W.4) have supported
the prosecution case, and the entire prosecution story hinges
around the evidence of these two witnesses.
(13) Buddhu (P.W.3) has stated that he had gone to his fields
where he was abducted by 6-7 armed persons and they took him
towards the forest. The appellants were among those 6-7 persons,
who had abducted him. After about 1 month and 8 days, he was
4 CrA Nos. 894/2006 204/2010
released by the accused persons. When he was in their captivity,
the accused persons were saying that he would be released only
after getting the ransom of Rs.5 lacs, however, had not stated that
what the accused would do, in case, an amount of Rs.5 lac is not
paid. He succeeded in running away, taking advantage of dark
night. This witness could not name the other accused persons,
except the appellants. Bhagwan Singh was also abducted by the
accused persons, however, he succeeded in escaping after 4 days
of captivity. During the period of 1 month and 8 days, he was
provided with chapatti and water and it is also stated that during
this period, he was tied. This witness was cross- examined. In
cross-examination, this witness has admitted that he had seen the
appellants in the Joura Court, where he had gone to attend a case
and thereafter, he had seen the appellants on the date of recording
of his evidence. Thus, it is clear that this witness has admitted that
after escaping from the captivity, he had seen the appellants in the
Joura Court premises also. Thus, it is clear that the appellants after
their arrest were not kept Baparda by the police and no
precautions were taken by the police to hide the identity of the
appellants. Although the police had got the test identification of the
appellant Mithlesh done on 25-4-2003 and Buddhu (P.W.3) is said
to have identified the appellant Mithlesh, but this witness in his
Court evidence, has stated that no accused was got identified by
the police. Thus, this witness has disowned the Test Identification
of the appellant Mithlesh. It is surprising that Kamlesh was also
arrested by the police on 27-2-2003, and although the names of
the appellants were told by Buddhu (P.W.3) but inspite of that the
Test Identification of Mithlesh was got done by the police on 25-4-
2003. If the appellant Mithlesh was already identified by Buddhu
(P.W.3), then there was no need for the police to hold test
identification of Mithlesh from Buddhu (P.W.3) and if the police was
of the view that inspite of the fact that Buddhu (P.W.3) has named
Mithlesh, but by way of abundant caution, it is necessary to
conduct a Test Identification Parade of Mithlesh, then the same
analogy would have applied for Kamlesh also, but for the reasons
best known to the police, the test identification of Kamlesh, from
Buddhu (P.W.3) and Bhagwan Singh (P.W.4) was not got done by
the police. Furthermore, Buddhu (P.W.3) has admitted that he had
5 CrA Nos. 894/2006 204/2010
seen the appellants in the Joura Court premises when he had gone
to attend a Court proceeding. Further, Buddhu (P.W.3) has
specifically stated in his para 6 of his cross-examination, that he
does not know the name of the appellants but he know them by
their face. In Para 11 of his cross-examination, this witness has
stated that in his case diary statement, he had disclosed the names
of the appellants, merely because, the miscreants were calling
them by their names. In view of this admission, made by Buddhu
(P.W.3), in the considered opinion of this Court that the names
disclosed by Buddhu (P.W.3) in his case diary statement, Ex. D.1
will be of no use for the prosecution.
(14) Bhagwan Singh (P.W.4) has partially not supported the
prosecution story. Bhagwan Singh (P.W.4) has not stated anything
against Kamlesh and has also not identified him, in the Court.
Bhagwan Singh (P.W.4) has stated that he had identified Mithlesh
in Test Identification Parade, Ex.P.3, conducted by the police. This
witness has also stated that after 4 days of captivity, taking
advantage of the fact that the accused persons were sleeping, he
succeeded in escaping. However, this witness has not stated that
Buddhu had also tried to run away, along with this witness, but
again he was taken in captivity by the accused persons. Although
this witness has stated that he was forced to write a letter
demanding ransom of Rs.5 lacs, but for the reasons best known to
the prosecution, the said letter was not got identified in the Court
from this witness. Letter Ex.P.4 was got proved from the
Investigation Officer, C.S. Jadon (P.W.6). Although no objection was
raised by the defence Counsel at the relevant time, but still the
prosecution was under obligation, to get the letter Ex.P.4, identified
from this witness, that whether it was the same letter, Ex.P.4,
which was written by this witness or not? The report of the
handwriting expert has not been produced, and even the letter was
not sent to the handwriting expert, to find out that who was the
author of the letter Ex.P.4. This witness has proved that he had
lodged the F.I.R., Ex.D.4.Babulal (P.W.5) was the witness of seizure
of Inland Letter from the possession of Cheu, but he has not
supported the prosecution case and was declared hostile.
