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Tuesday, January 10, 2017

none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant.= In Bijoy Singh v. State of Bihar[6], this court observed that if on evaluation of the case, a conclusion is reached that no conviction of any accused was possible the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of the appeal. To similar effect was the dictum of this court in Suresh Chaudhary v. State of Bihar[7] and in Pawan Kumar . State of Haryana[8]and in Mohinder Singh and Anr. v. State of Punjab and Others.[9] In the circumstances we allow the present appeal, set aside the judgments of conviction recorded by the courts below against the appellant and acquit him of all the charges leveled against him. We further direct that the benefit of this acquittal and our decision will also enure to the advantage of the non- appealing accused namely Sk. Sahid @Bablu.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1953 OF 2010



Md. Sajjad @ Raju @ Salim                          ….. Appellant

                                   Versus

State of West Bengal                               …. Respondent


                               J U D G M E N T



Uday Umesh Lalit, J.


1.    This appeal by special leave challenges the Judgment and  Order  dated
20.04.2010 passed by the High Court at Calcutta dismissing  Criminal  Appeal
No.53 of 1997 preferred by the appellant herein and  thereby  affirming  his
conviction and sentence under Section  302  read  with  Section  34  of  the
Indian Penal Code (for short “IPC”).

2.    According to the prosecution, on  12.07.1993  at  about  6.00  AM  PW6
Gautam Kheto found a dead body lying on the road in front of his house  with
a handkerchief tied around the neck.  He reported the  incident  which   was
recorded  in  G.D.  Book  of  Muchipara  Police  Station  dated  12.07.1993,
whereafter the police conducted inquest on the dead body  and  sent  it  for
autopsy.  The dead body was having a  tattoo  on  the  right  fore-arm  with
“Ramchandra Singh” written in Hindi.  Post-mortem examination was  conducted
by  PW18  Dr.  Rabindra  Basu  who  opined  that  the  death  was   due   to
strangulation and the ligature mark and head injuries  were  ante-mortem  in
nature.

3.    At about 10.10 PM on the same day  i.e.  12.07.1993  PW4  Jai  Kishore
Guin came to Muchipara Police Station and  made  a  statement  that  he  had
heard conversation between PW3 Kailash Srivastava and  PW16  Shyamlal  Jadav
which  suggested  that  they  had  knowledge  about   the   incident.    The
investigating officer could then find both PW16 Kailash Srivastava  and  PW6
Shyamlal Yadav on 13.07.1993.  According to both these  witnesses  they  had
seen an old man and  four  other  persons  alighting  from  a  taxi  near  a
sweetmeat shop in Akrur Dutta Lane and that the old man, who was in  drunken
condition  was  taken  away  by  the  other  persons.   According  to  these
witnesses, the number of taxi was  3157.   The  investigating  officer  then
located the taxi driver, i.e.  PW5 Laxminarayan Dey, who stated that in  the
intervening night of 11.07.1993 and 12.07.1993 five persons had boarded  his
taxi, four  persons  were  younger  in  age,  while  one  was  an  old  man.
According to this witness there was  some  altercation  amongst  them;  that
near a  sweetmeat shop  all of them alighted and that  when they  came  back
only four of them had returned.  He thereafter dropped them at Rajabazar.

4.    PW8 Saraswati Singh lodged a report on  16.07.1993  that  her  husband
named Ramchandra Singh was missing since 11.07.1993.   Two  days  later  she
was called to the police station  and  shown  certain  photographs  but  she
could not identify the picture.  After  few days,  she  again  went  to  the
police station with her nephew who could identify the picture to be that  of
Ramchandra Singh, the husband of said PW8 Saraswati Singh.

