Crl.A. 68/2004 BEFORE THE HON’BLE MR JUSTICE C.R.. SARMA This appeal is directed against the judgment and order, dated 25.02.2004, passed by the learned Sessions Judge, Karimganj, in Sessions Case No.49/2002. By the i mpugned judgment and order, the learned Sessions Judge, convicted the appellants under Section 307 IPC and sentenced them to suffer rigorous imprisonment for fi ve years and pay a fine of Rs.500/-, in default suffer further rigorous imprison ment for six months. It was directed that the fine amount, if realised, should b e paid to the victim. 2. Heard Mr. H.R.A. Choudhury, learned senior counsel, assisted by Mr. R.A. Choudhury, learned counsel, appearing for the appellants. Also heard Mr . K. Munir, learned Addl. Public Prosecutor, appearing for the State of Assam. 3. The prosecution case, in brief, may be stated as follows:- On 06.08.1997, the appellants hired the Ambassador (Taxi bearing Registration No.AS-11-6978), driven by Sri Munshilal Singh (victim), for going to Karimganj from Silchar. Accordingly, the said taxi was taken to Karimganj and thereafter to a place called Panchgram, where the appellants took their dinner. After their arrival at Karimganj, the appellants left the vehicle, asking the v ictim to wait for them. Accordingly, while the victim was waiting for the appell ants, at about 12.30 am i.e. on the night of 06.08.2011, the appellants returned to the victim and started assaulting him by inflicting dao blows, causing injur ies to his person. The victim could recognise the appellants and, alarm being by him, some persons appeared in the place of occurrence and the appellants fled t he place of occurrence. Thereafter, in the next morning, the victim was taken by the police to the Karimganj Civil Hospital, wherefrom he was referred to the Si lchar Medical College & Hospital. The victim recovered after undergoing medical treatment for about 25 days, as an indoor patient. On 07.08.1997, the father of the owner of the driver i.e. PW.1, lodged a FIR with the police and accordingly police registered a case. 4. During investigation, police, on 10.08.1997, arrested the appell ants, and held Test Identification Parade (for short ’TIP’), on 26.09.1997, in t he Karimganj District Jail. In the said TIP, the victim identified the appellant s as the persons, who committed assault on him. At the close of the investigatio n, police submitted charge sheet against the appellants under Section 341/326/30 7/34 IPC and forwarded them to the Court to stand trial. 5. The offence under Section 307 being exclusively triable by the C ourt of Sessions, the case was committed to the court of Sessions. Accordingly, the learned Sessions Judge, framed charges under Sections 326/307/34 IPC. The ch arges were read over and explained to the accused appellants, to which they plea ded not guilty and claimed to be tried. 6. In order to prove their case, prosecution examined as many as 9 witnesses, including the Medical Officer and the Investigating Police Officer. A t the close of evidence for the prosecution, the accused persons were examined u nder Section 313 Cr.P.C. In their statement, under Section 313 Cr.P.C., the accu sed persons stated that, their photographs were kept in the police station and t hat those were shown to the identifying witness. Considering the evidence on record, the learned Sessions Judge r ecorded the impugned conviction and the sentence against the accused-appellants, as indicated above. 7. Aggrieved by the said conviction and the sentence, the accused p ersons, as appellants, have come up with this appeal. 8. Mr. H.R.A. Choudhury, learned senior counsel, appearing for the appellants, has submitted, that the conviction being held solely on the basis of identification made by the victim (PW.2), in the Test Identification Parade, th e evidence given by the PW.2 is shaky, requiring careful scrutiny. The learned s enior counsel, has also submitted, that the TIP was held after long delay i.e. o n 26.09.1997, despite arrest of the appellants, on 10.08.1997 and that the said unexplained delay regarding holding of TIP, raises serious doubt about the vera city of the identification made by the identifying witness i.e. PW.2. It is also submitted that, during the said long period i.e. from the date of arrest of the appellants till the holding of TIP, the prosecution did not take any precaution to conceal the identity of the accused persons, from the view of P.W.2 and as s uch their identity being disclosed to others, the evidence given by PW.2, regard ing the identity of the accused persons, lacks evidentiary value. In support of his contention, the learned senior counsel, has relied on the decisions held in the following cases :- (1) Satrughana @ Satrughana Parida & Ors. Vs. State of Orissa : 1995 Supp(4) SCC 448; (2) Md. Abdul Nur vs. State of Assam : 1996 (2) GLT 368; (3) O. Kullabi Singh vs. State of Manipur : 1998 (1) GLT 35; (4) Simon & Ors. Vs. State of Karnataka : (2004) 2 SCC 694; (5) Pradip Chakma vs. State of Tripura : 2007(3) GLT 218. 