Tuesday, 10 May 2016

Whether identification before court for first time without test identification parade can be relied on?

In order to find answer, the main thrust would be an answer to the question as
to whether evidence of a witness in court to the identity of the accused from before is
trustworthy or not. In case the answer is in the affirmative, the fact that no such
Parade was held would not in any manner affect the evidence in the court in relation
to identity of the accused. But however, such an evidence is not free from doubt, the
same may be very material while appreciating the evidence of identification in court.
Evidence of identification of an accused in a court by a witness is substantive
evidence whereas that of identification in TIP is though a primary evidence but not
substantive one and the same can be used only to corroborate identification of the
accused by a witness in a court. The identification parades are held during the courseof investigation, ordinarily at the instance of the Investigating Agency for the purpose
of enabling the witnesses to identify either the properties, which are the subject matter
of alleged offence or the accused persons involved in the offence so as to provide it
with materials to assure itself if the investigation is proceeding in the right direction
and the person, whom it suspects to have committed the offence were the real
culprits. Failure to hold TIP, does not make the evidence of identification in court
inadmissible, rather the same is very much admissible but ordinarily identification of
an accused by a witness for the first time in court should not form basis of conviction,
the same being from its very nature, inherently of a weak character, unless it is
corroborated by his previous identification in TIP. The previous identification in TIP is
a cheque valve to the evidence of identification in a court of an accused by a witness
and the same is rule of prudence and not law. In exceptional circumstance evidence
of identification for the first time in court without the same being corroborated by
previous identification in TIP can form the basis of conviction. The aforesaid
proposition of law has been laid by the Hon'ble Supreme Court in a case of Dana
Yadav @ Dahu and Ors. vs. State of Bihar [(2007) 7 Supreme Court Cases 295]
and also in a case of Mohd. Kalam @ Abdul Kalam [(2008)11 Supreme Court
Cases 352}
JHARKHAND HIGH COURT
Cr. Appeal (D.B.) No. 587 of 2007

Ganesh Singh, son of Shri Chotan Singh, 
 Versus
 The State of Jharkhand 

P R E S E N T
HON’BLE MR. JUSTICE R.R. PRASAD
 HON’BLE MR. JUSTICE PRAMATH PATNAIK
Citation;2016 CRLJ1572 JHARKHAND

 By Court: All the four criminal appeals, since arising out of the same judgment of
conviction and order of sentence, were heard together and are being disposed of bythe common judgment.
2. All the four appellants were put on trial along with one Santosh Yadav, in
Sessions Trial No.123 of 2005 on the charge of kidnapping Kamal Kumar Kedia
(P.W.11) for the purpose of ransom in furtherance of their criminal conspiracy. The
court, having found all of them, except Santosh Yadav, guilty, convicted them for the
offence punishable under Sections 364A and 120B of the Indian Penal Code vide
judgment dated 23.4.2007 and sentenced each of the appellant vide its order dated
24.04.2007 to undergo rigorous imprisonment for life and to pay fine of Rs.20,000/- for
the offence under Section 364A of the Indian Penal Code and in default to undergo
further rigorous imprisonment for one year. No separate sentence was passed under
Section 120B of the Indian Penal Code.
3. The case of the prosecution is that on 25.04.2005 at about 5-6 A.M., Umkant
Rana, the informant (P.W.1), Kamal Kumar Kedia, the victim (P.W.11), Satyanarain
Kedia, father of the victim (P.W.1) and Ashok Jain (P.W.5), left home for morning walk
and when they reached near Kedia Factory situated at Teliya village, they saw one
Commander Jeep coming from the opposite direction. At that point of time, Kamal
Kumar Kedia was walking along with Umakant Rana, whereas Ashok Jain (P.W.5)
and Satyanarain Kedia (P.W.2) had proceeded 20 to 25 yards ahead. As soon as the
Commander Jeep came near Kamal Kumar Kedia and Umakant Rana, 4 to 5 persons
got down from the vehicle and made Kamal Kumar Kedia and Umakant Rana to sit
forcibly on the Commander Jeep. The miscreants, got faces of both the persons
covered. After taking them one kilometer away, they made Umakant Rana, the
informant (P.W.1) to get down from the vehicle and proceeded ahead taking Kamal
Kumar Kedia along with them. After going to some distance, they made Kamal
Kumar Kedia to get down from the vehicle and started taking him on foot. When they
reached to a hillock, they uncovered the face of Kamal Kumar Kedia and allowed him
to take some rest. In the night, they left that place and brought him to another hillock.
