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The purpose of a prior test identification,therefore,seems to be to test and strengthen the trustworthiness of that evidence PRE |
It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them,in the form of earlier identification proceeding PRE |
There may,however,be exceptions to this general rule,when for example,the court is impressed by a particular witness,on whose testimony it can safely rely,without such or other corroboration PRE |
The identification parades belong to the investigation stage PRE |
They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence,who were not previously known to them PRE |
This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court PRE |
Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime PRE |
They do not constitute substantive evidence PRE |
These parades are of the essentially governed by Section 162,Criminal Procedure Code PRE |
It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate PRE |
Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error PRE |
They must,therefore,take intelligent interest in the proceedings,bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification PRE |
Those proceeding should not make it impossible for the identifiers who,after all,have,as a rule,only fleeting glimpses of the person they are supposed to identify PRE |
Generally speaking,the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused,so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that... |
The power to identify,it may be kept in view,varies according to the power of observation and memory of the person identifying and each case depends on its own facts,but there are two factors which seem to be of basic importance in the evaluation of identification PRE |
The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible PRE |
The identification to be of value should also be held without much delay PRE |
The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar PRE |
The evidence as to identification deserves,therefore,to be subjected to a close and careful scrutiny by the Court PRE |
The observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them Ratio |
We,however,do not see how the observations help the appellants Ratio |
In the present case,the child witness has been found to be reliable Ratio |
His presence is not doubted,since he resided with the family for whom he worked Ratio |
He had no axe to grind against any of the accused Ratio |
He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court Ratio |
In his deposition he specified the details of the part which the accused played with reasonable particularity Ratio |
In such a situation,it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them,in the form of earlier identification proceeding,as observed by this Court in Budhsen's case 1970 Indlaw SC 136 (supra R... |
This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as in Budhsen's case 1970 Indlaw SC 136 (supra).The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs Ratio |
State of U.P.(1987) 3 SCC 331 1987 Indlaw SC 28887,and Mohd Ratio |
Abdul Hafeez Vs Ratio |
State of Andhra Pradesh AIR 1983 Ratio |
SC 367 1982 Indlaw SC 63.The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case Ratio |
Suffice it to say that those cases do not create any doubt as regards the conviction in this case Ratio |
Mr ARG |
P.C.Agrawala,learned senior counsel for the appellant Mahesh (accused no.3),vehemently submitted that this accused ought not to have been convicted u/s.302 with the aid of Ss.34 and 120 (B) of IPC.In particular it was submitted that the role attributed to the accused was that he merely stood outside the house ARG |
He did not even act as a guard because when the witness Anil Kumar (PW-21) came to the house,he was not even stopped by the accused from entering the house ARG |
The learned counsel for Mahesh (accused no.3) relied on several decisions of this Court in Suresh Sakharam Nangare Vs ARG |
State of Maharashtra (2012) 9 SCC 249 2012 Indlaw SC 304,Jai Bhagwan Vs ARG |
State of Haryana AIR 1999 SC 1083 1999 Indlaw SC 391 and Ramashish Yadav Vs ARG |
State of Bihar (1999) 8 SCC 555 1999 Indlaw SC 693 ARG |
It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in,it must go to the accused vide Baliya Vs Ratio |
State of M.P.(2012 Ratio |
9 SCC 696 2012 Indlaw SC 343 Ratio |
On a careful conspectus of the facts and the law,we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt Ratio |
There is no evidence of his having played any part in the crime Ratio |
He was merely seen by the witness as standing outside the house when the witness came home Ratio |
Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house Ratio |
There is no evidence of the formation or sharing of any common intention with the other accused Ratio |
There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them Ratio |
No weapon was seized from him,nor was any property connected with the crime,seized Ratio |
Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Ss.34 and 120(B Ratio |
We therefore,hold that the accused Mahesh (accused no.3) in Criminal Appeal No.867 of 2013 is innocent and the conviction against him is set aside RPC |
His bail bonds stand cancelled and sureties are discharged RPC |
