Saturday, 25 June 2016

When delay in holding test identification parade may be fatal to prosecution case?

 Learned counsel for the accused/respondents has cited the
decision of this Court in Siddanki Ram Reddy v. State of
Andhra Pradesh, [(2010) 7 SCC 697] wherein it was held:
“When an attack is made on the injured/deceased
by a mob in a crowded place and the
eyewitnesses had little time to see the accused,
the substantive evidence should be sufficiently
corroborated by a test identification parade held
soon after the occurrence and any delay in holding
the test identification parade may be held to be
fatal to the prosecution case.”
17. It is very clear that in the present case the incident of firing
occurred in the circumstances wherein much time was not
available for the eye-witnesses to clearly see the accused. In
such a situation, it was of much more importance that the Test
Identification Parades were to be conducted without any delay.
The first Test Identification Parade was held by PW21 after about
1½ months of the incident. The second Test Identification
Parade was conducted by PW18 after more than a year of the
incident. Even if it is taken into account that A12 was arrested
after a year and within one month thereafter the test
Identification Parade was conducted, still it is highly doubtful
whether the eye-witnesses could have remembered the faces of
the accused after such a long period. Though the incident took
place in broad daylight, the time for which the eye-witnesses
could see the accused was not sufficient for them to observe the
distinguishing features of the accused, especially because there
was a commotion created after the firing and everyone was
running to shelter themselves from the firing.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 345-346 OF 2012
STATE OF MAHARASHTRA APPELLANT(S)
:VERSUS:
SYED UMAR SAYED ABBAS & ORS. RESPONDENTS
Citation:(2016) 4 SCC735
Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been directed against
the judgment and order dated 15.9.2009 passed by the High
Court of Judicature at Bombay in Criminal Appeal No.1133 of
2003 and Criminal Appeal No.1156 of 2003, whereby the High
Court allowed the criminal appeals filed by the respondents
herein and acquitted them.
2. The brief facts necessary to dispose of these appeals are
that on 12.8.1995, at about 3.00 P.M., Rajendra Rajaram Gupta
(deceased), who was a social worker belonging to a particular
political party and had a shop in Mahim area of Mumbai, was
sitting in Ganesh festival Pandal and was busy talking with one
Rajaram Sarfare (PW6-injured eye-witness), who was the
Contractor for decoration of the Ganesh festival Pandal. As per
the prosecution story, when Rajendra Rajaram Gupta and PW-6
were talking to each other while sitting on chairs in the Pandal,
two unknown persons entered the Pandal from Kapad Bazaar
Road, opened fire on Rajendra Rajaram Gupta and pumped
many bullets in his head, chest and various parts of his body at
point blank range. Allegedly, the said two assailants were
escorted by three other persons. The firing noise created
commotion in the Pandal and while PW6 tried to run, he was
also hit by one bullet and he fell down. The assailants managed
to escape. The deceased Rajendra Rajaram Gupta was taken to
Hinduja Hospital immediately, where he was declared dead on
arrival. The FIR came to be immediately lodged at 4:15 P.M. by
one eyewitness Rajesh Tanaji Akre (PW-5), who happened to
have seen the incident from the first floor gallery of his
residential building which was abutting to the said Pandal.
3. After investigation, charges were framed against 13
accused persons (Accused Nos.1 to 13) under Sections 302, 307,
120B read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”) and Sections 25, 27, and 29 of
the Arms Act, 1959. Accused Nos.2, 5, 6, 8, 10 and 13 had
either died or were absconding during the trial. Hence, the trial
proceeded against the remaining accused i.e. Accused Nos.1, 3,
4, 7, 9, 11 and 12.
4. The Trial Court by its judgment and order dated
23.07.2003 convicted Accused Nos.1, 3, 4, 9 and 12 for offences
punishable under Sections 302 and 307 read with Section 120-B
of the IPC. Accused Nos.1, 3, 4 and 12 were also convicted for
the offence punishable under Section 27 of the Arms Act,
whereas Accused No.9 was also convicted for the offence
punishable under Section 25 of the Arms Act. Original Accused
Nos.7 and 11 were acquitted of all the charges. The High Court
vide the impugned judgment acquitted all the accused of all the
charges by overturning the judgment of the Trial Court.
