IMPORTANT POINTS
Identification of accused by chance witnesses, who had seen them only for some fleeting moments; not giving any identification marks or disclosed special features or attributes of any of the accused persons; no incident or crime taking place in presence of the witnesses; in a TI parade taking place 25 days after arrest cannot be basis of conviction. Accused would be entitled to benefit of doubt.
In case the court reaches a conclusion that no conviction of any accused was possible and grants benefit of doubt to the appealing accused, then the non-appealing accused would also be entitled to benefit of doubt granted to similarly situated co-accused.

JUDGMENT :

Uday Umesh Lalit, J.

1. This appeal by special leave challenges the Judgment and Order dated 20.04.2010 passed by the High Court at Calcutta dismissing Criminal Appeal No.53 of 1997 preferred by the appellant herein and thereby affirming his conviction and sentence under Section 302 read with Section 34 of the Indian Penal Code (for short “IPC”).

2. According to the prosecution, on 12.07.1993 at about 6.00 AM PW6 Gautam Kheto found a dead body lying on the road in front of his house with a handkerchief tied around the neck. He reported the incident which was recorded in G.D. Book of Muchipara Police Station dated 12.07.1993, whereafter the police conducted inquest on the dead body and sent it for autopsy. The dead body was having a tattoo on the right fore-arm with “Ramchandra Singh” written in Hindi. Post-mortem examination was conducted by PW18 Dr. Rabindra Basu who opined that the death was due to strangulation and the ligature mark and head injuries were ante-mortem in nature.

3. At about 10.10 PM on the same day i.e. 12.07.1993 PW4 Jai Kishore Guin came to Muchipara Police Station and made a statement that he had heard conversation between PW3 Kailash Srivastava and PW16 Shyamlal Jadav which suggested that they had knowledge about the incident. The investigating officer could then find both PW16 Kailash Srivastava and PW6 Shyamlal Yadav on 13.07.1993. According to both these witnesses they had seen an old man and four other persons alighting from a taxi near a sweetmeat shop in Akrur Dutta Lane and that the old man, who was in drunken condition was taken away by the other persons. According to these witnesses, the number of taxi was 3157. The investigating officer then located the taxi driver, i.e. PW5 Laxminarayan Dey, who stated that in the intervening night of 11.07.1993 and 12.07.1993 five persons had boarded his taxi, four persons were younger in age, while one was an old man. According to this witness there was some altercation amongst them; that near a sweetmeat shop all of them alighted and that when they came back only four of them had returned. He thereafter dropped them at Rajabazar.

4. PW8 Saraswati Singh lodged a report on 16.07.1993 that her husband named Ramchandra Singh was missing since 11.07.1993. Two days later she was called to the police station and shown certain photographs but she could not identify the picture. After few days, she again went to the police station with her nephew who could identify the picture to be that of Ramchandra Singh, the husband of said PW8 Saraswati Singh.

5. On the strength of suspicion expressed by said PW8 Saraswati Singh the appellant Mohd. Sajjad and one Sk. Sahid @ Bablu were arrested on 09.09.1993 and 11.09.1993 respectively. Both these persons were subjected to test identification parade on 06.10.1993 in which PWs 3, 5 and 16 identified them. After completion of investigation charge-sheet was filed against the appellant and said Sk. Sahid @ Bablu for the offences punishable under Section 302 read with Section 34 IPC while three persons, namely, Mohd. Sehzada, Sheikh Kaloo and Sheikh Panchu were stated to have been absconding and declared as proclaimed offenders.

6. The prosecution principally relied upon the testimony of PWs 3, 5, 8 and 16. PW3 Kailash Srivastava in his deposition stated as under:

“I live at No.8, Gopi Lane, Bowbazar, Calcutta. I am a plumber. I know Haripada Das. He was my previous employer. I sleep at Premises No.8, Gopi Bose Lane, Calcutta. In the night of 11.07.1993 an incident took place. That night there was pain in the stomach of Haripada Das. Haripada Das lives in No.3, New Bowbazar Lane, which is close to my residence. At about 12/ 12:15 in that night a man came from Haripada and awoke me from sleep. I went to Haripada’s place with that man. Haripada told me that he should be immediately hospitalized for the pain in hisstomach. Then myself went to search out a taxi to take Haripada to Hospital. Shyamlal Yadav is a driver. Haripada Das is