(15) C.S. Jadon (P.W.6) is the investigating officer. This witness
had written the F.I.R., Ex. D.4. The spot map, Ex.P.8 was prepared.
6 CrA Nos. 894/2006 204/2010
While escaping from the captivity of the dacoits, Bhagwan Singh
(P.W.4) had left his one shoe on the spot, which was also seized.
One container of red colour was also seized vide seizure memo
Ex.P.9. On 26-12-2002, he had seized an inland letter, Ex.P.4 on
production of the same by Cheu. The said letter was seized vide
seizure memo Ex.P.5. On the same day, Ratiram had also produced
another inland letter, Ex.P.6 which was seized vide seizure memo,
Ex.P.7. On 27-2-2003, the appellant Kamlesh was arrested.
(16) If the entire evidence which has been led by the prosecution,
the following circumstances would emerge against the appellant
Kamlesh :-
1. Kamlesh was named by Buddhu (P.W.3) in his case diary
statement, Ex. D.1 as one of the members of gang of
dacoits.
2.Kamlesh has been identified by Buddhu (P.W.3) in the
Court.
The following circumstance would emerge against the
appellant- Mithlesh :-
1.Mithlesh was named by Buddhu (P.W.3) in his case diary
statement, Ex.D.1 as one of the members of the gang of
dacoits.
2.Mithlesh was identified by Bhagwan Singh (P.W.4) in the
Test Identification Parade conducted by the police during
investigation.
3.Mithlesh was identified by Buddhu (P.W.3) and Bhagwan
Singh (P.W.4) in the Court.
Another circumstance which appears against the appellants :-
1.Recovery of letters of ransom Ex.P.4 and P.6 seized on
production of the same by Cheu and Ratiram on 26-12-2002.
(17):– (1) Involvement of Kamlesh:-
It is submitted by the Public Prosecutor that since, Kamlesh
was named by Buddhu (P.W.3) in his case diary statement and he
had already identified Kamlesh, therefore, there was no need for
conducting test identification Parade of Kamlesh and Kamlesh has
also been identified by Buddhu (P.W.3) in the Court, therefore, the
involvement of Kamlesh in the abduction of Buddhu (P.W.3) and
Bhagan Singh (P.W.4) is proved beyond reasonable doubt.
The submission made by the Counsel for the State, on its
face value, appears to be very impressive, but on deeper scrutiny,
the same cannot be accepted. Buddhu (P.W.3) in his case diary
7 CrA Nos. 894/2006 204/2010
statement, Ex.D.1 had named Kamlesh and Mithlesh, and if the
submission made by the Counsel for the State, that since, Kamlesh
was named by Buddhu (P.W.3) in his case diary statement, Ex.D.1,
and therefore, it was not necessary for the police to hold the Test
Identification of Kamlesh, is accepted, then the same analogy
would apply to the case of Mithlesh. However, for the reasons best
known to the police, the Test Identification Parade of Mithlesh, was
got done by the police during investigation. If the police, inspite of
the fact that Buddhu (P.W.3) had already named Mithlesh and
Kamlesh in his case diary statement, Ex.D.1, was of the view that
the Test Identification of Mithlesh is necessary, then it should have
also put the appellant Kamlesh for Test Identification Parade.
