In the absence of corroborative evidence, the identification of an accused person in a test identification parade and in court is insufficient to establish guilt beyond a reasonable doubt.

JUDGMENT :

Goverdhan Bardhar, J.

1. Challenge in the instant criminal appeal has been made by the appellant to the judgment of conviction and sentence dated 16.10.2011 passed by the Court of learned Additional Sessions Judge No. 1, Bayana (Bharatpur) [for short 'the learned trial Court'] in Sessions Case No. 35/2014 (20/13), State of Rajasthan vs. Hariom @ Laxmi Kant, whereby the learned trial Court has convicted and sentenced the accused-appellant as under:-

U/s. 302/34 IPC:

Life imprisonment and fine of Rs. 10,000/-, in default of payment of fine to further undergo one year simple imprisonment.

U/s. 394 IPC:

Ten years rigorous imprisonment and fine of Rs. 10,000/-, in default of payment of fine to further undergo one year simple imprisonment.

U/s. 429/34 IPC:

One year simple imprisonment and fine of Rs. 1,000/-, in default of payment of fine to further undergo two months simple imprisonment.

U/S. 120-B IPC:

Life imprisonment and fine of Rs. 10,000/-, in default of payment of fine to further undergo one year simple imprisonment.

2. All the sentences were ordered to run concurrently.

3. Facts of the case in nutshell are that PW-4 Sukkan submitted a written report (Ex. P1) to the SHO, Police Station ucchain (Bharatpur) to the effect that on 17/18.12.2012 in the night at about 11:30 p.m., he along with his wife Raviya and children were sleeping in village Adhiyari. The goats were tied in 'patore'. After hearing the voice of bleating of goats, he woke up and saw that 4-5 unknown thieves were indulging in untying the goats. On making hue and cry, 2-3 thieves ran away and in the meanwhile out of the two, one opened fire which hit on the chest of his wife. He along-with villagers took his wife to ucchain hospital where she was declared dead.

4. On the basis of aforesaid written report (Ex. P1) an FIR No. 267/2012 (Ex. P2) was registered at Police Station ucchain, District Bharatpur for the offences under Sections 380, 511 and 302 IPC. The police after investigation submitted charge-sheet against the accused appellant and co-accused Naima @ Naimchand for the offences under Sections 393, 302, 429 and 120B IPC in the Court concerned and investigation against co-accused Dayaram and Shamsu was kept pending under Section 173(8) Cr.P.C.

5. Learned trial court framed charges against the accused appellant for the offences under Sections 120-B, 302, 302/34, 394 and 429/34 IPC. The accused appellant denied the charges and claimed trial. The prosecution in support of its case recorded statements of twenty witnesses and twenty six documents were got exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. in defence the accused appellant did not examine any witness but two documents were got exhibited. The appellant aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence passed by learned trial court dated 16.10.2014 has preferred this criminal appeal.

6. Learned counsel for the accused appellant has argued that learned trial Court has committed serious error of law as well as of facts in convicting and sentencing the accused-appellant for the offences under Section 302/34, 394, 429/34 and 120-B IPC. The prosecution has failed to prove the guilt of the accused-appellant beyond all reasonable doubt. The witnesses of the prosecution have suppressed the genesis of the occurrence and have not corroborated the story of the prosecution. Therefore, the prosecution witnesses cannot be treated as credible and reliable witnesses. The learned trial Court failed to consider that the alleged incident had taken place at about 11:30 p.m. in the dark. The complainant failed to give any description of accused-persons regarding their age, clothes wore by them at the time of incident and their physique. There are contradictions in the testimony of PW4 Sukkan. The learned trial Court failed to consider the statement of PW11 shiv Kumar who deposed that before conducting test identification parade, the accused-appellant was