In view of the above,Criminal Appeal No.867 of 2013 is allowed and Criminal Appeal Nos.822 of 2012,589 of 2014 and Criminal Appeal arising out of SLP (Criminal) No.3737 of 2014 are dismissed RPC |
Appeals disposed of RPC |
This appeal is preferred against the judgment dated 19.8.2011 passed by the High Court of Punjab and Haryana in Criminal Appeal No.181 SB of 2000, whereby the High Court partly allowed the appeal filed by the appellants thereby confirming the conviction of the appellants with certain modifications FAC |
Briefly stated, case of the prosecution is that on the fateful day i.e. 18.11.1994, at about 8.00 A.M. in the morning the complainant Jagdish (PW-5) along with his two sons namely Sukhbir and Mange Ram (PW-6) were busy in cutting pullas (reeds) from the dola of their field FAC |
At that time, Jage Ram (A-1) and his sons Rajbir Singh FAC |
Raju (A-2), Rakesh (A-3) and Madan (A-4) armed with jaily, pharsi and lathis respectively, entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties FAC |
Wordy altercations ensued between the parties and Jage Ram insisted that he would take away the entire pullas FAC |
In the fight, the accused persons started inflicting injuries to the complainant, and his sons Rajbir FAC |
Raju (A-2) gave a pharsi blow on the head of Sukhbir, Jage Ram (A-1) caused injury to Jagdish (PW-5) with two jaily blows FAC |
Additionally, Madan and Rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party FAC |
Jagdish and his injured sons raised alarm, hearing which Rajesh and Usha came to rescue them and on seeing them, the accused persons fled away FAC |
The injured witnesses were taken to the Primary Health Centre, Taoru where Dr. Pardeep Kumar, Medical Officer, medically examined the injured persons FAC |
Injured Sukhbir was vomiting in the hospital and later on he was referred to General Hospital, Gurgaon as his condition deteriorated FAC |
A CT scan disclosed that large extra-dural haematoma was found in the frontal region with mass effect and Sukhbir needed urgent surgery and he was operated upon and the large extra-dural haematoma was removed FAC |
Dr. Pardeep Kumar (PW-2) also examined the other injured persons, PW 5-Jagdish and PW FAC |
6- Mange Ram FAC |
Statement of Jagdish was recorded, based on which F.I.R. was registered at Police Station Taoru, Gurgaon under Sections 323, 324, 325 and 307 read with S. 34 IPC FAC |
PW 8-Ramesh Kumar (ASI) had taken up the investigation FAC |
He examined the witnesses and after completion of investigation, challan was filed under Sections 307, 325, 324 read with S. 34 IPC FAC |
In the trial court, prosecution examined nine witnesses including Jagdish-PW5, Mange Ram-PW6 and Dr. Prem Kumar-PW2 and Dr. HiIol Kanti Pal-PW9 FAC |
Neuro Surgeon, PW8-investigating officer and other witnesses FAC |
The accused were examined u/s FAC |
313 Cr FAC |
P.C. about the incriminating evidence and circumstances FAC |
First accused Jage Ram pleaded that on the date of occurrence-complainant party Jagdish and his sons Mange Ram and Sukhbir forcibly trespassed into the land belonging to the accused and attempted to forcibly cut the pullas FAC |
Jagdish further claims that he along with Rakesh caused injuries to the complainant party in exercise of right of private defence of property FAC |
He has denied that Rajesh and Usha had seen the incident FAC |
Raju (A-2) and Madan (A-3) stated that they were not present on the spot and they have been falsely implicated FAC |
Rakesh (A-4) adopted the stand of his father Jage Ram FAC |
Upon consideration of oral and documentary evidence, the learned Additional Sessions Judge vide judgment dated 17.2.2000 convicted all the accused persons u/ss RLC |
307 and 325 IPC and sentenced them to undergo rigorous imprisonment for five years and one year respectively and a fine of Rs RLC |
500/- each with default clause RLC |
Aggrieved by the said judgment, the accused-appellants filed criminal appeal before the High Court of Punjab and Haryana RLC |
The High Court vide impugned judgment dated 19.8.2011 modified the judgment of the trial court thereby convicted Jage Ram (A-1) u/s RLC |
325 IPC and sentenced him to undergo rigorous imprisonment for one year, convicted second accused Rajbir RLC |
Raju u/s RPC |
307 IPC and imposed sentence of imprisonment for five years as well the fine of Rs.500/- was confirmed by the High Court RLC |
Sentence u/s RLC |
325 IPC (two counts) was modified as the sentence u/s RLC |
323 IPC and he was sentenced to undergo six months rigorous imprisonment RLC |
Both the sentences were ordered to run concurrently RLC |
High Court modified the sentence of Madan (A-3) Rakesh (A-4) u/s. 323 IPC and sentenced them to undergo rigorous imprisonment for six months (two counts) respectively RLC |
In this appeal, the appellants assail the correctness of the impugned judgment RLC |
Ms. Vibha Datta Makhija, learned Senior Counsel appearing for the appellants contended that the evidence of the witnesses suffers from material discrepancy and is self- contradictory ARG |
It was submitted that injured witness Sukhbir was not examined in the court and neither CT Scan nor x-ray nor operational notes of Sukhbir were produced before the court and in the absence of such material evidence, courts below erred in convicting the second accused u/s ARG |
307 IPC Ratio |
Additionally, the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective ARG |
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