5.    On the strength of suspicion expressed by  said  PW8  Saraswati  Singh
the appellant Mohd. Sajjad and one  Sk.  Sahid  @  Bablu  were  arrested  on
09.09.1993 and 11.09.1993 respectively.  Both these persons  were  subjected
to test identification parade on  06.10.1993  in  which  PWs  3,  5  and  16
identified them.  After completion of investigation charge-sheet  was  filed
against  the  appellant  and  said  Sk.  Sahid  @  Bablu  for  the  offences
punishable under Section 302 read with Section 34 IPC while  three  persons,
namely, Mohd. Sehzada, Sheikh Kaloo and Sheikh Panchu were  stated  to  have
been absconding and declared as proclaimed offenders.
6.    The prosecution principally relied upon the testimony of PWs 3,  5,  8
and 16.  PW3 Kailash Srivastava in his deposition stated as under:
“I live at No.8, Gopi Lane, Bowbazar, Calcutta.  I am  a  plumber.   I  know
Haripada Das.  He was my previous employer.  I sleep at Premises No.8,  Gopi
Bose Lane, Calcutta.  In the night of 11.07.1993  an  incident  took  place.
That night there was pain in the stomach  of  Haripada  Das.   Haripada  Das
lives in No.3, New Bowbazar Lane, which is close to my residence.  At  about
12/ 12:15 in that night a man came from Haripada and awoke  me  from  sleep.
I went to Haripada’s place with that man.  Haripada told me that  he  should
be immediately hospitalized for the pain in hisstomach.  Then   myself  went
to search out a taxi to take Haripada to  Hospital.   Shyamlal  Yadav  is  a
driver.  Haripada Das is a plumber contractor.  We went towards  Nirmal  Ch.
Street for a taxi.  We saw a taxi entering Akrur Dutta Lane from Nirmal  Ch.
Street.  We also entered Akroor Dutta Lane to catch the taxi.   We  saw  the
taxi to stop near sweetmeat shop in Akroor  Dutta  Lane.   We  saw  about  5
persons getting down from the taxi.  We approached the taxi driver  to  hire
the taxi for taking the patient to hospital.  The  taxi  driver  refused  to
take the patient to the hospital.  The other persons who got down  from  the
taxi also got annoyed with us and told us to go  away   because  they  would
take the taxi for return journey.  There was an old man in  the  taxi.   And
other 4 persons scolded us by saying us to away.  We found the  old  man  to
be in drunken condition.  The old man was taken out of the taxi,  the  other
persons present there.  Then we came away from the place  after  noting  the
number of that taxi.  The number of  the  taxi  was  3157.    We  noted  the
number of that taxi because the  driver  refused  to  take  the  patient  to
hospital with the idea that we should lodge diary against  the  driver.   We
saw those persons by the electric light that was burning on the road.  If  I
now see any of those persons I may recognize  those  persons  who  got  down
from the taxi that night.”

PW16 Shyamlal Yadav supported the version  of  PW3  Kailash  Srivastava  and
deposed on similar lines. PW5 Laxminarayan Dey deposed  that  on  the  night
intervening 11.07.1993 and 12.07.1993 five persons  had  boarded  his  taxi.
He also deposed to  the  fact  that  while  the  taxi  had  stopped  near  a
sweetmeat shop two persons had come to hire his  taxi  and  that  there  was
some altercation with those persons.

7.     PW8 Saraswati Singh in her examination stated as under:
“My husband’s income out of  salary  was  not  sufficient  to  maintain  our
family.  To make up the income to meet the family expenses, I  used  to  buy
kerosene oil from Scott Lane Market and  sale  it  at  higher  price  at  my
residence.  I used to earn profit of Rs.30/40 per  day.   In  course  of  my
business in kerosene oil, I picked acquaintance with a boy who used to  sell
kerosene oil on that market.  His name is Raju which I  gathered  from  him.
Raju with other boys used to visit our house in connection with my  business
in kerosene.  I enquired the name of those  persons  accompanying  Raju  and
learnt from him that one of them was Sahajad, another was Bablu,  the  other
one was Panchu and another was Kaloo.  I used to purchase kerosene oil  from
Raju as he used to sell me oil at cheaper price than others.”

