Criminal Appeal No. 468 of 2004,Criminal Appeal No. 469 of 2004

3rd August, 2005

Petitioner Counsel: Shri. YOGESH NAYYAR
Respondent Counsel: Shri. A. D. SONAK

Cases Cited:
Lakshman Prasad Vs. State of Bihar, AIR 1981 SC 1388 [Para 4]
Subhash and Shiv Shankar Vs. State of U. P., AIR 1987 SC 1222 [Para 4]
Chandran Alias Surendran Vs. State of Kerala, SC Acc CrJ-437 [Para 4]
Bollavaram Pedda Narsi Reddy Vs. State of A. P., AIR 1991 SC 1468 [Para 4]
State of U. P. Vs. Hardeo, AIR 1992 SC 1854 [Para 4]
Karam Singh alias Karmu Vs. The State by the Inspector of CBCID, Madras, AIR 1992 SC 1438 [Para 4]
Tahir Mohammad Vs. State of M. P., AIR 1993 SC 931 [Para 4]
Jaspal Singh alias Pali Vs. State of Punjab with Darshan Singh Vs. State of Punjab, AIR 1997 SC 332 [Para 4]
Shambhu Dayal Vs. Subhash Chandra, AIR 1998 SC 1732 [Para 4]
Ravindra alias Ravi Bansi Gohar Vs. State of Maharashtra, AIR 1998 SC 3031 [Para 4]
Jaipal Vs. State of U. T. Chandigarh, SC Acc CrJ-684 [Para 4]
Vijayan alias Rajan Vs. State of Kerala, AIR 1999 SC 1086 [Para 4]
Mohemmad Yusuf Mohammed Sharif Rahim Vs. The State of Maharashtra, 2002 ALL MR (Cri) 398 [Para 4]
Dana Yadav alias Dahu Vs. State of Bihar, 2002 ALL MR (Cri) 2548 (S.C.) [Para 4]
Nirmal Pasi Vs. State of Bihar, 2003 ALL MR (Cri) 1606 (S.C.) [Para 4]
Sidha Dehury Vs. State, 1982 Cri.L.J. 500 [Para 4]
Manepalli Anjaneyulu Vs. State of A. P., 1999 Cri.L.J. 4375 [Para 4]
Har Pal Singh Vs. State of U. P., 2000 Cri.L.J. 4552 [Para 4]
Latel Vs. State of M. P., 1994 Cri.L.J. 1122 [Para 4]
Pritam Singh Vs. The State of Rajasthan, 1971 Cri.L.J. 974 [Para 4]
Hasib Vs. The State of Bihar, 1972 Cri.L.J. 233 [Para 4]
Jamuna Chaudhary Vs. State of Bihar, AIR 1974 SC 1822 [Para 4]
State of Maharashtra Vs. Sukhdeo Singh, AIR 1992 SC 2100 [Para 4]
Kansa alias Kanaraj Vs. State of U. P., 2002(1) Crimes 717 [Para 4]
Mohd. Abdul Hafeez Vs. State of Andhra Pradesh, AIR 1983 SC 367 [Para 4]
Hardial Singh Vs. State of Punjab, AIR 1992 SC 1871 [Para 4]
Bhalinder Singh @ Raju Vs. State of Punjab, 1994(1) Crimes 294 SC [Para 4]
Rampal Pithwa Rahidass Vs. State of Maharashtra, 1994(1) Crimes 1017 [Para 4]
Brij Mohan Vs. State of Rajasthan, AIR 1994 SC 739 [Para 4]
Danu alias Biswajit Pattanaik Vs. State of Orissa, 1996 Cri.L.J. 2107 [Para 4]
Shabad Pulla Reddy Vs. State of Andhra Pradesh, 1997(3) Crimes 240 (SC) [Para 4]
Rajesh Govind Jagesha Vs. Sharif Anwar Saiyyad, 2000 ALL MR (Cri) 258 (S.C.)=2000 Cri.L.J. 380 [Para 4]
Sameer Hasan Shaikh Vs. The State of Maharashtra, 2002 ALL MR (Cri) 1030 [Para 4]
Rajeshkumar Babulal Sharma Vs. State of Maharashtra, 2002 ALL MR (Cri) 19 [Para 4]
Shyam Singh Vs. State of U. P., 2003(1) Crimes 89 [Para 4]
Dil Bahadur Tamang Vs. State of Sikkim, 2003(1) Crimes 371 [Para 4]
Sheo Raj Vs. State, 1964(2) Cri.L.J. 1 [Para 4]
Sayed Mohammed Owais Vs. State of Maharashtra, 2002 ALL MR (Cri) 2472 [Para 4]
Bhaggiram Vs. State of Madhya Pradesh, 1982 Cri.L.J. 106 [Para 4]
Fagu Das Vs. State of Orissa, 1996 Cri.L.J. 2245 [Para 4]
Wakil Singh Vs. State of Bihar, AIR 1981 SC 1392 [Para 4]
State of U. P. Vs. Jageshwar, AIR 1983 SC 349 [Para 4]
Daya Singh Vs. State of Haryana, 2002 Cri.L.J. 268 [Para 5]
Malkhansingh Vs. State of Madhya Pradesh, 2003 Cri.L.J. 3535 [Para 5]

