2002 Supreme(AP) 1085

Andhra Pradesh High Court
Judges : B.N.AGRAWAL
DANA YADAV and DAHU - Appellant
Versus
State Of Bihar - Respondent
Decided On : 09-13-02

Headnote:

Criminal Law - Criminal Trail – Indian Penal Code,1860 - Sections 307/ 149 and 436 - Sentenced - Prosecution Case – Evidence Act - Section 9 of the evidence Act - Petitioner (PW. 14), who was worker of Revolutionary group of Forward Bloc, along with his companions was undertaking a padyatra from which was led by their leader - In evening of they held a meeting at Guraru and after same was over PW14 along with 150 workers went to Village Karma for night halt where they stayed in house of one (PW. 12) and after taking dinner when some of them were sitting inside Baithaka and others outside, at about , they heard slogans coming from towards south of village - In meantime, nearly 150-200 members of naxalite group came, surrounded house of PW12, amongst whom accused and appellant were carrying guns and pointing towards prosecution party saying "be careful and raise your hands" whereupon out of fear some of members of prosecution party went inside house and closed door from within - Heard sounds of bullet firing and bomb explosion and house in which they were hiding themselves was set on fire - When members of prosecution party found that they were exposed to risk of being roasted alive as a result of fire, they came out of house and at that point of time the accused persons surrounded them and took them to south-eastern direction where they were forced to sit - Out of members of prosecution party, (PW. 1) were taken to eastern direction by appellants and besides accused - Out of them appellants Bind apart from accused whereas PW1 was inflicted injuries on head by pharsa but he managed to escape - Appellants along with eight other named accused persons and several other unknown were alleged to have surrounded other members of prosecution party and assaulted Bal (PW. 8), (PW. 4) and (PW. 12) who received injuries – Accused persons took to their heels - Motive for occurrence disclosed was that members of prosecution party had undertaken padyatra against terror spread by the naxalites - Stating aforesaid facts, fardbayan of informant (PW-14) was recorded by Sub-Inspector of Police on same day at , in t village on basis of which formal first information report was drawn up against 14 named accused persons, including appellants, excepting and police, after registering case, took up investigation, during course of which appellant was also made accused in case and on completion thereof, submitted charge sheet, on receipt whereof learned magistrate took cognizance and committed 14 accused persons, including appellants, to Court of Sessions to face trial – Held, Court should not form basis of conviction, same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in test identification parade or any other evidence - Previous identification in test identification parade is a check valve to evidence of identification in court of an accused by a witness and same is a rule of prudence and not law - In exceptional circumstances only, as discussed above, evidence of identification for first time in court, without same being corroborated by previous identification in test identification parade or any other evidence, can form basis of conviction - Ordinarily, if an accused is not named in first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of accused before police, but to this general rule there may be exceptions as enumerated above - Court view of foregoing discussion, in our opinion, High Court has not committed any error in upholding convictions of appellant Nos. 1, 2, 4, 6 and 7 and sentences awarded against them, consequently their appeals fail and same are appellant No. 3 is allowed, his convictions and sentences are set aside and he is acquitted of all charges - Appellant is directed to be released forthwith, if not required in connection with any other case – Appeal Dismissed .