Another submission of the Public Prosecutor, that since,
Kamlesh has been identified by Buddhu (P.W.3) in the Court,
therefore, the identity of the appellant Kamlesh, is not beyond
reasonable doubt, cannot be accepted, for the simple reason, that
Buddhu (P.W.3) in his cross-examination has accepted, that he had
seen the appellants Kamlesh and Mithlesh in the Joura Court
premises, when he had gone to attend the Court Case. Thus, it is
clear that Buddhu (P.W.3) had already seen Mithlesh and Kamlesh,
prior to his evidence in the Court, and he had seen the appellants
in the Joura Court premises, therefore, under the facts and
circumstances of the case, the identification of the appellant
Kamlesh and Mithlesh by Buddhu (P.W.3) in the Dock becomes
suspicious and hence, the same cannot be relied upon, unless and
until, it is corroborated by any other evidence.
It is well-established principle of law, that the Test
Identification Parade conducted by the police, during investigation
is not the substantive piece of evidence, and the substantive piece
of evidence is the identification of the accused, in the Court,
however, the Test Identification Parade, conducted by the Police,
during investigation, can be treated as a corroborative piece of
evidence.
The Supreme Court in the case of Prakash Vs. State of
Karnataka, reported in (2014) 12 SCC 133 has held as under :-
”13.2. Secondly, why is it that no test
identification parade was held to determine
whether Prakash was actually the person who
was seen by PW 6 Gangamma and by
8 CrA Nos. 894/2006 204/2010Ammajamma?
14. Two types of pre-trial identification evidence
are possible and they have been succinctly
expressed in Marcoulx v. R. [(1976) 1 SCR 763
(Can SC)] by the Supreme Court of Canada in
the following words:
“An important pre-trial step in many
criminal prosecutions is the identification of
the accused by the alleged victim. Apart
from identification with the aid of a
photograph or photographs, the
identification procedure adopted by the
police officers will normally be one of two
types: (i) the show up–of a single suspect;
(ii) the line-up presentation of the suspect
as part of a group.”
14.1. With reference to the first type of
identification evidence, the Court quotes Prof.
Glanville Williams from an eminently readable
and instructive article in which he says:
“… if the suspect objects [to an
identification parade] the police will merely
have him “identified” by showing him to
the witness and asking the witness
whether he is the man. Since this is
obviously far more dangerous to the
accused than taking part in a parade, the
choice of a parade is almost always
accepted.”
14.2. With reference to the second type of
identification evidence, Prof. Glanville Williams
says:
“Since identification in the dock is patently
unsatisfactory, the police have developed
the practice of holding identification
parades before the trial as a means of
fortifying a positive identification…. The
main purpose of such a parade from the
point of view of the police is to provide
them with fairly strong evidence of identity
on which to proceed with their
investigations and to base an eventual
prosecution. The advantage of
identification parades from the point of
view of the trial is that, by giving the
witness a number of persons from
amongst whom to choose, the prosecution
seems to dispose once and for all the
question whether the defendant in the
dock is in fact the man seen and referred
to by the witness.”[ 1963 Cri Law Review
479]
14.3. A similar view was expressed by the
Canadian Supreme Court in Mezzo v. R. [(1986)
1 SCR 802 (Can SC)]
9 CrA Nos. 894/2006 204/2010
15. An identification parade is not mandatory
[Ravi Kapur v. State of Rajasthan, (2012) 9 SCC
284] nor can it be claimed by the suspect as a
matter of right. [R. Shaji v. State of Kerala,
(2013) 14 SCC 266] The purpose of pre-trial
identification evidence is to assure the
investigating agency that the investigation is
going on in the right direction and to provide
corroboration of the evidence to be given by the
witness or victim later in court at the trial.
[Rameshwar Singh v. State of JK, (1971) 2
SCC 715] If the suspect is a complete stranger
to the witness or victim, then an identification
parade is desirable [Mulla v. State of U.P.,
(2010) 3 SCC 508] unless the suspect has been
seen by the witness or victim for some length of
time. [State of U.P. v. Boota Singh, (1979) 1
SCC 31] In Malkhansingh v. State of M.P.
[(2003) 5 SCC 746] it was held: (SCC pp. 751-
52, para 7)
“7. … The identification parades belong to
the stage of investigation, and there is no
provision in the Code of Criminal Procedure
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 of Criminal
Procedure. 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.”