JUDGMENT

JUDGMENT: - Appeal No.468 of 2004 is by accused No.3 Shailendra who was accused no.3 and Criminal Appeal No.469 is by Vinod who was accused no.1 in Sessions Trial No.135 of 2003. These accused were tried along with 2 other accused Lokesh Pardhi and Raju Bahekar. The trial resulted in acquittal of other accused and the appellants were convicted for the offence punishable under Section 459 r/w Section 34 of the Indian Penal code and sentenced to suffer R.I. for 5 years and fine of Rs.5,000/- and default sentence for S.I. for one month.

2. The Judgment of conviction and sentence is challenged on the grounds namely:

(1) that the identification during the identification parade was suspicious and cannot be used to corroborate the identification of the accused before the Court;

(2) the identification of accused by witnesses even before the Court cannot be trusted being corroborated with unreliable identification parade;

(3) the identification parade was vitiated because there was publicity of photographs of the accused persons before the identification parade was conducted.

(4) Features of the accused or any other description thereby fixing the identity of the accused was not given by the witness Suresh Borole.

(5) That the contradictions or variations in the statement of PW-4 Suresh Borole about the place where he was sleeping when the dacoits entered his house creates suspicion about truthfulness of his testimony.

(6) The investigation agency was not fair;

(7) there were other accused persons who were arrested, all were in Jail when identification parade was conducted. However, the Investigating Officer did not secure their presence during identification parade though requisitioned, which results in grave doubt as to why the group of accused alone was excluded from identification parade.

(8) The other accused who were not brought before the Magistrate for identification parade were afterwards discharged by the police by applying to the Magistrate for discharge. While other two unidentified accused were tried along with appellants.

3. The case is being argued with Special emphasis on the question of identification though as much as 144 grounds in one appeal and 20 more grounds have been raised in other appeal.

4. In order to shatter the testimony of PW-4 and the Judgment pressing the conviction based on the said identification the learned Advocate for the appellant placed reliance on large list of precedents namely:

1. AIR 1981 Supreme Court 1388, Lakshman Prasad Vs. State of Bihar.

2. AIR 1987 Supreme Court 1222, Subhash and Shiv Shankar Vs. State of U. P.

3. SC Acc CrJ-437, Chandran Alias Surendran and another Vs. State of Kerala.

4. AIR 1991 Supreme Court 1468, Bollavaram Pedda Narsi Reddy and others Vs. State of A. P.

5. AIR 1992 Supreme Court 1854, State of U. P. Vs. Hardeo and others.

6. AIR 1992 Supreme Court 1438, Karam Singh alias Karmu Vs. The State by the Inspector of CBCID, Madras.

7. AIR 1993 Supreme Court 931, Tahir Mohammad, Kamad Girendra Singh and another, Badri/Singh and others Vs. State of M. P.

8. AIR 1997 Supreme Court 332, Jaspal Singh alias Pali Vs. Stare of Punjab with Darshan Singh and others Vs. State of Punjab.

9. AIR 1998 Supreme Court 1732, Shambhu Dayal Vs. Subhash Chandra and others.

10. AIR 1998 Supreme Court 3031, Ravindra alias Ravi Bansi Gohar Vs. State of Maharashtra and others.

11. SC Acc CrJ-684, Jaipal and another etc. Vs. State of U. T. Chandigarh.

12. AIR 1999 Supreme Court 1086, Vijayan alias Rajan Vs. State of Kerala.

13. 2002 ALL MR (Cri) 398, Mohemmad Yusuf Mohammed Sharif Rahim Vs. The State of Maharashtra.

14. 2002 ALL MR (Cri) 2548 (S.C.), Dana Yadav alias Dahu and Ors. Vs. State of Bihar.

