The necessity of conducting a Test Identification Parade (TIP) when the accused is not previously known to the witnesses, and the impact of witness inconsistencies on the reliability of evidence.

Indermeet Kaur, J.

1. This appeal is directed against the impugned judgment and order of sentence dated 24.4.2006 and 26.4.2006 respectively wherein the appellant stood convicted under Section 308 of the Indian Penal Code, 1860 (IPC). He had been sentenced to undergo RI for 3 years and to pay a fine of Rs.1000/-, in default, to undergo RI for a period of 1 month.

2. Nominal roll of the appellant reflects that as an under trial he had undergone incarceration of 1 month; after his conviction and before he had been granted suspension of sentence he had suffered incarceration of about 3 months meaning thereby that he has suffered incarceration for a total period of more than 4 months.

3. Record shows that on 18.8.2004 DD No.11A was received in Police Station Sarai Rohilla. This was to the effect that an incident had taken place at Kalidas Marg, Nand Lal Piau, Shastri Nagar. Chuttan Singh (PW-2) had received injuries. At that time he was accompanied by his brother-in-law Vinod Singh (PW-1). The injuries sustained by PW-2 were grievous; he had sustained a fracture. No eye-witness could be found at the spot but later on Darshan Lal (PW-4) claimed to have witnessed the incident. His statement was recorded. Investigation had been marked to ASI Brijeshwar Kumar (PW-13) who, along with constable Devender Kumar (PW12), reached the spot. Appellant and co-accused persons were arrested on 27.8.2004 i.e. almost 10 days after the incident. Two persons had been charge-sheeted of whom the co-accused Ranjeet was acquitted. Arjun, the present appellant, had been convicted.

4. On behalf of the appellant arguments have been addressed in detail. It is pointed out that the identity of the appellant is in great doubt and unless and until identity of the culprit is established, criminal jurisprudence does not permit the Court to nail a person. Benefit of doubt must accrue to the appellant. Attention has been drawn to the versions of PW-1 as also PW-4; neither of them supported the version of the prosecution qua the identity of the appellant. It is pointed out that although PW-2 identified the appellant, his identification is of no value as the entire version of the prosecution was based upon a photograph/sketch of accused persons having been prepared by the police from the police dossier at the instance of PW-4 and PW-4 himself being hostile on the identity of the appellant, version of PW-2 falls flat. Even otherwise, there are inherent discrepancies in the versions of PW-1, PW-2 and PW-4. PW-4 had been set up as an eye-witness when he had not really witnessed the incident.

5. Arguments have been refuted. Learned APP for the State points out that PW-2 had identified the appellant even in his statement under Section 161 Cr.P.C. i.e. during the course of investigation; he stuck to his stand again in Court and as such his version cannot be ignored. PW-1 and PW-4 also recited the incident in the manner in which it had occurred and corroborated the version of PW-2 on all scores except the identity. The question of identity has been answered in the version of PW-2. Learned APP for the State has placed reliance upon JT 2013(8) SC 591 Md. Ishaque and Others Vs. State of West Bengal and Others. to support his submission that the version of the prosecution stands proved and time as well as place of occurrence has been established, the motive for the crime is also emanating from the version of the witnesses. Version of PW-2 that the appellant was trying to run away with the mobile phone of PW-2 when he was trying to get down along with the said boy at the bus stand is established. On all grounds the conviction of the appellant is not liable to be disturbed.

6. Arguments have been heard and record perused.

7. PW-2 was the complainant. It was on his statement (PW-2/A) that the rukka was dispatched and the present FIR was registered. He had deposed that on 18.8.2004 at about 12 noon when he along with his brother-in-law Vinod Singh (PW-1) was going to