16. However, if the suspect is known to the
witness or victim [Jadunath Singh v. State of
U.P., (1970) 3 SCC 518] or they have been
shown a photograph of the suspect or the
suspect has been exposed to the public by the
media [(2014) 4 SCC (Cri) 185] no identification
evidence is necessary. Even so, the failure of a
victim or a witness to identify a suspect is not
always fatal to the case of the prosecution. In
Visveswaran v. State [(2003) 6 SCC 73 ] it was
held: (SCC p. 78, para 11)
“11. … The identification of the accused
either in a test identification parade or in
court is not a sine qua non in every case if
from the circumstances the guilt is
otherwise established. Many a time, crimes
are committed under the cover of darkness
when none is able to identify the accused.
The commission of a crime can be proved
also by circumstantial evidence.”
17. What happened in the present case? Both
10 CrA Nos. 894/2006 204/2010
PW 6 Gangamma and Ammajamma saw Prakash
for the first time on the afternoon of 5-11-1990
and they had seen him, if at all, briefly if not
fleetingly. It is true that these witnesses had
identified Prakash when he was produced before
them on his apprehension about five or six days
after the incident and also while he was in the
dock in court, but the circumstances under
which the dock identification took place are not
quite satisfactory inasmuch as both the
witnesses entered the witness box almost 4½
years after they are said to have first seen
Prakash only briefly and without any
identification parade having been conducted.
18. Given the law laid down by this Court, it
would have been more appropriate for the
investigating officer to have conducted an
identification parade so that it becomes an
effective “circumstance corroborative of the
identification of the accused in court”. [(2014) 4
SCC (Cri) 185] However, that was not done. The
trial court was of the view that the evidence on
record did not inspire confidence as far as fixing
the identity of the suspect as Prakash is
concerned. The trial court took into account the
long lapse of time between the incident and the
identification of Prakash in court, the absence of
any distinguishing features of Prakash, the brief
time for which the witnesses saw him and the
fact that he was a total stranger to the
witnesses. The High Court was satisfied that
Prakash was suitably identified but completely
overlooked the fact that even if the trial court
had come to an erroneous conclusion, at best, it
placed Prakash at the place of occurrence at
1.00 p.m. and not later. We are of the opinion
that given the facts of the case, it would have
been more appropriate for an identification
parade to have been conducted, but its absence
in this case is not necessarily fatal, there being
other reasons also for not accepting the case set
up by the prosecution. However, the absence of
an identification parade certainly casts a doubt
about Prakash’s presence at Gangamma’s house
on 5-11-1990.”
The Supreme Court in the case of Prahlad Singh Vs. State
of M.P., reported in (1997) 8 SCC 515, has held as under :-
”5. The learned counsel for the appellant further
urged that the only other item of evidence to
prove the complicity of the appellant with the
offence is the substantive evidence of the
prosecutrix in the Court inasmuch as she
identified the appellant to be the person who
committed the sexual assault on her on the date
of occurrence. But that evidence is also wholly
11 CrA Nos. 894/2006 204/2010unacceptable in view of the statement of the
prosecutrix in the cross-examination wherein
she stated:
“Today, I have come along with my father.
The police uncle was also with me outside.
Now when the accused entered the court,
then the policewala and my father had told
me that he is the accused and that is why I
have stated that he is the accused. The
policewala uncle had tutored my statement
outside today and accordingly I am
deposing my same tutored statement.”