15. 2003 ALL MR (Cri) 1606 (S.C.), Nirmal Pasi & Anr. Vs. State of Bihar.

16. 1982 Cri.L.J. 500, Sidha Dehury and others Vs. State.

17. 1999 Cri.L.J. 4375, Manepalli Anjaneyulu Vs. State of A. P.

18. 2000 Cri.L.J. 4552, Har Pal Singh and etc. Vs. State of U. P.

19. 1994 Cri.L.J. 1122, Latel Vs. State of M. P.

20. 1971 Cri.L.J. 974 (V 77 C 277), Pritam Singh and another Vs. The State of Rajasthan.

21. 1972 Cri.L.J. 233 (V 78 C 53), Hasib Vs. The State of Bihar.

22. AIR 1974 Supreme Court 1822 (V 61 C 331), Jamuna Chaudhary and others Vs. State of Bihar.

23. AIR 1992 Supreme Court 2100, State of Maharashtra Vs. Sukhdeo Singh and another.

24. 2002(1) Crimes 717, Allahabad High Court, Kansa alias Kanaraj Vs. State of U. P.

25. AIR 1983 Supreme Court 367, Mohd. Abdul Hafeez Vs. State of Andhra Pradesh.

26. AIR 1992 Supreme Court 1871, Hardial Singh Vs. State of Punjab.

27. 1994(1) Crimes 294 Supreme Court of India, Bhalinder Singh @ Raju Vs. State of Punjab.

28. 1994(1) Crimes 1017, Rampal Pithwa Rahidass & Ors. Vs. State of Maharashtra.

29. AIR 1994 Supreme Court 739, Brij Mohan and others Vs. State of Rajasthan.

30. 1996 Cri.L.J. 2107, Danu alias Biswajit Pattanaik and others Vs. State of Orissa.

31. 1997(3) Crimes 240 (SC), Shabad Pulla Reddy & Ors. Vs. State of Andhra Pradesh.

32. 2000 Cri.L.J. 380 : [2000 ALL MR (Cri) 258 (S.C.)], Rajesh Govind Jagesha Vs. Sharif Anwar Saiyyad.

33. 2002 ALL MR (Cri) 1030, Sameer Hasan Shaikh Vs. The State of Maharashtra.

34. 2002 ALL MR (Cri) 19, Rajeshkumar Babulal Sharma Vs. State of Maharashtra.

35. 2003(1) Crimes 89, Shyam Singh & Anr. Vs. State of U. P.

36. 2003(1) Crimes 371, Dil Bahadur Tamang Vs. State of Sikkim.

37. 1964(2) Cri.L.J. 1 (Vol.69.C.N.1), Sheo Raj Vs. State.

38. 2002 ALL MR (Cri) 2472, Sayed Mohammed Owais Vs. State of Maharashtra.

39. 1982 Cri.L.J. 106 (Madhya Pradesh High Court) Bhaggiram and others Appellants Vs. State of Madhya Pradesh.

40. 1996 Cri.L.J. 2245 (Orissa High Court), Fagu Das and others Vs. State of Orissa.

41. AIR 1981 SC 1392, Wakil Singh and others Vs. State of Bihar.

42. AIR 1983 SC 349, State of U. P. Vs. Jageshwar.

5. The learned Public Prosecutor placed reliance on the following Judgments:

(1) 2002 Cri.L.J. 268, Daya Singh Vs. State of Haryana.

(2) 2003 Cri.L.J. 3535, Malkhansingh & others Vs. State of Madhya Pradesh.

6. After perusal of these judgments relied upon by the appellants, what reveals as a dictum governing the issue of identification could be summarised without discussing each Judgment. What emerges on well settled position of law after perusal and careful reading of all the precedents cited at bar by both sides is as follows:-

(a) That the identification of the accused before the Court is of prime importance.

(b) Delay in conducting identification parade or identification before the Court would constitute a ground for suspicion.

(c) Further sole reliance on test identification parade conducted during investigation would not be permissible.

(d) If the complainant or witness had in his memory the identity of the accused engraved or embossed because of the circumstances of the case, identification before the Court alone even if done after years of incident could be sufficient.

(e) Identification of unknown accused unless is supported by such engraved impression about the identity could create a suspicion.

(f) Identification during test identification parade or even before the Court shall get vitiated and would be unreliable if photographs of accused so identified were published in newspapers before such identification.

(g) Whether identification done before Court should be ultimately trusted on objectively guided opinion that the trial Court forms after hearing the evidence, and any rigid rule in this Court (respect ?) cannot be formulated or laid down, and it would depend upon facts of each case.

