Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1374 of 2001 Old. Criminal Appeal No. 379 of 1998 Dated of Decision: 26 .03.2010 Hanif and others …Appellants Versus State of Uttar Pradesh …Respondent Present: Mr. B.S. Parihar, learned counsel for the appellants. Mrs. Mamta Bisht, learned A.G.A. for the State. Hon’ble Nirmal Yadav, J. This appeal is directed against the judgment and order dated 18.02.1998 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 271 of 1993, whereby both the appellants have been convicted and sentenced for two years rigorous imprisonment under Section 411 of the I.P.C. and appellant no. 2-Islam Ahmad has been convicted and sentenced to undergo one year rigorous imprisonment for the offence under Section 25 of the Arms Act. Both the sentences have been ordered to run concurrently. The accused-appellants stood trial for the offence under Sections 392, 397 and 411 of the I.P.C. while accused Islam Ahmad was also tried for the offence under Section 25 of the Arms Act also. They have been acquitted of the charges under Sections 392 and 397 of the Indian Penal Code. Brief facts of case, as per the prosecution, are that on 15.06.1990 complainant-Suresh Kumar was going from Nadehi Factory towards his village Balapur at about 9:00 p.m. When he reached near bridge of Mahuadabara, one person asked him to stop and meanwhile 2-3 other persons also reached the spot. One of them pointed one countrymade pistol towards him while others snatched motorcycle from him and 2 thereafter all the three persons went towards Dhampur Road. According to complainant he can identify all the three persons as he had seen their faces in the light of motorcycle. He further stated that all the three accused were of about 20-25 years of age and were wearing paint shirt. His motorcycle was not yet registered, thus he disclosed the engine number of the motorcycle. On 24th July 1990 S.I. D.K. Sharma received secret information that some boys are trying to sell a motorcycle, therefore, he constituted a investigating team and went towards Afzalgarh Tiraha. From there he also joined Amar Singh and Joginder Singh PWs. When they reached at Dharampur crossing they saw one Rajdoot Motorcycle coming from Rehad side towards Dharmpur. On pointing out of secret informer, the police encircled and apprehended all the three accused who were sitting on the motorcycle, who disclosed their names as Hanif, Islam Ahmad and Naseem Ahmad. One knife was recovered from Hanif, while a countrymade pistol and two cartridges were recovered from Islam Ahmad. Nothing was recovered from Naseem Ahmad. Knife and countrymade pistol were taken into possession alongwith motorcycle. The said motorcycle belonged to Suresh Kumar-complainant. On the completion of the investigation, the three accused were tried under Sections 392, 397 and 411 of the I.P.C. and accused Islam Ahmad was also tried under Section 25 of the Arms Act as referred to above, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as six witnesses. The statements of the accused- appellants were recorded under Section 313 Cr.P.C. They denied all the allegations of prosecution and pleaded innocence and false implication. 3 I have heard Mr. B.S. Parihar, learned counsel for the appellants and Mrs. Mamta Bisht, learned A.G.A. for the State and perused the material available on record. Learned counsel for the appellants argued that the alleged occurrence took place on 15th June 1990 while recovery from the accused is alleged to have been made on 24th July 1990 i.e. after one month and ten days of the occurrence. The accused were put up for identification on 10.11.1990 i.e. four months 25 days after the occurrence. Learned counsel for the appellants argued that all the witnesses of identification cannot be implicitly relied upon. Learned counsel for the appellant further argued that admittedly, the occurrence took place during the night time and there was no source of light at the place of occurrence and in such circumstances evidence establishing the identity assumes material significance. Learned counsel for the appellants in his support referred the judgment of Allahabad High Court reported in 1992(29) ACC pg 36 Rakesh Vs. State of U.P.; 1992 (29) ACC 412 Aman Vs. State of U.P.; 1982 (3) SCC (Cri) 368 Soni Vs. State of Uttar Pradesh and 1988 SCC (Cri) 14; Hari Nath and another Vs. State of U.P. In the present case admittedly the incident took place at night time on 15.06.1990. There is also no dispute that there was no source of light and as per the statement of Suresh Kumar-complainant, he had seen all the three accused in the light of motorcycle. In such circumstances the evidence establishing the identity of the culprits assumes greater significance and thus the evidence of test identification would call for a careful scrutiny. In such kind of cases where the eyewitness on its own admission did not know the accused 4 before the occurrence, the identification of the accused, after a long lapse of time would be improper. In the present case the test identification parade was conducted on 10th November 1990 i.e. four months 25 days after the alleged occurrence. This delay in holding the identification parade throws a doubt on the genuineness of the identification, as after lapse of such a long period, the witness is not expected to remember the features and structure of the culprits. Moreover, there is likelihood of error in the identification of the accused by the victim of the crime because the emotional balance of the victim at the time of occurrence would be so disturbed by his extra-ordinary experience that his powers of perception become distorted and thus identification by such a person would be most untrustworthy. The Apex Court in the case of Soni Vs. State of Uttar Pradesh reported in [1982 (3) SCC (Cri) 49 para 2] observed as under: - “The conviction rests purely upon his identification by five witnesses; Smt. Koori, Pritam Singh, Kewal Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant.” In the present case also there appears to be a serious lapse on the part of the prosecution in putting up the suspected culprits for test identification after four months twenty-five 5 days from the date of the occurrence and almost three months fifteen days after the arrest of the accused. There is no explanation at all for the delay. In such circumstances, the benefit of this unexplained delay in holding the test identification has to be given to the accused because the evidence of test identification lacks the requisite element of reassurance to support the conviction. In view of the above, the appeal is allowed. The judgment and order dated 18.02.1998 passed by the Special Judge/Additional Sessions Judge, Nainital is set aside. The accused are acquitted of the charges levelled against them. If the accused are on bail, their bail bonds are cancelled and the sureties are discharged. (Nirmal Yadav, J.) VKG 26.03.2010