She further stated that there were some disputes  with  Raju  in  connection
with the aforesaid business.  As regards disappearance of  her  husband  and
the steps taken by her thereafter she stated as under:
“My  husband did not die in our home.  In the night of 11th  July  1993,  my
husband did not return home.   Sometimes  my  husband  used  to  pass  night
outside home but he used to come back home regularly.  Next day  I  went  to
the police station to lodge a diary.  When I  met  a  police  officer  there
with dress who was going out of P.S. I told him  that  my  husband  did  not
return home that night and I wanted to make a diary.  He  asked  me  whether
my husband used to drink or not and I  told  him  tht  my  husband  used  to
drink.  He advised to me  to  search  in  the  police  station  and  in  the
hospital for my husband.  Thereafter, I  went to Entally Police Station  but
did not find my husband there.  I then again went to  Bowbazar  P.S.  but  I
did not find my husband there.  Then I went  to  Amherest  Street  P.S.  and
therefrom I went to Jorasanko P.S. but I did not find  my  husband  anywhere
there.  On the  next  day  I  went  to  my  relation’s  house.   I  went  to
Bhawanipore at the house of my husband’s sister.  They informed me  that  my
husband did not go to their place and asked me to diarize the matter.   Then
I went to Chandernagore there from my husband’s co-villagers  used  to  live
but I did not find my husband there also.  I also went  to  Medical  College
Hospital, then to Compbel Hospital.  I also searched in  P.G.  Hospital  for
my husband but I did not find my husband anywhere.  On 16th  of  that  month
my husband’s sister son came to our house and scolded me for  not  diarizing
the matter.  Then I went to Muchipara P.S. and  lodged  a  diary.   After  2
days I was called from the P.S., I was shown some photographs  in  the  P.S.
As I could not distantly recognized the person from the  photograph  I  told
the police to call my husband’s sister’s son who could identify that  person
from the picture as I have defect in eye-sight.  My husband’s  sister’s  son
then came to us on 24th of that month.  I went to the  police  station  with
him and he saw the photographs and identified the picture of the  photograph
as that of his Mama i.e. my husband.  Then myself with Shib Kumar Singh,  my
husband’s sister’s son went to N.R.S. Hospital (Campbel). Then I  identified
the body by comparing with the photograph in that hospital to  be  the  dead
body of my husband…….”

8.    The prosecution  also  pressed  into  service  confessional  statement
given by Sk. Sahid @ Bablu under Section 164 Cr.P.C. which was  recorded  by
PW19,  the  then  Chief  Metropolitan  Magistrate,  Calcutta  on   27.09.93.
Insofar as test identification is concerned,  the  prosecution  relied  upon
the testimony of PW17, Metropolitan Magistrate Calcutta who  testified  that
in the test identification parade PW5 Laxmi  Narayan  Dey  and  PW3  Kailash
Srivastava could identify both the accused while PW16 Shyamlal  Yadav  could
identify only the appellant.

9.    After considering the material on record the trial  court  found  that
the prosecution was successful in bringing home its case  against  both  the
accused. Though the evidence  regarding  confession  was  discarded  by  the
trial court, it found the evidence of three witnesses, namely, PWs 3, 5  and
16 regarding identification of the accused to be trustworthy.   It  observed
as under:
“It is true that the Test Identification Parade was held  two  months  after
the incident of  murder  but  the  accused  were  absconded  and  they  were
arrested on 9th September and 11th September  and  the  Test  Identification
Parade was held on 6th October, 1993.  It is also true  that  the  witnesses
did not disclose or give any description of the accused in  their  statement
before the police.  But the fact that the accused  were  identified  by  the
witnesses in Court which is substantive  evidence  and  the  proceedings  of
Test Identification Parade are used  to  corroborative  evidence.   But,  it
should be remembered here also  that  this  is  not  only  evidence  on  the
prosecution side as the prosecution case hinges on  circumstantial  evidence
and besides the evidence of identification  of  the  accused  of  three  PWs
which is merely a link of the chain of circumstances while there  are  other
names which have completed the chain.  I reiterate here that  the  names  of
the accused came out from the statement of the widow who has given  a  vivid
description of the incident as to how they  (accused)  came  colder  to  her
family while dealing in kerosene oil  and  the  motive  of  the  accused  as
ascribed by her to commit the murder of her husband was to  grab  her  money
and for committing some other heinous crimes of which the  PW10  has  stated
in her evidence.  So, when the entire chain of  circumstantial  evidence  is
complete, it is futile to challenge any  link  separately  unless  there  is
glaring instance of disbelief.”

