HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR [CASE NUMBER] Parties Name [ENTITY] @ Lalloo vs State of Madhya Pradesh Bench Constituted Hon'ble Shri Justice [ENTITY] & Hon'ble Smt. Justice [ENTITY] Judgment delivered by Hon'ble Shri Justice [ENTITY] Whether approved for reporting Yes/No Name of counsels for parties For appellant: Shri [ENTITY], Advocate. For respondent/State: Shri [ENTITY], Dy. Govt. Advocate. Law laid down Significant paragraph numbers JUDGMENT
[Pronounced on : 14.05.2018]
1. Appellant has filed this appeal against the judgment dated [SECTION].09.2007 passed in [CASE NUMBER]. Appellant was prosecuted for commission of offence punishable under [SECTION] of [ACT], under [SECTION] and [SECTION] of [ACT] and under [SECTION] and [SECTION] of the [ACT] [hereinafter in short 'the [ACT]']. Trial Court held the appellant guilty for commission of offence punishable under [SECTION] of [ACT] and under [SECTION] and [SECTION] of the [ACT] and awarded a sentence of Life with fine of Rs.2,000/-.
2. Prosecution story, in brief, is that abductee [ENTITY], was going to Dabhora from his residence. [ENTITY] and another person were with him at one and half Km. west side from Karma Nala, three unknown persons abducted them. [ENTITY] was freed at 12 O'clock, he was told to come with a ransom money of Rs. 3 Lacs and meal for eight persons. Abductees detained two persons. Subsequently, [ENTITY] was also freed. Appellant was also the member of [ENTITY] team. Abductee was kept for near about three days. When the docoits saw the police and there was a firing by the police, dacoits ran away in the forest. Abductee was recovered by the police. Subsequently, police arrested the appellant and other accused persons and filed charge-sheet. During trial, appellant abjured the guilt and pleaded innocence. Trial Court held the appellant guilty for commission of offence and awarded sentence as mentioned above.
3. Learned counsel for the appellant has submitted that trial Court has committed an error in holding the appellant guilty for commission of offence. Conviction of the appellant is based solely on dock identification as deposed by (PW-4). Even the aforesaid witness did not mention the name of present appellant in the police statement recorded under [SECTION] of [ACT] It is further submitted that on the same set of evidence, another co-accused namely; [ENTITY], has been acquitted by the trial Court vide judgment dated 01.04.2009 passed in [CASE NUMBER].
4. Counsel for the State has submitted that there is sufficient evidence against the appellant to convict him for the commission of offence. Abductee deposed against the appellant he has also mentioned his name. If there is defect in prosecution and TI parade was not conducted, then the appellant would not get the benefit.
5. (PW-1) [ENTITY], turned hostile. He is the witness of seizure and memorandum. He denied the fact that any Katta was seized from the appellant before him. Neither appellant had given any memorandum before him. (PW-2) [ENTITY] deposed that I do not know the appellant abductee [ENTITY] is my son. My son and [ENTITY] were going to Dabhora on bicycle on the way, docoits had abducted them. [ENTITY] was left free subsequently, and they had given message to come with a ransom of Rs.3 Lacs near Gurdari Pond, then [ENTITY] would be freed or he would be killed him. [ENTITY] informed me about the said incident. Thereafter, I lodged report at the Police Station which is Ex.- P-3. Police registered the report which is ExP.4. I signed both the documents. Police prepared spot map which is Ex.P-5.
6. (PW-4) [ENTITY] is abductee. He deposed that before three years from today I was going on foot to Dabhora with [ENTITY]. Three miscreants stopped us and they had beaten [ENTITY]. Present appellant [ENTITY] was there. He had beaten [ENTITY]. Thereafter., [ENTITY] was freed. I and [ENTITY] were abducted. We were taken to forest of Panna. There were three persons. Present appellant was there. At around 4 O'clock [ENTITY] was freed. He was directed to come with an amount of Rs.3 Lacs. Miscreants had kept me for three days in the forest, I was offered meal. They had made a demand of money from me. On third day, villagers encircled the place, there was police firing hence, miscreants had freed me. My father did not give the ransom. In his cross-examination, he deposed that I know the appellant by face. When the appellant was abducted me, I did not know his name.
7. (PW-5) [ENTITY], prepared the spot map Ex-P-5. He further deposed that I recorded statements of [ENTITY], [ENTITY] and [ENTITY]. (PW-6) [ENTITY] deposed that I prepared the arrest memo of appellant Ex-P-6. Appellant had given a memorandum and on his memorandum which is Ex-P-1, a Katta was seized. (PW-7), [ENTITY], deposed that I recorded the FIR against unknown persons which was lodged by [ENTITY]. FIR is Ex.P-4.