Thereafter, they took him to a mine and then to thatched house where the miscreants
got a letter of ransom (Ext.3) written by him. Meanwhile a telephonic call was made to
the in-laws of Kamal Kumar Kedia by which they came to know that Kamal Kumar
Kedia has been kidnapped for ransom. The father-in-law of Kamal Kumar Kedia
informed about it to Pradeep Kumar Kedia (P.W.12), brother of Kamal Kumar Kedia
and requested him to go and have negotiation with the miscreants. Pradeep Kumar
Kedia (P.W.12) went to a place and had had talk with the miscreants whereby it was
agreed that Rs.6,00,000/- would be paid. Thereupon, P.W.12 returned back and after
manging the money, he along with P.W.10-Mahesh Periwal went to give money to the
miscreants. When they reached near a place Innerva, the miscreants by riding
motorcycle, came and took away the money. After receiving the money, Kamal Kumar
Kedia was let off by the miscreants.
4. Meanwhile, S.I. Abhay Kumar Sinha (P.W.13), when received such information,
came at Jai Durga Iron Factory where he recorded the fardbeyan (Ext.4) of UmakantRana (P.W.1). He narrated the said fact about kidnapping of Kamal Kumar Kedia,
by some miscreants, when he as well as Satyanarain Kedia and Ashok Jain had gone
to take morning walk. Upon it, a formal first information report (Ext.5) was drawn
against unknown.
5. After registering the case, the I.O. when did get some clue that it may be
handiwork of one Tulsi Yadav and his gang, raided the house of Tulsi Yadav from
where Raju Rabidas, Tulsi Yadav and Ganesh Singh, Maonj Kumar Yadav and
Suresh Paswan were arrested. During raid, there was shoot out from both the side,
as a result of which, one miscreant, namely, Dayanand Rana was killed killed. The
police did recover a sum of Rs.4,20,000/-. For the the said occurrence, another case
was lodged, which was registered as Koderma P.S. Case No.222 of 2005 under
Sections 147, 148, 149, 353, 307 of the Indian Penal Code and also under Sections
25(1-b),a, 26, 27, 35 of the Arms Act. The police during investigation, did also find
the involvement of Sanjay Yadav, who though at the relevant point of time, was in
custody in connection with other case.
6. After completion of the investigation, the police submitted charge sheet against
these appellants and also against Suresh Paswan, Manoj Kumar Yadav and Sanjay
Yadav. Upon which, cognizance of the offence was taken.
7. After the commitment of the case, when the appellants and also the aforesaid
persons were put on trial, the accused, Suresh Paswan and Manoj Kumar Yadav
escaped from the custody and thereby, these appellants named above and Sanjay
Yadav faced trial.
8. During trial, the prosecution examined altogether 13 witnesses. Of them,
Umakant Rana-the informant (P.W. 1), in his evidence has testified in the same
manner, as he has made statement in the fardbeyan. P.W.2-Satyanarain Kedia, father
of the victim, has also testified to the effect that while they had gone to take morning
walk, the miscreants came on a Commander Jeep and took away his son Kamal
Kumar Kedia and Umakant Rana with them, but subsequently, the miscreants had let
off Umakant Rana whereas they took his son Kamal Kumar Kedia with them. The
witness, in course of evidence, did identify Santosh Yadav, Tulsi Yadav, and Sudesh
Paswan, as the persons, who on the point of gun, kidnapped his son Kamal Kumar
Kedia. P.W.-3 Kali Yadav, P.W.6.-Sunil Agarwal and P.W.9 Chhotu Yadav were
tendered for cross examination whereas P.W.7 Jagdish Singh has been declared
hostile. P.W.4 Sriram Ram, a Police Inspector, has testified that when he along with
other members of the police party, raided the house of Tulsi Yadav to apprehend Tulsi
Yadav, the miscreants resorted to firing from the inside of the house. They also
resorted to cross firing during which, one of the miscreants, namely Dayanand Rana
died. They succeeded in apprehending five persons including the appellant Raju
Rabidas. P.W.5- Ashok Jain who had also gone to take morning walk along with
P.W.1 and P.W.11-the victim, has testified that while they had gone to take morning
walk, Kamal Kumar Kedia was kidnapped by the miscreants. P.W.10 -Mahesh Periwaland Kamal Kumar Kedia (P.W.11) did testify that when Kamal Kumar Kedia was
kidnapped by some miscreants, a telephonic call was received by the father-in-law of
Kamal Kumar Kedia, who asked brother of Kamal Kumar Kedia, namely, Pradeep
Kumar Kedia (P.W.12) to go and pay the amount of ransom. Upon which, P.W.10 and
P.W.12 went there and gave Rs.6,00,000/-.