9. Controverting the said arguments, advanced by the learned senior counsel, appearing for the appellants and supporting the impugned conviction an d the sentence, Mr. K. Munir, learned Addl. Public Prosecutor, appearing for the State-respondent has submitted that, as the victim i.e. PW.2 had spent consider able time with the appellants, during their journey from Silchar to Karimganj, h e had sufficient opportunity to recognise the identity of the appellants, who ha d assaulted him on the fateful night. Therefore, the learned Addl. Public Prosec utor, has submitted, that the delay in holding the TIP and failure to conceal th e identity of the accused persons, by covering their faces, during the period fr om of their arrest till the date of TIP, can’t diminish the evidentiary value, g iven by PW.2. The learned Addl. Public Prosecutor, has further submitted that, P W.2 i.e. the victim has clearly stated that he could identify the accused person s. It is submitted, by the learned Addl. Public Prosecutor that, there is suffic ient cogent and reliable evidence in favour of the prosecution and as such the l earned trial Judge committed no error by recording the conviction and the senten ce aforesaid. 10. Admittedly, the prosecution case rests on the evidence of PW.2, who is the only eye witness to the occurrence. 11. Mr. Digendra Chandra Purkayastha, who deposed as PW.1, lodged th e FIR on the next day of the occurrence. He was the father of the owner of the v ehicle, which was driven by the victim on being hired by the appellants. This wi tness had no personal knowledge, as to who had hired the said vehicle. He was in formed about the incident on the next morning, and after arriving at the place o f occurrence, he lodged the FIR with the police. In the FIR, he stated that, two unknown persons had hired the said vehicle and took the vehicle with the driver to Marjadkandi (Nirala) in the District of Karimganj and assaulted him, causing injuries on his person. Therefore, the evidence of PW.1, does not help to ident ify the assailants. 12. PW.3 i.e. Sri Monoranjan Das, stated that, hearing hue and cry, raised by some persons, he rushed to the place of occurrence and found a person in injured condition, inside an Ambassador car. 13. Sri Asit Das, who deposed as PW.4, in tune with the evidence of PW.3, stated that, hearing alarm, raised by some persons, he rushed to the place of occurrence and found the driver of the vehicle in injured condition. Sri Abd ul Haque Tapadar, who deposed as PW.5, also deposed in the same manner. 14. Mr. Shankar Dev Sharma, who deposed as PW.6, stated that, hearin g hue and cry, he rushed to the place of occurrence and found a person in injure d condition inside the vehicle. 15. PW.7 was the In-charge of Kotamoni Watch Post. He stated that, t he Officer In-charge of the Badarpur police station had entrusted him with the i nvestigation of the case. According to this witness, he found the driver of the said Ambassador car in injured condition. The said Investigating Officer stated that TIP was held in the Karimganj District Jail campus and in the said TIP, the victim had identified the accused persons. He also stated that, as PW.2 i.e. th e victim was undergoing medical treatment, he could not procure his attendance f or the TIP. 16. Supporting the evidence of the Investigating Officer, Sri Rajib Goswami, the then Judicial Magistrate 1st Class, Karimganj, who deposed as PW.9, stated that, on 26.09.1997, the TIP was held in his presence at the Karimganj D istrict Jail campus and in the said TIP, the victim had identified the accused p ersons. 17. The Medical Officer, Dr. Siddhartha Sankar Bhattacharjee, who ex amined the victim, deposed as PW.8. On examination, he found multiple cut injuri es on the person of the injured i.e. the victim. 18. From the above evidence, it appears that, none of the said witne sses saw the occurrence except PW.2 i.e. the victim himself, who identified the accused persons in the TIP. P.W.2 stated that accused persons had hired his vehi cle and that he could recognise them as his assailants. He clearly stated that, he identified the accused persons in the Karimganj Jail campus. 19. In view of above, it appears that, except the said identificatio n, made by the victim, in the TIP aforesaid, there is no other substantive evide nce to hold that the appellants were the assailants. 