10.    The circumstances that the deceased was last seen in the  company  of
four persons including the appellant and said Sk. Sahid  @  Bablu  and  that
the appellant had disputes with PW8, wife of the deceased, weighed with  the
trial court in accepting the case of the prosecution. The  Trial  Court  did
not find it safe to rely on the  confessional  statement  of  Sk.  Shahid  @
Bablu.  The Trial Court by  its  judgment  dated  19.12.1996  convicted  the
appellant and said Sk. Sahid @  Bablu  for  the  offences  punishable  under
Section 302 read with Section 34 IPC. After hearing the parties,  the  trial
court by its order dated 23.12.96  sentenced  both  the  accused  to  suffer
imprisonment for life and  to  pay  fine  of  Rs.5,000/-  each,  in  default
whereof to suffer rigorous imprisonment for six months.

11.   It appears that Sk. Sahid @ Bablu did not prefer  any  appeal  against
his conviction and sentence  while  the  appellant  carried  the  matter  by
filing  Criminal  Appeal  No.53  of  1997  challenging  his  conviction  and
sentence.  The High Court affirmed the view taken by  the  trial  court  and
dismissed the said criminal appeal vide its judgment dated 20.04.2010  which
is presently under appeal.

12.  Appearing for the appellant, Mr. Anand Dey, learned Advocate  submitted
that the entire case rests on the suspicion  expressed  by  PW  8  Saraswati
Singh arising from some disputes in connection with  the  business  and  the
identification by  PWs  3,  5  and  16.  It  was  submitted  that  the  Test
Identification Parade was held more than  two  and  half  months  after  the
incident and in any case 25 days after the arrest of  the  accused.  In  his
submission, such Test Identification Parade  was  completely  flawed.  To  a
pointed question that if  the  appellant  deserved  acquittal  whether  such
acquittal would enure to the advantage of the  other  accused  who  had  not
even  preferred  an  appeal,  Mr.  Mrinal  Kanti  Mandal  learned   Advocate
appearing for the Respondent-State submitted in the affirmative.

13.   In the present case, apart from the identification by PWs 3, 5 and  16
and their version that they had seen the deceased in  the  company  of  four
persons on the night intervening 11.7.1993 and 12.7.1993, there  is  nothing
which could point in the direction of the guilt of the  appellant  and  said
Sk. Sahid @ Bablu. The confessional statement having been  discarded,  there
is no other material to lend any corroboration. The matter thus  stands  and
rests purely on the identification by  PWs  3,  5  and  16  apart  from  the
suspicion expressed by PW 8 Saraswati Singh.