5. The State of Maharashtra has filed these appeals against
the acquittal of Accused Nos.1, 3, 4, 9 and 12. Learned
Additional Government Advocate appearing for the State of
Maharashtra has inter alia reiterated that the judgment of the
Trial Court is well reasoned and well considered. The learned
counsel for the respondents have rebutted the submissions of
the appellant by relying upon the judgment of the High Court
pressing that it had gone deeper into the case that the
prosecution could not bring home the charges levelled against
the accused.
6. The Trial Court convicted the accused respondents on the
basis of the testimonies of five eye-witnesses - Hemant
Parshuram Akre (PW1), Ganesh (PW4), Rajesh Tanaji Akre
(PW5), Rajaram Sarfare (PW6) and Kishor Maniklal Damaniya
(PW7), out of which PW6 was the injured eye-witness. The Trial
Court found their depositions to be corroborative of each other
and also in tandem with the testimonies of PW18 and PW21, the
Special Executive Magistrates, who conducted the Test
Identification Parade of the accused. The Trial Court held that it
was conclusively established by the Test Identification Parade
and eye-witness testimonies that A1 and A12 had fired on the
deceased. The recovery of the weapon along with the ballistic
report further strengthens the conclusion. The Trial Court found
that the prosecution has proved its case beyond reasonable
doubt and hence the accused were convicted of the offences
charged after being found guilty.
7. However, the High Court pointed out serious lacunae in the
above said evidences and hence the conviction order was set
aside and the benefit of doubt was given to the accused. The
High Court is of the view that the Trial Court had placed
unwarranted reliance on the Test Identification Parades in
arriving at the guilt of the accused when the same suffered
major discrepancies along with the inconsistencies of the
depositions of the eyewitnesses to that of the injured eyewitness’
testimony.
8. We have perused the documentary and oral evidences on
record and gone through the submissions of both - the appellant
State as well as the respondents. We shall now examine each
and every contention in light of the arguments adduced before
us in the Court. In our considered view, the main issue in the
case is whether the identity of the accused was properly
established with the aid of the testimonies of the eyewitnesses
and whether the Test Identification Parades were conducted
properly. All the other evidences are secondary and need to be
examined only if the accused can be linked to the crime. To
decide the same we shall analyse the depositions of the eyewitnesses.
9. There are five eye-witnesses, including the injured eyewitness.
We shall peruse their statements one by one. PW1
allegedly recognized two persons, who shot at the deceased and
the injured PW6, as A1 and A12, but his evidence suffers few
infirmities. He stated that he first heard some shots and then
some noise like bursting of firecrackers and saw the accused
firing at PW6 when he was running towards the Police Chowky
nearby. The major inconsistency is with respect to his deposition
regarding the Test Identification Parade. He stated that in the
Test Identification Parade held on 30.8.1995, at Arthur Road
Prison, he had identified four persons out of 10-12 persons
standing in the row. According to the prosecution, the Test
Identification Parade was conducted by PW21 (Special Executive
Officer) on 30.9.1995. Even if it is presumed that the date was
stated to be incorrect by mistake, the fact remains that PW21
deposed that he conducted 2 Test Identification Parades on that
day. In the first Parade, he placed A1 and one more accused who
died later and in the second, he placed A3 and A4 for
identification. At no point of time, 4 accused were put together
for identification for PW1 to identify out of the whole group. This
contradiction shows that it is not clear as to whether he rightly
identified the accused. Also, he stated that in another parade
held after almost a year, he identified A12. That parade was
conducted by PW18 (another Special Executive Officer). We are
aware that A12 was arrested by the first week of September,
1996 and thus the Test Identification Parade was conducted on
4.10.1996, but it is too large a gap for PW1 to have remembered
his face.