6. In view of the aforesaid evidence of the
prosecutrix, in our opinion the learned counsel
for the appellant is wholly justified in making his
submission that the substantive evidence of the
prosecutrix in court identifying the accused is
absolutely of no relevance and is wholly
unacceptable and no conviction can be based on
the same. Mr Shukla, the learned Senior
Counsel appearing for the respondent, however,
submitted that the accused being an army jawan
and a colleague of the father of the prosecutrix
and the prosecutrix having been sexually
assaulted by the accused, there is no reason for
the prosecutrix to unnecessarily involve an
innocent man and since the fact of rape on the
prosecutrix has been established beyond
reasonable doubt the High Court rightly
convicted the appellant. We are, however,
unable to accept this contention since until and
unless there is reliable and acceptable evidence
to come to a conclusion that it is the accused-
appellant who committed rape he cannot be
convicted even if the factum of rape on the
prosecutrix is established beyond reasonable
doubt. In our considered opinion, therefore, the
High Court interfered with an order of acquittal
on mere surmises and conjectures without
having an iota of acceptable evidence bringing
complicity of the accused and as such the said
conviction and sentence cannot be sustained in
law. Accordingly we set aside the conviction and
sentence passed by the High Court of Madhya
Pradesh and acquit the appellant of the charges
levelled against him. The criminal appeal is
allowed. The bail bond furnished by the
appellant shall stand discharged.”
The Supreme Court in the case of Mohd. Iqbal M. Sheikh
and Others Vs. State of Maharashtra, reported in (1998) 4
SCC 494 has held that if the witness knew the accused persons
either by name or by face, the question of the police showing him
the accused persons becomes irrelevant. If the witness did not
12 CrA Nos. 894/2006 204/2010
know the accused persons by name but could only identify from
their appearance then a test identification parade was necessary,
so that, the substantive evidence in court about the identification,
which is held after a fairely long period, could get corroboration
from the identification parade. If the police shows the accused
persons in the police lock-up to the identifying witness then the so-
called identification loses its value, inasmuch as it is only because
of the police showing the persons the witness is being able to
identify the alleged accused. If the accused has been shown to him
in the course of investigation then the so-called identification in
court is of no consequence and cannnot form the basis of
conviction.
The Supreme Court in the case of Sheo Shankar Singh Vs.
State of Jharkhand, reported in (2011) 3 SCC 654 has held as
under :-
”46. It is fairly well settled that identification of
the accused in the court by the witness
constitutes the substantive evidence in a case
although any such identification for the first time
at the trial may more often than not appear to
be evidence of a weak character. That being so a
test identification parade is conducted with a
view to strengthening the trustworthiness of the
evidence. Such a TIP then provides
corroboration to the witness in the court who
claims to identify the accused persons otherwise
unknown to him. Test identification parades,
therefore, remain in the realm of investigation.
47. The Code of Criminal Procedure does not
oblige the investigating agency to necessarily
hold a test identification parade nor is there any
provision under which the accused may claim a
right to the holding of a test identification
parade. The failure of the investigating agency
to hold a test identification parade does not, in
that view, have the effect of weakening the
evidence of identification in the court. As to
what should be the weight attached to such an
identification is a matter which the court will
determine in the peculiar facts and
circumstances of each case. In appropriate
cases the court may accept the evidence of
identification in the court even without insisting
on corroboration.
48. The decisions of this Court on the subject
are legion. It is, therefore, unnecessary to refer
to all such decisions. We remain content with a
reference to the following observations made by
this Court in Malkhansingh v. State of M.P.
13 CrA Nos. 894/2006 204/2010
[(2003) 5 SCC 746]: (SCC pp. 751-52, para 7)
“7. 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 a 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 of Criminal
Procedure 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 of
Criminal Procedure. 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 Admn. [AIR 1958 SC
350], Vaikuntam Chandrappa v. State of
A.P. [AIR 1960 SC 1340], Budhsen v. State
of U.P. [(1970) 2 SCC 128 ] and
Rameshwar Singh v. State of JK [(1971) 2
SCC 715].)”
49. We may also refer to the decision of this
Court in Pramod Mandal v. State of Bihar
[(2004) 13 SCC 150 ] where this Court
observed: (SCC p. 158, para 20)
“20. It is neither possible nor prudent to lay
14 CrA Nos. 894/2006 204/2010
down any invariable rule as to the period
within which a test identification parade
must be held, or the number of witnesses
who must correctly identify the accused, to
sustain his conviction. These matters must
be left to the courts of fact to decide in the
facts and circumstances of each case. If a
rule is laid down prescribing a period within
which the test identification parade must be
held, it would only benefit the professional
criminals in whose cases the arrests are
delayed as the police have no clear clue
about their identity, they being persons
unknown to the victims. They, therefore,
have only to avoid their arrest for the
prescribed period to avoid conviction.