9. After the closure of the prosecution case, when the appellants were questioned
under Section 313 of Cr.P.C. about the incriminating evidences/materials appearing
against them, they simply denied.
10. Thereupon, the trial court, having placed its implicit reliance on the testimonies
of P.W.2-Satyanarain Kedia, P.W.11- Kamal Kumar Kedia and P.W.-12 Pradeep
Kumar Kedia, while acquitting Santosh Yadav, recored the judgment of conviction and
sentence, as aforesaid, against all these appellants, named above, which is under
challenge.
11. Mr. N.K. Prasad and also Mr. H.K. Shikarwar, learned counsel appearing for
the appellants submits that though P.W.2, P.W.11 and P.W.12 have identified the
appellants, but that identification made in the court was for the first time, as the
appellants had never been put on TIP before the witnesses. In that event, the factum
of identification remains uncorroborated. Furthermore, trustworthiness of the
witnesses gets shattered when they have admitted, in their evidences, that the
miscreants, at the time of kidnapping Kamal Kumar Kedia, had muffled their faces
and also at the time of taking money, when P.W.12 had gone along with P.W.10 to
give money to the miscreants and thereby they never claimed before the I.O. that they
had identified the miscreants and thereby, it becomes quite obvious that they were not
in a position to identify them and, hence their testimonies are not worth reliable, but
the learned trial court did not take into account this aspect of the matter and thereby
committed illegality, in recording the judgment of conviction and order of sentence
against these appellants.
12. In this regard, it was further pointed out that the trial court, while recording the
finding of guilt, has also taken into account of the fact that the money had been
recovered from the possession of all these appellants, but the recovery of the money
was not in connection with this case, rather it was in connection with other case and
further what it appears from the evidence of the I.O.-P.W.13, that the money, which
had been recovered from the house of the Tulsi Yadav was never the subject matter
of the offence of ransom, as according to the I.O., the money, which had been
recovered, never bearing the word 'PK' whereas as per the evidence of P.Ws.10 and
11, they had put the word 'PK' over almost all the currency notes and, therefore, the
money recovered from the possession of the appellants cannot be taken to be the
subject matter of present case.
13. As against this, Mr. Pankaj Kumar and Mr. Mukesh Kumar, learned APP
appearing for the State submits that admittedly, the witnesses P.Ws.2, 11 and 12
had identified the appellants for the first time in a court, as the appellants had neverbeen put on TIP. But not putting the appellants on TIP will hardly make a dent in the
prosecution case as it is identification in a court, which is substantive evidence and
not the identification made during TIP. Under the circumstances, the court is
absolutely justified in recording the judgment of conviction and order of sentence,
which needs no interference.
14. We have already noticed the case of the prosecution. On the date of
occurrence, Kamal Kumar Kedia (P.W.11) had gone for taking morning walk along
with the informant-Umakant Rana (P.W.1), Satyanarain Kedia (P.W.2) and Ashok Jain
(P.W.5). During that course, Kamal Kumar Kedia (P.W.11) was walking along with
Umakant Rana whereas Satyanarain Kedia and Ashok Jain proceeded 20 to 25
yards ahead. At that point of time, all of them saw a Commander Jeep coming from
the opposite direction and as soon as, they reached near Kamal Kumar Kedia and
Umakant Rana, five to seven miscreants jumped down from it and made both Kamal
Kumar Kedia and Umakant Rana to sit on a Commander Jeep forcibly.
15. Further case of the prosecution is that when ransom amount of Rs.6,00,000/-
was paid, the miscreants let off Kamal Kumar Kedia. Subsequently, a sum of
Rs.4,20,000/- was recovered when a raid was laid in the house of Tulsi Yadav.
During that course, Tulsi Yadav and men of his gang resorted to firing upon the police
party. In retaliation when cross firing was made by the police, one miscreant died, for
which, a separate case was lodged. When the appellants were put on trial, P.W.-2-
Satyanarain Kedia, father of the victim, did identify the appellants- Santosh Yadav,
Tulsi Yadav and Sudesh Paswan, though Santosh Yadav, at the relevant point of
time, when the offence was committed, was in custody in connection with other case.
16. Likewise, P.W.11-Kamal Kumar Kedia identified Manoj Kumar Yadav, Raju
Ravidas and Santosh Yadav in course of evidence whereas P.W.2, Pradeep Kumar
Kedia, who had gone to pay ransom amount, did identify all the appellants.
