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IN THE HIGH COURT OF ALLAHABAD
VIRENDRA KUMAR SRIVASTAVA, J.
Kamlesh - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 181 of 1996
Decided On : 19-01-2021
Identification of the accused by the witnesses is a substantive piece of evidence. The evidence of identification parade has only corroborative value. The prosecution must prove that the accused were not known to the witnesses prior to the occurrence and that they had sufficient opportunity to see and identify the accused. Delay in conducting the identification parade and non-production of important witnesses can create doubt in the prosecution's case. Non-recovery of incriminating articles and acquittal of the accused from related offences can also cast doubt on the prosecution's case.
Fact of the Case:
The appellant, Kamlesh, was convicted and sentenced for offences under Section 392 and Section 397 of the Indian Penal Code (IPC) for looting sales money from a petrol pump. The prosecution's case was based on the identification of the accused by the witnesses. The appellant was not named in the FIR and no identification marks or special characteristics of the accused were mentioned. The prosecution failed to produce important witnesses and did not explain the delay in conducting the identification parade. The appellant was acquitted as the prosecution failed to prove its case beyond reasonable doubt.
Finding of the Court:
The court examined the evidence presented by the prosecution and found it to be doubtful and unreliable. The identification of the accused by the witnesses was not supported by any description or identification marks. The delay in conducting the identification parade and the non-production of important witnesses created further doubt in the prosecution's case. The court emphasized that the evidence of identification before the court is substantive, while the evidence of the identification parade is weak and only has corroborative value. The court also highlighted the importance of proper and sufficient opportunity for witnesses to see and identify the accused. The court referred to precedents that emphasized the need for clear and reliable evidence of identification in cases where the accused were unknown to the witnesses. The court concluded that the prosecution failed to establish its case against the appellant.
Ratio Decidendi: The court held that the evidence of identification before the court cannot be relied upon if the accused were shown to the witnesses prior to the identification parade. The court also emphasized the need for proper and sufficient opportunity for witnesses to see and identify the accused. The court further held that the prosecution must prove that the accused were not known to the witnesses prior to the occurrence and that they had sufficient opportunity to see the accused and identify them.
Result: The court set aside the conviction and sentence of the appellant and acquitted him. The appellant was directed to furnish a personal bond and sureties before the trial court. The bail bond of the appellant was cancelled and the sureties were discharged.
JUDGMENT :
1. The instant criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), has been preferred against the judgment and order dated 22.04.1996, passed by Ist Additional Sessions Judge, Unnao, in Sessions Trial No.191 of 1989, arising out of Case Crime No106 of 1988, P.S.-Achalganj, District-Unnao, whereby the appellant-Kamlesh (hereinafter referred to as appellant) has been convicted and sentenced for offence under Section 392 I.P.C. for seven years rigorous imprisonment and for offence under Section 397 I.P.C. for seven years rigorous imprisonment with further direction that both the sentences of the appellant shall run concurrently.
2. The prosecution case, in brief, is that Sakur Ahmad (P.W.-1) informant, was carrier of sales money from Kannaudia Petrol Pump, situated at Azad Marg Crossing, Kanpur, to the office of the firm where he was posted. On 21.07.1988, at about 8:30 a.m. he had come to the Kannaudia Petrol Pump by scooter Super Bajaj bearing registration No.UMO 257, provided by the said firm to collect the sales money and he received Rs.21,100/- from Ghanshyam Srivastava (Cashier), kept it in diggie (side luggage box) of scooter and locked it. As he started the scooter to proceed towards Kanpur, three unknown persons, who were carrying with countrymade pistol and bombs, appeared there. One of them fired by his countrymade pistol with shouting that if anybody will move, he will kill all the persons, present at the spot, including informant (P.W.-1). Ghanshyam Srivastava (Cashier), Jagdamba Prasad Yadav (Manager), Sukhram (Betel shopkeeper) (P.W.-3), Pramod Kumar Singh (Truck Driver) became afraid and maintained silence due to fear. One of the said person (criminal) started the scooter of the informant and rest persons (other criminals) rode on rear seat of the scooter and fled away with cash, kept in scooter, towards Lucknow.
3. Written information of the occurrence (Ext.-Ka-1), prepared by Ghanshyam Srivastava (cashier) on the dication of Sakur Ahmad (P.W.-1), was filed at P.S.-Achalganj on 21.07.1988, which was entered in G.D. report (Ext.-Ka-4) by Head Constable Purushotam Narayan Tandon (P.W.-7), who also prepared Chik F.I.R. (Ext.-Ka-3) and registered the case as case crime No.106 of 1988 under Sections 392 and 397 I.P.C. against three unknown persons. Investigation of the case was entrusted to S.I. S. B. Singh (P.W.-11), who reached at the place of occurrence, took into his custody blank cartridges, prepared a recovery memo (Ext.-Ka-2) and also prepared site plan (Ext.-ka-8). During investigation, he also recovered the scooter of the informant, lying in jungle in damaged condition, prepared recovery memo, handed over the scooter to the informant (P.W.-1) and also prepared site plan (Ext.-Ka-11) of recovery of said scooter. During investigation, he was in training from 06.09.1988 to 14.09.1988 and in the meantime, the appellant-Kamlesh along with co-accused-Krishna Kumar @ Munsi (since deceased) were arrested on 07.09.1988 and they were put in Identification Parade Test (T.I.P.) on 22.09.1988.
4. After conclusion of investigation, S.I., S.B. Singh (P.W.11) filed charge sheet (Ext.-Ka-14) against Hari Prasad (since acquitted), Krishna Kumar @ Munsi (since deceased) and the appellant-Kamlesh before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Code, committed the case to the Court of Sessions, Unnao for trial.
5. The learned trial Court framed charges for the offence under Sections 392 & 397 I.P.C against the appellant and other co-accused to which they denied and claimed for trial.
6. The prosecution, in order to prove its case, examined Sakur Ahmad (P.W.-1), Ram Sajivan (P.W.-2), Sukhram Chaurasia (P.W.-3), Ikramool Haque (P.W.-4), Head Constable-Purushotam Naraian Tandon (P.W.-5),
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