Similarly, there may be offences which by
their very nature may be witnessed by a
single witness, such as rape. The offender
may be unknown to the victim and the case
depends solely on the identification by the
victim, who is otherwise found to be truthful
and reliable. What justification can be
pleaded to contend that such cases must
necessarily result in acquittal because of
there being only one identifying witness?
Prudence therefore demands that these
matters must be left to the wisdom of the
courts of fact which must consider all
aspects of the matter in the light of the
evidence on record before pronouncing
upon the acceptability or rejection of such
identification.”
50. The decision of this Court in Malkhansingh
case [(2003) 5 SCC 746]: and Aqeel Ahmad v.
State of U.P. [(2008) 16 SCC 372 ] adopt a
similar line of reasoning.”
Thus, if the facts of this case are considered, then it is clear
that the identification of the accused Kamlesh in the Court by
Buddhu (P.W.3) cannot be relied upon for the simple reason, that
not only, no Test Identification Parade was conducted by the Police
during the investigation, but also, the witness Buddhu (P.W.3) had
seen the appellant Kamlesh in the Joura Court premises, prior to
recording of his evidence, as well as there is no other evidence
which may corroborate the identification of the appellant Kamlesh
in the Dock. Thus, the identification of Kamlesh by Buddhu (P.W.3)
in the Court cannot be relied upon. If the identification of Kamlesh
by Buddhu (P.W.3) in Court is ignored, then there is no other
evidence against Kamlesh. Accordingly, this Court is of the
15 CrA Nos. 894/2006 204/2010
considered opinion, that the prosecution has failed to prove the
guilt of the appellant Kamlesh beyond reasonable doubt.
(2) Recovery of letter of Ransom:-
According to the prosecution, Ex.P.4 and Ex.P.6 are the two
letters of Ransom which were written by Bhagwan Singh (P.W.4)
under the instructions of the dacoits and these two letters were
sent to Cheu and Ratiram through Post. Bhagwan Singh (P.W.4)
has stated that he had written letters on the instructions of the
Dacoit Rajputa. However, for the reasons best known to the
prosecution, these two letters were not shown to Bhagwan Singh
(P.W.4) and were got proved by Investigation Officer, C.S. Jadon
(P.W.6) and they have been marked as Ex.P.4 and P.6. Although no
objection was raised by the Counsel for the appellants at the
relevant time, but the crux of the matter is that these two letters,
i.e., Ex.P.4 and Ex.P.6 were not proved by Bhagwan Singh (P.W.4).
Even these two letters, Ex.P.4 and Ex.P.6 were not shown to
Bhagwan Singh (P.W.4), to prove that whether these letters are the
same letters which were written by him or not? Even the report of
the handwriting expert has not been filed to show that these two
letters, Ex.P.4 and Ex.P.6 were in the handwriting of Bhagwan
Singh (P.W.4). C.S. Jadon (P.W.6) has stated that he had seized
these two letters on production of the same by Cheu and Ratiram,
but for the reasons best known to the prosecution, neither Cheu
nor Ratiram has been examined. Thus, there is nothing on record
to show that these letters are in the handwriting of Bhagwan Singh
(P.W.4) and these letters were ever received by Cheu and Ratiram
and they had made these letters available to the police. In view of
the above mentioned facts and circumstance, this Court is of the
considered opinion, that the prosecution has failed to prove that
any letter demanding ransom was ever written by Bhagwan Singh
(P.W.4) on the instructions of Dacoit Rajputa and were ever
received by Cheu and Ratiram. Thus, this circumstance has
remained not proved.
(3) Involvement of Mithlesh:-
So far as the involvement of Mithlesh is concerned, Buddhu
(P.W.3) and Bhagwan Singh (P.W.4) are the witnesses, who have
deposed against the appellant Mithlesh. Mithlesh was put for Test
Identification Parade, and he was identified by Budhhu (P.W.3) and
16 CrA Nos. 894/2006 204/2010
Bhagwan Singh (P.W.4). So far as Buddhu (P.W.3) is concerned, he
has not stated anything about the test identification parade.