7. In the light of these tests, evidence of PW-4 Suresh will have to be seen. In the statement of this witness, he has coherently stated as follows:

"I had identified two persons. They are Vinod Deshmukh and Shailesh Sahare. There was identification parade at Central Jail and I had identified these two accused at the identification parade, held in Central Jail. There were 24 persons were arrayed in the row and I had identified two accused i.e. accused no.1 Vinod and accused no.3 Shailesh. The magistrate had also taken signature. The witness is shown the signature on Exhs.30 and 31. Witness identifies his signature on exhs.30 and 31."

In the cross-examination, he was put a question which is recorded in question answer form which is quoted below:

"Q. What you had noticed special when you say that you are still remembering two faces today?

Ans. They were standing in front of me".

In the statement there is reference of noticing of faces of dacoits. As they were about to attack me I had impression of these in my mind.

He was further asked and he replied as follows:

"Q. You all persons were present together?

Ans. We were present together out side took about 2 minutes to me to identify at the identification parade."

It is true that this witness has admitted in the cross-examination that photographs of the accused persons were published in the newspapers much earlier to the identification parade.

8. Now, therefore, the only question to be decided in this case is whether the identification done by the PW-4 stands to the test of inspiring confidence.

9. The learned Advocate by virtue of grounds raised in appeal and oral submissions has not been successful in assailing the fact of identification except those suggestions that the photographs were published in the newspaper. Same fact of publication of photographs will have to be assessed for its effect.

10. It is the case of the prosecution that all throughout PW-4 was consistent in saying that he had identified two accused persons who were assaulting him from his front side, while other accused had held him from his back side whom he had not seen. This statement of this witness PW-4 is thus, candid and consistent on the point of identity of two accused. Since photographs of all the accused were published, PW-4 could have conveniently identified all of them. The consistency of the statement of witness PW-4 and his identification of only two accused before the Court, sufficiently establish presence of the accused on the scene of offence.

11. The problem which this witness may have to overcome to stand to the test of truth by applying negative test is as to how could he claim to have known the names of the accused persons. This question was put to the witness which he has replied stating that upon two accused being identified, their names were proclaimed and witness thus, came to know the names of these two accused persons.

12. The crucial question, therefore, is whether the accused who were convicted were identified by the eye-witness PW-4 Suresh Borole whose house was subjected to the dacoity.

13. Thus, if the Court could gather from the demeanour of the witness that the witness is giving a truthful version and that the statement of the witness about the identity of the accused is reliable on the basis of permanent engravement of the image of the accused, there is no hurdle whatsoever in relying upon such testimony whereby the witness proves the identity of the accused as the person involved in the offence.

Such a reliance is possible more particularly when there are no grounds demonstrated, suggested or proved on record to attribute any motive to the witness for falsely involving the accused in the offence thereby it becomes a case of unimpeached revealing of the identity of the accused. In the present case, the testimony of witness Suresh Borole stands to the test of trustworthiness for the candidness and that he has made no efforts to pretend to identify whatsoever the accused than those who were affront and were assaulting him.

14. The identification being crux of the matter and being proved, there are no reasons as to why the prosecution witness should not be relied upon.

15. Another limb of argument of learned Advocate for the appellant needs to be dealt with which pertains to offering limited number of accused persons for identification parade and omitting other two who were later in time discharged. This argument on its face seems to be sensible. However, considering the fact that all throughout witness Suresh claimed that he was able to identify two accused, further that on the date of identification parade, he identified the appellants, upon completion of identification parade, further effort of conducting additional identification parade, in order to isolate other accused became unnecessary when according to the prosecution the modus operandi used by other unidentified accused matched with one applied by accused in the present case, it was further rendered wholly unnecessary to find a fault with the identification parade by omitting other accused persons to take further identification parade. Had it been a case that the present appellants too were not identified, yet the prosecution may have preferred to lodge a charge-sheet against them by omitting other accused who were not subjected to identification parade, this would have led to possible conclusion that the investigating machinery was or had bias against a group of accused persons or has reasons to favour another group of unidentified accused.

16. Having dealt with the main objection raised by the accused appellants, which squarely answered all the issues raised by the defence, it would not be necessary to deal with other facts raised and agitated by the appellants.

17. This Court, in the result, reaches the conclusion that the Judgment of the Trial Court in convicting the appellants is based on the sound reasons and does not call for interference and the appeal deserves to be dismissed. Appeal, is therefore, dismissed.

Appeal dismissed.