Admittedly, the appellants, who were identified by the witnesses in course of trial, had
never been put on TIP.
17. Under the circumstances, the question does arise as to whether the
testimonies of the witnesses, particularly P.W.2, P.W.11 an P.W.12 are worth reliable
so far as identification of the appellants are concerned?
18. In order to find answer, the main thrust would be an answer to the question as
to whether evidence of a witness in court to the identity of the accused from before is
trustworthy or not. In case the answer is in the affirmative, the fact that no such
Parade was held would not in any manner affect the evidence in the court in relation
to identity of the accused. But however, such an evidence is not free from doubt, the
same may be very material while appreciating the evidence of identification in court.
Evidence of identification of an accused in a court by a witness is substantive
evidence whereas that of identification in TIP is though a primary evidence but not
substantive one and the same can be used only to corroborate identification of the
accused by a witness in a court. The identification parades are held during the courseof investigation, ordinarily at the instance of the Investigating Agency for the purpose
of enabling the witnesses to identify either the properties, which are the subject matter
of alleged offence or the accused persons involved in the offence so as to provide it
with materials to assure itself if the investigation is proceeding in the right direction
and the person, whom it suspects to have committed the offence were the real
culprits. Failure to hold TIP, does not make the evidence of identification in court
inadmissible, rather the same is very much admissible but ordinarily identification of
an accused by a witness for the first time in court should not form basis of conviction,
the same being from its very nature, inherently of a weak character, unless it is
corroborated by his previous identification in TIP. The previous identification in TIP is
a cheque valve to the evidence of identification in a court of an accused by a witness
and the same is rule of prudence and not law. In exceptional circumstance evidence
of identification for the first time in court without the same being corroborated by
previous identification in TIP can form the basis of conviction. The aforesaid
proposition of law has been laid by the Hon'ble Supreme Court in a case of Dana
Yadav @ Dahu and Ors. vs. State of Bihar [(2007) 7 Supreme Court Cases 295]
and also in a case of Mohd. Kalam @ Abdul Kalam [(2008)11 Supreme Court
Cases 352}
19. Now the question does arise as to whether P.Ws, 2, 11, 12 are trustworthy on
the point of identification?
20. We have already noted the fact, as has been testified by P.W.1 that in course
of walk, P.W.1 was along with the victim-Kamal Kumar Kedia (P.W.11) whereas
Satyanarain Kedia (P.W.2) and Ashok Jain (P.W.5) were quite ahead of about 20 to
25 yards. As per the evidence of P.W.1, the miscreants, who, got down from the
vehicle and made P.W.1 and P.W.11 to sit on the vehicle forcibly, had covered their
faces and in that event P.W.1, in his evidence, did testify that he was not able to
identify them. If P.W.1 was not in a position to identify the miscreants, then how
P.W.2, who was quite away from the miscreants, would be able to identify the
miscreants, when they had covered their faces. Similarly, P.W.12-Pradeep Kumar
Kedia, who have identified all the appellants, during his evidence, would not have
been in a position to identify the appellants, as he, in his cross examination, has
admitted that he had made statement before the police that the miscreants, who had
come to take money, had covered their faces. That apart, P.W.10-Mahesh Periwal,
who was along with the P.W.12, at the time of giving money, was not able to identify
the appellants, as according to him, the miscreants had covered their faces. In such
event, we do not find any of the witness-P.W.2, P.W.11 and P.W.12 trustworthy.
21. Further, we may record it that it is never the case of the prosecution that the
ransom amount, which was paid, was seized from the possession of the appellants in
connection with this case. As per the evidence of P.Ws. 10 and 12, they have put the
word 'PK' over the currency notes before giving it to the miscreants, but the money,
which was recovered from the house of one of the appellants, does not seems to havebeen bearing the said word 'PK', which would be evident from the evidence of the
Investigating Officer, who did testify that the currency notes, which had recovered
from the house of one of the appellants, were never bearing the word 'PK'.
22. The trial did not take into account all these aspects of the matters, in right
perspective and, thereby, committed illegality in recording the judgment of conviction
and order sentence as aforesaid, which is hereby set aside.
23. In the result, all these appellants are acquitted of the charges and are
discharged from the liabilities of their bail bond. So far appellant No.1- Ganesh Singh
is concerned, who is in custody, is directed to be released forthwith, if not wanted in
any other case
24. Accordingly, all these four appeals are allowed.

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