Bhagwan Singh (P.W.4) has stated that he had identified Mithlesh
in the Test Identification Parade, Ex.P.3. There is nothing on record
as to when the appellant Mithlesh was arrested. C.S. Jadon (P.W.6)
has not stated that on what date, Mithlesh was arrested. Even the
arrest memo of Mithlesh has not been proved by the prosecution.
The appellant Mithlesh was put for Test Identification Parade which
was held on 25-4-2003, Ex. P.3. However, in view of the admission
made by Buddhu (P.W.3) to the effect, that he had seen both the
appellants, namely, Kamlesh and Mithlesh in Joura Court when he
had gone to attend a Court case, it is clear that the appellants were
not kept Baparda and no precaution was taken by the police to
hide their identity before holding the Test Identification Parade.
Even the Naib Tahsildar, who had conducted the Test Identification
Parade, has not been examined by the prosecution. Although
Bhagwan Singh (P.W.4) has identified the appellant Mithlesh in the
Court, but under these circumstances, this Court is of the
considered opinion that the identification of Mithlesh by Bhagwan
Singh (P.W.4) in the Court, also becomes doubtful, and it would be
very unsafe to rely on the said circumstance in absence of any
other corroborative piece of evidence. Unfortunately, there is no
other evidence against the appellant Mithlesh, therefore, this Court
is of the considered opinion, that it would be very unsafe to rely on
the evidence led by the prosecution.
Another circumstance against Mithlesh is that he was named
by Budhhu (P.W.3) in his case diary statement, Ex.D.1, as well in
his Court evidence as one of the members of the dacoits gang.
However, the police during investigation, thought it necessary to
put the appellant Mithlesh for Test Identification Parade, thus, it is
clear that even the investigating agency was not sure that whether
the statement of Budhhu (P.W.3) was worth reliance or not?
Further Buddhu (P.W.3) in para 11 of his cross examination had
admitted that he did not know the names of the accused persons,
and was knowing them from their faces. Under this circumstance,
when this Court has already held that the Identification of the
appellants was necessary, therefore, merely because Buddhu
(P.W.3) had named Mithlesh in his case diary statement, Ex.D.1 as
17 CrA Nos. 894/2006 204/2010
well as in his Court evidence, it would be of no assistance to the
prosecution and cannot be relied upon, as Buddhu (P.W.3) in his
evidence doesnot say anything about the Test Identification Parade
of the appellant Mithlesh and he is completely silent about Test
Identification Parade, Ex.P.3.
(18) Considering the totality of the facts and circumstances of
the case, this Court is of the considered opinion, that the
prosecution has failed to establish the guilt of the appellants
beyond reasonable doubt. Therefore, they are acquitted of the
charges under Section 364-A of I.P.C. read with Section 11/13 of
M.P.D.V.P.K. Act.
(19) Consequently, the judgment and sentence dated 3-10-2006
passed by Special Judge (M.P.D.V.P.K.Act), Sheopur in Special
Sessions Trial No.14/2003 is hereby set aside. The appellants are
acquitted of all the charges. The appellants are in jail. They be
released immediately, if they are not required in any other case.
(20) The fine amount, if deposited, shall be returned back to the
appellants and if the amount of Rs.1,000/-has been paid to Buddhu
(P.W.3) and Bhagwan Singh (P.W.4) as per direction contained in
Para 30 of the Judgment of the Trial Court, then the same shall be
recovered from Buddhu (P.W.3) and Bhagwan Singh (P.W.4).
(21) The appeals i.e., Cr.A. No.894/2006 filed by Kamlesh and
Cr.A. No.204/2010 filed by Mithlesh, hereby succeed and are
allowed.
(S.A. Dharmadhikari) (G.S. Ahluwalia)
Judge Judge
*MKB*
Digitally signed by MAHENDRA
KUMAR BARIK
Date: 2018.03.08 10:29:10 +05’30’
