PATNA HIGH COURT
Ashwani Kumar Singh and Arvind Srivastava, JJ.
State of Bihar and Ors. – Petitioners
versus
Bachesh Kumar Singh and Ors. – Respondents
Death Reference No.2 of 2017 with Criminal Appeal (DB) No.1271 of 2016 with Criminal Appeal (DB) No.30 of 2017 with Criminal Appeal (DB) No.32 of 2017 with Criminal Appeal (DB) No.62 of 2017 with Criminal Appeal (DB) No.96 of 2017 with Criminal Appeal (DB) No.184 of 2017
Decided on 21.5.2021

IMPORTANT POINTS
(1) Conviction in a criminal trial is required to be certain and not doubtful. Burden of proof of guilt of accused is upon prosecution. It must stand by itself.
(2) Cr.P.C does not oblige investigating agency to necessarily hold a TIP. Failure of investigating agency to hold a test TIP does not have effect of weakening evidence of identification in court.
(3) Where identification of an accused by a witness is made for first time in Court, it should not form basis of conviction.
(4) When size of assembly is quite large and many persons have witnessed incident and when a witness deposes in general terms, it would be useful to adopt test of consistency of more than one witness.

Headnote:

(A) Indian Penal Code, 1860 – Sections 148, 302/149, 307/149 – Arms Act, 1959 – Section 27 – Explosive Substances Act, 1908 – Sections 3/4 – Criminal Procedure Code, 1973 – Sections 313 and 366 – Massacre – Death sentence – Informant passed away during trial and she could not be examined as a prosecution witness – FIR not only contains version of informant but also persons who reached place of occurrence, in immediate aftermath of occurrence – Appellants are not amongst them – Appellants were not known either to informant or to other villagers, who had gathered at place of occurrence in immediate aftermath of occurrence – FIR can be used only to contradict or corroborate maker of it – However, if version of a particular person has gone into making of FIR then omissions of such facts, affecting probabilities of case, are relevant on which veracity of prosecution case can be tested – Claim of identification by P.W. seems to be highly improbable – Absence of source of identification at a time of darkness coupled with his position in hay and chaff, make his claim of identification doubtful – An important fact with regard to injured witness is his delayed examination by Police – Such delay in examination by Police may not cast doubts about basic prosecution story of massacre which is admitted, but surely makes point of his identification vulnerable – Deposition with regard to appellants who have been identified by a single witness after more than nine years, apart from being isolated, lacks consistency and precision which could make testimony of a single witness sufficient for convicting accused persons in a case where size of assembly was quite large and many persons had witnessed incident – Time of occurrence was dark, site of unfortunate massacre was beset with mayhem with villagers making desperate attempts to seek refuge in a place and position in which they would remain unseen by miscreants lest they fell prey to their barbarism – In such a state of complete chaos, witnesses hiding in different corners of village have claimed to identify one or more accused persons without any indication as to source of light save torches being carried by miscreants – Seizure lists do not indicate seizure of any artificial sources of light which could have aided identification on a dark night – Dock identification was based on recollection of events which took place long back – There was no TIP – Instead of seeking their explanation with regard to incriminating material, accused persons have been asked to explain charges for which they were being tried – This sort of examination goes against essence of Section 313 of Cr.P.C. – Identification of accused persons by witnesses in court cannot be relied upon to convict them – Conviction in a criminal trial is required to be certain and not doubtful – Burden of proof of guilt of accused is upon prosecution – It must stand by Itself – In present case, on appreciation of evidence adduced during trial, there is a real and reasonable doubt as to guilt of appellants – Impugned judgment and order of sentence set aside. (Paras 109, 113, 118, 124, 149, 151, 152, 153, 154, 162, 163, 164 and 165)

(B) Criminal Law – Test Identification Parade – Purpose of TIP is to test veracity and trustworthiness of evidence of witnesses – Idea behind TIP is to test whether or not witness, who claims to have seen culprits at the time of commission of the offence is reliable and can identify culprits amidst other individuals – Identification of an accused in court of law is substantive evidence whereas evidence of identification in TIP though a primary evidence, it is not substantive one and, it can be used only to corroborate identification of accused in the court of law – If TIP is not conducted and witness identifies accused for first time in court then evidence regarding identification in court of law does not become inadmissible – Such evidence cannot be discarded on the ground that it was not preceded by TIP – However, court identification of an accused without TIP is admissible, if court finds it trustworthy – Identification of an accused for first time in court is a weak type of evidence – In a case where witness had an opportunity to notice distinctive features of accused which lends assurance to his testimony in court, evidence of identification in court for first time by such a witness cannot be thrown away merely because any TIP was not held – Cr.P.C does not oblige investigating agency to necessarily hold a TIP – Failure of investigating agency to hold a test TIP does not have effect of weakening evidence of identification in court – In appropriate cases court may accept evidence of identification in court even without insisting on corroboration – Where identification of an accused by a witness is made for first time in Court, it should not form basis of conviction. (Paras 79, 80, 83, 84 and 85)

(C) Test Identification Parade – Evidentiary Value – Ordinarily, an accused should not be convicted on testimony of witnesses identifying for first time in court without any corroboration either by previous identification in TIP or any other evidence – If there is no other evidence against accused identification in court made long after incident should not form basis of conviction as it is regarded as evidence of weak character – However, in appropriate cases, in exception to general rule, if a witness has any particular reason to remember about identity of an accused or accused is known to a witness from before, court may rely on such identification without other corroboration. (Para 91)

(D) Indian Evidence Act, 1872 – Section 134 – Number of witnesses – No particular number of witnesses shall be required for proof of any fact in a case – General principle of law is that generally conviction may be based on testimony of single witness without any corroboration, if evidence of solitary witness is fully reliable, trustworthy and inspires confidence – However, with reference to carnage cases, as they generally involve large number of victims, witnesses and accused persons, conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of incident – When size of assembly is quite large and many persons have witnessed incident and when a witness deposes in general terms, it would be useful to adopt test of consistency of more than one witness so as to remove any doubt about identity of an accused as a member of assembly in question. (Paras 93 to 99, 101 and 105)

Result: Death Reference rejected. Criminal Appeals allowed.