14.   In Lal Singh  and  others  Vs.  State  of  U.P.[1]  ,  this  court  in
Paragraphs 28 and 43 dealt with the value or weightage  to  be  attached  to
Test Identification Parade and the effect of  delay  in  holding  such  Test
Identification Parade. Said paragraphs are as under:-
“28. The  next  question  is  whether  the  prosecution  has  proved  beyond
reasonable doubt that the appellants are the real culprits. The value to  be
attached  to  a  test  identification  parade  depends  on  the  facts   and
circumstances of each case and no hard-and-fast rule can be laid  down.  The
court has to examine the facts of the case to find  out  whether  there  was
sufficient opportunity for the witnesses to identify the accused. The  court
has also to rule out the possibility of  their  having  been  shown  to  the
witnesses before holding a test identification parade.  Where  there  is  an
inordinate delay in holding a test identification  parade,  the  court  must
adopt a cautious approach so as to prevent miscarriage of justice. In  cases
of inordinate delay, it may be that the witnesses may  forget  the  features
of the accused put up for identification in the test identification  parade.
This, however, is not an absolute rule because it depends upon the facts  of
each case and  the  opportunity  which  the  witnesses  had  to  notice  the
features of the accused and the circumstances in which  they  had  seen  the
accused committing the offence.  Where  the  witness  had  only  a  fleeting
glimpse of the accused at the time of occurrence, delay in  holding  a  test
identification parade has to be viewed seriously. Where, however, the  court
is satisfied that the witnesses had ample opportunity of seeing the  accused
at the time of the commission of the offence  and  there  is  no  chance  of
mistaken identity, delay in holding the test identification parade  may  not
be held to be fatal. It all depends upon  the  facts  and  circumstances  of
each case.
                             ………………………..
43. It will thus be seen that the  evidence  of  identification  has  to  be
considered in the peculiar facts and circumstances of each case.  Though  it
is desirable to  hold  the  test  identification  parade  at  the  earliest-
possible opportunity, no  hard-and-fast  rule  can  be  laid  down  in  this
regard. If the delay is inordinate and there is evidence  probabilising  the
possibility of the accused having been shown to  the  witnesses,  the  court
may not act on the  basis  of  such  evidence.  Moreover,  cases  where  the
conviction is based not solely on the basis of identification in court,  but
on the basis of other corroborative evidence, such  as  recovery  of  looted
articles, stand on a different footing and the court  has  to  consider  the
evidence in its entirety.”


15.   In the case in hand, apart from the  fact  that  there  was  delay  in
holding the Test Identification Parade, one striking feature  is  that  none
of the concerned prosecution witnesses had given  any  identification  marks
or disclosed special features or attributes of any of those four persons  in
general and the accused in particular. Further, no incident  or  crime   had
actually taken place in the presence of those prosecution witnesses nor  any
special circumstances had occurred which would invite their attention so  as
to register the features or special attributes  of  the  concerned  accused.
Their chance meeting, as alleged, was in the night and  was  only  for  some
fleeting moments.
16.    In Subash Vs. State of U.P.[2], the  aspects  of  delay  as  well  as
absence of any special features for identification and  the  effect  thereof
were considered by this court in paragraphs 8 and 9 as under:-
“8. Apart from this infirmity we further find that Shiv Shankar was not  put
up for test identification parade promptly. The  identification  parade  has
been held three weeks after his arrest and no explanation has  been  offered
for  the  delay  in  holding  the  test  identification  parade.  There  is,
therefore,  room  for  doubt  as  to  whether  the  delay  in  holding   the
identification parade was in order to enable the  identifying  witnesses  to
see him in the police lock-up or in the jail premises and  make  a  note  of
his features.

9.  Over  and  above  all  these  things  there  remains  the  fact  that  a
sufficiently  long  interval  of  time  had  elapsed  between  the  date  of
occurrence when the witnesses had seen Shiv Shankar for a  few  minutes  and
the date of the test identification parade. It is, no doubt, true  that  all
the  three  witnesses  had  correctly  identified  Shiv   Shankar   at   the
identification parade but it has to be borne in mind that  nearly  4  months
had elapsed during the  interval.  It  is  relevant  to  mention  here  that
neither in Exhibit Kha-1 nor in their statements during  investigation,  the
eyewitnesses have given any descriptive particulars of Shiv  Shankar.  While
deposing before the Sessions Judge they have stated that Shiv Shankar was  a
tall person and had “sallow” complexion.  If  it  is  on  account  of  these
features  the  witnesses  were  able  to  identify  Shiv  Shankar   at   the
identification parade, they would have certainly  mentioned  about  them  at
the earliest point of time because their memory would have been fresh  then.
Thus in the absence of any descriptive particulars of Shiv  Shankar  in  Ex.
Kha-1 or in the statements of witnesses during investigation,  it  will  not
be safe and proper to act upon the identification of  Shiv  Shankar  by  the
three witnesses at the identification parade and hold that  he  was  one  of
the assailants of Ram Babu.  As  pointed  out  in  Muthuswami  v.  State  of
Madras[3]where an identification parade was held about 2½ months  after  the
occurrence it would not be safe to place reliance on the  identification  of
the accused by the eyewitnesses. In  another  case  Mohd.  Abdul  Hafeez  v.
State of A.P.[4] It was held that where the  witnesses  had  not  given  any
description  of  the  accused  in  the  first  information   report,   their
identification of the  accused  at  the  sessions  trial  cannot  be  safely
accepted by the court  for  awarding  conviction  to  the  accused.  In  the
present case there was a long interval of nearly 4 months  before  the  test
identification parade was held and it is difficult to accept that  in  spite
of this interval of time the witnesses were able to have a  clear  image  of
the accused in their minds and identify him correctly at the  identification
parade.”