8. (PW-3) [ENTITY], deposed that I was posted as Station House Officer (Incharge) at Police Station Dabhora on [SECTION].09.2004. On the aforesaid date, appellant was arrested and on his memorandum a Katta was seized vide seizure memo Ex.P-1. Both the witnesses signed the same. There is no evidence except this on record. Trial Court in para 10 of the impugned judgment disbelieved that a Katta was seized from the possession of appellant because the independent witness of seizure turned hostile and abductee deposed that appellant was armed with a wooden stick. Trial Court convicted the appellant on the basis of sole evidence of (PW-4) [ENTITY] and held that (PW-4) in his evidence deposed that appellant was on the spot. He identified the appellant, however, before incident he did not know about the appellant.
9. The question is whether the evidence of PW-4 in this regard is just and proper and in accordance with law or not. It is an admitted fact that no identification parade was conducted by the police. In the FIR (Ex-P-4) it is mentioned that unknown persons had abducted PW-
4. There is a statement of (PW-4) [ENTITY] recorded by the Police under [SECTION] of [ACT], The aforesaid statement has not been exhibited. In the aforesaid statement, PW-4, did not mention by name that present appellant had abducted him. He mentioned the fact that three unknown persons miscreants had abducted him. In the statement before the Court, which was recorded after three years of the incident, (PW-4) mentioned that one of the miscreant was the appellant and his name is [ENTITY]. He also deposed that appellant had beaten [ENTITY].
10. The apex Court in the case of [PRECEDENT] has held as under in regard to failure to hold an identification parade.
"Failure to hold an identification parade does not make inadmissible the evidence of identification in Court. The weight to be attached to such identification is a matter for the Courts of fact and it is not for the Supreme Court to reassess the evidence unless exceptional grounds are established necessitating such a course."
11. The apex Court in the matter of [PRECEDENT] has held as under in regard to dock identification.
"44. That apart, it was recently held in [PRECEDENT] that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions.[19] Earlier, a similar view was expressed in [PRECEDENT]"
12. Hon'ble Supreme Court in the case of [PRECEDENT] has held as under:
"41. It is well settled principle that in the absence of any independent corroboration like TIP held by judicial Magistrate, the evidence of eye-witnesses as to the identification of the appellants/accused for the first time before the trial Court generally cannot be accepted. As explained in [PRECEDENT] case, that if the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence, which are lacking in the case on hand except for A1 and A3."
[SECTION]. The apex Court in the matter of [PRECEDENT] has held as under that identification before court should not normally be relied upon if the name of accused is neither mentioned in FIR or before police. In the aforesaid judgment, Hon'ble Supreme Court exhaustively considered the case law on this point.
"6. It is also well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous Identification in the test identification parade or in other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by catena of decisions of this Court in the cases of [PRECEDENT], [PRECEDENT] (supra), [PRECEDENT] (supra), [PRECEDENT], [PRECEDENT], [PRECEDENT] (supra), [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], (supra), [PRECEDENT], [PRECEDENT], (supra), [PRECEDENT] and [PRECEDENT].
7. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in court without there being any corroboration whatsoever can form the sole basis for his conviction. In the case of [PRECEDENT] (supra) it was observed:-
"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."
14. Principal of law is that failure to hold test identification parade does not make the evidence of identification in Court inadmissible. However, if the witness identifies the accused in Court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. In the present case, witness (PW-4) did not mention the name of present appellant in his statement recorded by the Police under [SECTION] of [ACT] has not been proved. (PW-4) abductee after three years deposed before the Court that appellant was one of the miscreant. Another accused namely; [ENTITY] was tried in another offence by the trial Court and in that case also the witness named him in his statement before the Court first time, he was acquitted by the trial Court vide judgment dated 01.04.2009 passed in [CASE NUMBER].
15. In view of the aforesaid evidence and the principle of law down by the Hon'ble apex Court quoted above, in our opinion, it would not be just and proper to convict the appellant on the basis of sole evidence of (PW-
4). Before the Court in which PW-4 mentioned the name of present appellant first time. Consequently, the appeal filed by the appellant is hereby allowed. Judgment and conviction passed by the trial Court is hereby set aside. Appellant is acquitted from the charge. Appellant is in jail, he be released forthwith, if he is not required in any other case.
([ENTITY]) (Smt. [ENTITY]) Judge Judge pb Date: 2018.05.17 02:49:53 -07'00'