The prosecution must provide reliable identification evidence in criminal trials; failure to do so results in acquittal.

Order :

This State appeal has been filed to challenge the judgment dated 30^th April 1999 passed in Sessions Case No.8 of 1995, 43 of 1996 (new 16 of 1997) titled State of Rajasthan v. Butaram and Ranguram.

2. By the aforesaid judgment, Butaram and Ranguram were acquitted of the charges framed against them under Sections 302, 307, 380, 396, 397, 460, 324, 325, 326, 323 and 148 read with Section 149 of the Indian Penal Code.

3. This is the case of the prosecution that in the night of 13^th September 1993 unknown persons barged into the house of Ishwar Ram Soni in the village Lunkaransar and committed robbery and murder of Babu Lal. At that time, Babu Lal and Rajendra were sleeping over the top floor of the house of Ishwar Ram Soni and Guddi, Laxmi, Bali and Shanti were sleeping on the varanda. This is also stated by the informant that Kisturi and her son Santosh along with two minor child were sleeping in one room of the house. This is the further case of the prosecution that Ishwar Ram Soni had gone to Ajmer and Madan Lal was also not present in the house on the day of occurrence. According to the prosecution, around 3:45 AM in the night of 13^th September 1993 unknown accused persons committed marpeet with Babu Lal and Rajendra and they also assaulted Bali, Guddi, Laxmi, Shanti and Kisturi and broke open the box in the house and took away valuable articles. In the occurrence, Babu Lal succumbed to the injuries on the spot and Guddi also died later on. On telephonic information given by Jagdish Prasad Pandey, the police from Lunkaransar Police Station came to the place of occurrence and Parcha Bayan of Ganpat Ram, who is the brother of Ishwar Ram Soni was recorded.

4. In the trial, the prosecution examined thirty three witnesses but Bali, Guddi, Laxmi Devi and Raju were not produced in the Court as witness. It further appears that before the trial commenced few accused persons fled away from the custody of police and only Butaram and Ranguram were put on trial. According to the prosecution, P.W.8 Kisturi and P.W.13 Shanti are the injured eye-witnesses who declined to identify Butaram and Ranguram in the Court stating that it was a dark night. The prosecution then turned to P.W.4 Kashiram, P.W.7 Santosh and P.W.9 Rajendra who were the witnesses in test identification parade.

5. At the outset, we may observe that the case of the prosecution has been substantially eroded on account of inability of P.W.8 and P.W.13 to identify the accused persons in the dock. These witnesses were however not declared hostile and cross- examined by the prosecution and, therefore, the statement given by them in the Court that it was a dark night shall bind the prosecution. In case of “Javed Masood & Anr. v. State of Rajasthan” (2010) 3 SCC 538, the Hon’ble Supreme Court has observed as under :

“20. In the present case the prosecution never declared PWs 6, 18, 29 and 30 “hostile”. Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in law that precludes the defence to rely on their evidence.”

6. As we gathered from the materials on record, there seems to be serious infirmity in conducting of the test identification parade which was conducted more than one year after the occurrence. The learned trial Judge has referred to such infirmities in the test identification parade in paragraph nos.27 and 28 of the judgment under challenge. For better appreciation of the matter under consideration, we would reproduce the same which reads as under :-

"27. There is a contradiction in the statements on oath of prosecution witness number 4 Kashiram and the police statement Exhibit D1 that when he saw the accused running in the light of the jeep, they were looking back. Two of them were bearded and on this basis he identified them. According to this witness, there was only one bearded person in the identification parade. In such a situation, if he identifies the bearded accused Buta Ram, then such identification proceedings canno