17.   Similarly the issue of delay weighed with this court in Musheer   Khan
vs.  State  of  M.P.[5]  in   discarding   the   evidence   regarding   test
identification as under:
 “8. Insofar as the identification of A-5 is concerned that has taken  place
at a very delayed stage, namely, his identification took place on  24-1-2001
and the incident is of 29-11-2000, even though A-5 was  arrested  on  22-12-
2000. There is no explanation why his identification parade was held on  24-
1-2001 which is after a gap of over a month from  the  date  of  arrest  and
after about 3 months from the date of the incident.  No  reliance  ought  to
have been placed by the courts below or the High Court on  such  delayed  TI
parade for which there is no explanation by the prosecution.”

18.   In the instant case none of the witnesses had disclosed  any  features
for identification which would lend some corroboration.  The  identification
parade itself was held 25 days after the arrest. Their  chance  meeting  was
also in the night without there being  any  special  occasion  for  them  to
notice the features of any of the  accused  which  would  then  register  in
their minds so as to enable them to identify them  on  a  future  date.  The
chance meeting was also for  few  minutes.  In  the  circumstances,  in  our
considered view such identification simplicitor cannot form the basis or  be
taken as the fulcrum for the  entire  case  of  prosecution.  The  suspicion
expressed by PW 8 Saraswati Singh was also not enough to record the  finding
of guilt against the appellant.  We therefore grant benefit of doubt to  the
appellant and hold that the prosecution has failed  to  establish  its  case
against the appellant.

19.   Mr. Mrinal  Kanti Mandal, learned  Advocate  is  right  in  submitting
that in certain cases  this  Court  had  granted  benefit  even  to  a  non-
appealing accused.  In  Bijoy  Singh   v.  State  of  Bihar[6],  this  court
observed that if on evaluation of the case, a conclusion is reached that  no
conviction of any accused was possible the benefit of that decision must  be
extended  to the similarly  situated  co-accused  even  though  he  had  not
challenged the order by way of the appeal. To similar effect was the  dictum
of this court in Suresh Chaudhary v. State of Bihar[7]  and in  Pawan  Kumar
. State of Haryana[8]and in Mohinder Singh and Anr. v. State of  Punjab  and
Others.[9]

20. In the  circumstances  we  allow  the  present  appeal,  set  aside  the
judgments of conviction recorded by the courts below against  the  appellant
and acquit him of all the charges leveled against  him.  We  further  direct
that the benefit of this acquittal and our decision will also enure  to  the
advantage of the non- appealing accused namely Sk. Sahid @Bablu.

21. The appeal is  thus  allowed  in  aforesaid  terms.  The  appellant  was
released on bail during the pendency of this appeal. His  Bail  bonds  stand
discharged.


                                                            ..……..………………..J.
(Pinaki Chandra Ghose)


                                             ………………………J.
                                             (Uday Umesh Lalit)

New Delhi,
January 6, 2017
-----------------------
[1]    2003 (12) SCC 554
[2]    1987 (3) SCC 331
[3]    AIR 1954 SC 4=1954 Cri LJ 236
[4]    AIR 1983 SC 367 =(1983) 1 SCC 143
[5]    2010 (2) SCC 748
[6]    2002 (8) SCC 147
[7]    2003 (4) SCC 128
[8]    2003 (11) SCC 241
[9]    2004 (12) SCC 311


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