10. Also, PW1 had stated that he had seen the deceased
receiving a bullet injury on his forehead but as per the postmortem
report, there was no injury on the forehead of the
deceased as he had been attacked from behind. This makes the
testimony of PW1 even more vulnerable.
11. We now proceed to peruse the evidence of PW4 another
eye-witness, who was the son of the deceased and was sitting in
his grocery shop at the time of the incident and was making
payment to one Bhatia who was not examined by the
prosecution. Even PW4 heard the noise of bursting of some
crackers and then he could see what was happening in the
Pandal and he recognized A1 in the parade conducted by PW21
on 30.9.1995 and A12 in the parade conducted by PW18 on
4.10.1996.
12. PW5 is the first informant who stated that he witnessed the
incident while he was standing in the first floor gallery of his
building which was abutting the Pandal. He also deposed that he
had identified A1 and A12 in the Test Identification Parades
conducted by PW21 and PW18, respectively. But it is not clear
whether he could have witnessed the incident from the first floor
as the setting up of the Pandal was completed and the work of
putting tarpaulin over the Pandal was done and only the
decoration of the frill was going on. It is also pertinent to note
that PW5 deposed before the Court that he does not remember
the physical appearance of both the suspects seen by him on the
date of incident. It is doubtful whether PW5 could have
witnessed the incident in the state of commotion when everyone
was running for shelter due to firing.
13. PW6 is the injured eye-witness who sustained bullet
injuries. He deposed that he could not see any of the accused
and while he was talking to the deceased, he received a bullet
injury and fell unconscious. He stated nothing about the fact
that he was running to the Police Chowky when he got injured.
To that extent his testimony does not support the case of the
prosecution as the other prosecution witnesses stated that they
saw the accused falling down due to the injury while he was
running towards the Police Chowky.
14. The prosecution adduced the testimony of PW7 as an eyewitness,
but PW7 did not identify any of the accused/
respondents in the Test Identification Parade which can be
concluded from the substantive evidence.
15. The recovery of arms need not be discussed by us in detail
as the same has already been discussed by the High Court to
arrive at the conclusion that it is not trustworthy and
incriminating against the respondents.
16. Learned counsel for the accused/respondents has cited the
decision of this Court in Siddanki Ram Reddy v. State of
Andhra Pradesh, [(2010) 7 SCC 697] wherein it was held:
“When an attack is made on the injured/deceased
by a mob in a crowded place and the
eyewitnesses had little time to see the accused,
the substantive evidence should be sufficiently
corroborated by a test identification parade held
soon after the occurrence and any delay in holding
the test identification parade may be held to be
fatal to the prosecution case.”
17. It is very clear that in the present case the incident of firing
occurred in the circumstances wherein much time was not
available for the eye-witnesses to clearly see the accused. In
such a situation, it was of much more importance that the Test
Identification Parades were to be conducted without any delay.
The first Test Identification Parade was held by PW21 after about
1½ months of the incident. The second Test Identification
Parade was conducted by PW18 after more than a year of the
incident. Even if it is taken into account that A12 was arrested
after a year and within one month thereafter the test
Identification Parade was conducted, still it is highly doubtful
whether the eye-witnesses could have remembered the faces of
the accused after such a long period. Though the incident took
place in broad daylight, the time for which the eye-witnesses
could see the accused was not sufficient for them to observe the
distinguishing features of the accused, especially because there
was a commotion created after the firing and everyone was
running to shelter themselves from the firing.
18. In view of the discussion in the foregoing paragraphs, we
are of the considered view that the testimonies of the witnesses
suffer various infirmities and contradictions and the Test
Identification Parade was not conducted properly and was
delayed. The High Court is, therefore, correct in giving the
benefit of doubt to the accused as their identity had not been
clearly established by the prosecution.
19. Thus, in the light of the above discussion, we find no
grounds to interfere with the judgment passed by the High
Court. The appeals are, accordingly, dismissed.
…......................................J
 (Pinaki Chandra Ghose)
….....................................J
New Delhi; (R.K. Agrawal)
February 12, 2016. 
Print Page

No comments:

Post a Comment