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SUPREME COURT OF INDIA
N. V. Ramana, Mohan M. Shantanagoudar, JJ.
STATE OF UTTAR PRADESH – APPELLANT
VERSUS
WASIF HAIDER ETC. – RESPONDENTS
CRIMINAL APPEAL No.1702-1706 OF 2014
Decided On : 10-12-2018
(2018) 5 SCC 790; (2011) 2 SCC 490 – Relied upon
(b) Criminal trial – Appreciation of evidence – Specific identification of four accused-respondents, from a group of 200-300 rioters, with 100% perfection; without a mention of any distinguishing marks – Seems highly improbable – Delay of 55 days in conducting TIP for two accused – In case of two other accused, no arrest or interrogation made for 6 weeks after TIP – No explanation offered for delay – Identity of accused not concealed – Post-Mortem report and F.S.L. report not compatible with each other – Even place of occurrence not ascertained with precision – No independent witness examined – Charges framed u/s 307 IPC but not substantiated – Held, prosecution has failed to link the chain of circumstances – Held, investigative lapses has fortified the presumption of innocence of accused-respondents – Accused held entitled to benefit of doubt. (Para 14, 15, 16, 19, 20, 22, 24, 25)
(2010) 3 SCC 508; (2012) 2 SCC 34 – Relied upon
Facts of the case:
Sri Chandra Prakash Pathak A.D.M (Finance and Revenue) Kanpur was shot by rioters and he succumbed to his injuries. The trial court convicted four accused u/s 302/149, 307/149 148 IPC and S. 7 Criminal Law Amendment Act. However, A1 was acquitted for charges under Sections 25 and 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive Substances Act, 1908. High Court acquitted all the accused.
Finding of the Court:
Impugned judgment is not perverse.
Result: Appeal dismissed.
JUDGMENT
N.V. RAMANA, J.
1. These appeals by special leave arise out of the common impugned judgment dated 29.05.2009, passed by the High Court of Allahabad in Criminal Appeal Nos. 1419, 1430, 1518 and 898 of 2004, whereby the High Court has reversed the judgment of conviction passed by the Additional Sessions Judge, Kanpur in Sessions Trial No. 164/2002 dated 22.01.2004 under Sections 302 read with 149, 307 read with 149, 148 IPC and Section 7 of Criminal Law Amendment Act, 1932. Whereas the High Court in Government Appeal no. 5270 of 2005 preferred by the appellant-State, has dismissed the appeal against the acquittal of accused no.1respondent (Wasif Haider) for offences under Sections 25 and 27 of Arms Act, 1959 and Sections 4 and 15 of Explosive Substances Act, 1908, while affirming the judgment dated 3.8.2005 passed by the Additional Sessions judge, Kanpur acquitting the accused no.1respondent (Wasif Haider) in Sessions Trial No. 143 and 144 of 2002.
2. Brief facts as unfolded from the prosecution story are that, while the complainant (P.W.2-S.O., P.S. Moolganj, Kanpur) along with other police personnel was on duty at the parade crossing, he came to know that a crowd of around 200-300 rioters were causing rampage and destruction at the Chaubey Gola Temple. Immediately, the complainant accompanied by the police force and A.D.M (Finance and Revenue)Sri Chandra Prakash Pathak (hereinafter referred as “the deceased”), and half a section of Provincial Armed Constabulary [“PAC”] proceeded towards scene of occurrence. Admittedly, when the deceased along with police personnel were at a distance of around 100-150 paces from Sunehri Mosque on the Nai Sarak, rioters started firing upon them resultantly injuring the deceased and his orderly, Ram Chandra. In order to control the law and order situation, the police were compelled to fire in their defense. When the police party reached the mosque, the rioters had already fled away. Subsequently, when the police party reached Chaubey Gola Temple where rioters had already looted some houses and had also committed arson. In the meanwhile, the police also received the information that the deceased had succumbed to the gunshot injuries in the hospital. Finally, the F.I.R., Case Crime No. 7 of 2001 came to be registered at 8.05P.M. on 16.03.2001 against 200300 unknown rioters.
3. On the same night, after conducting the inquest proceedings, the dead body was sent for post-mortem examination and the investigation commenced. The investigation officer after recording the statement of witnesses, inspected the place of occurrence and prepared Site Plan ext. Ka-6. A bullet which was recovered from the ashes of deceased was sent for Forensic examination.
4. On 02.08.2001 accused no. 2-respondent (Mumtaz alias Maulana) was brought to Kanpur by the Delhi police. On 04.08.2001, accused no. 1-respondent (Wasif Haider) was arrested. Accused no. 3-respondent (Hazi Atiq) and accused no. 4-respondent (Safat Rasool) were arrested on 17.09.2001 and 18.09.2001 respectively and thereafter the Test Identification Parade (hereinafter referred to as “TIP”) was held on 27.09.2001 at District Jail, Kanpur. Subsequent to the completion of investigation, the charge-sheet was submitted.
5. The accused pleaded not guilty and claimed to be tried. It is pertinent to note that in the statements made by the accused under Section 313 of Cr.P.C. They claimed that there existed an inordinate delay in conducting the TIP, as this time period was used by the prosecution witnesses to see them at their homes or places of work to mark them carefully for the subsequent identification. They stressed on the fact that they were not kept concealed in a veil (baparda). The accused-respondents have further stated that, prior to the TIP, the police had taken their photographs and had shown it to the other witnesses. This creates a cons
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