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1997 Supreme(All) 1483
IN THE HIGH COURT OF ALLAHABAD
S. K. PHAUJDAR, N. S. GUPTA
STATE OF UTTAR PRADESH - Appellant
Versus
RAM SAROOP AND HOKAR - Respondents
G. A. 1099 Of 1980
Decided On : 12/15/1997
H.C.TIVARI, K.P.SHUKLA, Rajul Bhargava
In cases involving identification and recovery, the prosecution must prove its case beyond reasonable doubt. Any doubt or suspicion regarding the credibility of the identification proceedings or the genuineness of the recovery will benefit the accused.
Headnote:
CRIMINAL LAW - EVIDENCE - IDENTIFICATION - TEST IDENTIFICATION PARADE - DELAY IN HOLDING THE PARADE - NON-EXAMINATION OF THE MAGISTRATE HOLDING THE PARADE - EFFECT - IDENTIFICATION PROCEEDINGS - CREDIBILITY - DOUBT - BENEFIT OF DOUBT TO THE ACCUSED.
Fact of the Case:
Twelve persons stood charged in the trial which arose out of case Crimes No. 293 of 1976 and 400 of 1976, relating to police station Virendavan, district Mathura, for different offences under Sections 396 and 412, I. P. C. Eight accused persons stood acquitted while four were found guilty. Pitambar was convicted for an offence under Section 412, I. P. C. and was sentenced to R. I. for three years. Gyasi was also convicted under Section 412, I. P. C. read with Section 25 of the Arms Act and was sentenced to R. I. for four years under Section 412 and for one year under Section 25 of the Arms Act. The sentences were to run concurrently. Hokar and Ram Saroop were convicted under Section 396, I. P. C. and each of them was sentenced to R. I. for seven years. Each individual accused filed a separate appeal, as indicated above, challenging their convictions and sentences. The State has also come up in appeal against the sentence imposed on Hokar and Ram Saroop.
Finding of the Court:
The Court found that the prosecution could not prove its case either of identification or of recovery and as such the appellants, Ramsaroop, Hokar, Pitamber and Gyasi must be given the benefit thereof and upon this finding the four appeals filed by these four persons are to be allowed and the appeal by the State must be dismissed.
Issues: 1. Whether the prosecution proved its case of identification and recovery beyond reasonable doubt? 2. Whether the appellants are entitled to the benefit of doubt?
Ratio Decidendi: 1. The Court held that the identification proceedings were not credible and reliable due to the following reasons: a. Delay in holding the test identification parade, which was held three months after the incident and long six weeks after the arrest of Ram Saroop and after two weeks from the arrest of Hokar. b. Non-examination of the Magistrate holding the test identification parade, which deprived the defense of the opportunity to cross-examine him and elicit important points. c. Over-zealousness on the part of the witnesses to identify the accused persons despite their previous statements to the contrary. d. Absence of description of any features of the miscreants and absence of statement regarding what part was played by them during the dacoity. 2. The Court held that the prosecution also failed to prove the case of recovery beyond reasonable doubt due to the following reasons: a. Non-compliance with the mandatory provisions of Section 100 Cr. P. C. and Section 165 Cr. P. C. regarding the procedure to be followed during search and seizure. b. Absence of independent witnesses at the time of search and seizure. c. Failure to provide a copy of the seizure memo to the accused persons.
Final Decision: The Court allowed the appeals filed by the appellants Ram Saroop, Hokar, Pitamber, and Gyasi and set aside their convictions and sentences. The Court also dismissed the appeal filed by the State against the sentence imposed on Hokar and Ram Saroop.
( 2 ) IN the instant case the incident in question took place at the night between 31st July and 1/08/1976, at about 3. 00. The report to Virendavan police station was made at 6. 30 A. M. on 1-8-76. The place of occurrence was in village Nagla Dokri said to be 9 miles south from the police station. The F. I. R. was lodged on a very cryptic information by one Jawahar Singh and it simply stated that on the previous night at 3. 00 there had been a dacoity in the house of Kacheru Singh Jat and in that dacoity Naval Singh son of Kacheru Singh was done to death. It was further indicated that a double barrel gun of the brother of Kacheru Singh was also looted away by the dacoits. Upon this F. I. R. police recorded case Crime No. 293 at Virendavan police station under Section 396, I. P. C. and went to the spot. Subsequently, a list was submitted to the Investigating Officer by Mangi Lal, brother of Kacheru Singh, indicating the materials that were taken away by the dacoits. The list indicated, amongst other, a double barrel gun bearing No. 18494 along with 32 pieces of cartridges. The list also included silver lachcha (ankle ornament), Out of the long list these two items have been indicated here as the present convicts Pitambar and Gyasi have been found guilty for allegedly having been in possession of these materials. It was the case of the prosecution that certain pieces of silver lachchas were recovered from Pitambar and the same were identified subsequently as property stolen in the dacoity. It was stated further that the concerned gun was sbsequently recovered from Gyasi and it bore the same number as indicated in the list. For Gyasi there was no valid license for holding a fire arm and as such, in addition to the charge under Section 412, I. P. C. he was further charged for an offence under Section 25 of the Arms Act.
( 3 ) FOR Ram Saroop and Hokar it was the prosecution case that after their arrest they were put in test identification parade wherein seven witnesses had identified Ram Saroop as a dacoit participating in the dacoity and five persons had identified Hokar attributing a similar role to him. For Ram Saroop the date of arrest was 13-9-76 and the date of alleged identification in test identification parade was 31-10-76 while the dacoity was committed at the night between 31st July and Ist August, 1976. For Hokar the date of arrest was 15-10-76 and the test identification parade was held on the same date with Ram Saroop i. e. on 31-10-1976.
( 4 ) ON the question of recovery, it was the defence of Pitambar and Gyasi that no recovery as alleged was ever made