20. Admittedly, the occurrence took place on the night of 06.08.1997 . The victim, who was hospitalised on 07.08.1997, was released on 28.08.1997. Th e TIP was held on 26.09.1997. From the above, it appears that from the date of r elease of the identifying witness from the hospital, there was delay of about on e month in holding the TIP. The I.O. stated that as the victim was under going treatment he could not procure the attendance of the victim. In view of release of the victim on 28.8.1997, the said statement of the I.O., can be accepted as s ufficient explanation regarding the delay in holding the T.I.P. There is no expl anation as to why the TIP could not be held immediately after release of the vic tim from the hospital. This unexplained delay of about a month, in holding the T IP, raises doubt about the veracity of the prosecution version. 21. From the record it appears that the accused persons were arreste d, on 10.08.1997, and, thereafter, they were produced before the learned Magistr ate from time to time. During the said period of production of the accused perso ns, no precaution was taken by the Investigating Agency for concealing the ident ity of the accused persons, by covering their faces. The appellants, in their st atements, made under Section 313 Cr.P.C., categorically stated that their photog raphs were kept in the police station and as such their identity was made known to the identifying witness. 22. In the case of Satrughana @ Satrughana Parida (supra), there was delay of 15 days in holding the TIP. The Supreme Court, while allowing the appe al preferred by the convicted persons, observed &.The prosecution has not advan ced any reason for not holding the identification parade promptly. In other word s, the prosecution has not placed on record the reason why it was not possible f or it to hold the identification parade with promptitude i.e. soon after arrest . The Supreme Court, further observed There is nothing on record to show that the prosecution had taken care to ensure that their identity was not revealed wh en they were taken to court and produced as required by law. In these circumstan ces, when the prosecution witnesses had admitted in their oral statements that t hey had not noticed any special identifying features, it becomes unsafe to place implicit reliance on the evidence regarding identification emanating from the p roceedings at the test identification parade. In these circumstances since there is no other corroborative evidence, we find it difficult to place implicit reli ance on the identification made at the test identification parade. We are, there fore, of the opinion that the appellants are entitled to benefit of doubt. 23. In the case of O. Kullabi Singh (supra), a Division Bench of thi s Court, while refusing to interfere with the acquittal recorded by the trial co urt and dismissing the State appeal, observed &..There is not an iota of eviden ce to suggest that any precaution was taken to see that the appellant and for th at matter other accused as well, were not exposed to the view of the witness who was supposed to identify the accused at the parade. The time gap is too long, 2 months and five days after incident and on twentieth day of arrest. 24. In the case of Simon (supra), the Supreme Court observed & that evidence as to identification deserves to be subjected to a close and careful s crutiny by the court. The Supreme Court, also referred to the decision held in Sk. Umar Ahmd Shaikh v. State of Maharashtra : (1998) 5 SCC 103, wherein it was observed &. when the accused were already shown to the witnesses, their identif ication in court by witnesses was meaningless and such identification lost all i ts value and could not be made the basis for rendering conviction. 25. In the case of Pradip Chakma(supra), the learned Single Bench of this Court, referring to a catena of decisions, rendered by the Supreme Court, observed that unexplained delay in holding the Test Identification Parade advers ely affects the value of evidence of identification. In the above referred case, the conviction was made solely on the basis of the evidence of the test identif ication parade and no precaution was taken to ensure that the identity of the ap pellant was not exposed to the view of others when he was produced before the co urt on various dates. In view of above, the court held that the alleged Test Ide ntification Parade lacks fairness and was not free from doubt. 26. In the case of Md. Abdul Nur (supra), a Division Bench of this C ourt observed: Criticising the evidence it was submitted that the witness has not disclosed th e peculiar feature or marks of identification which enabled him to identify the accused. There is not a word in the evidence of P.W.-6 as to what precautions w ere taken by, the police while producing the accused before the Magistrate and w hile bringing the accused to the Court for the purpose of identification. It is nobody’s case that the face of the accused was covered while being brought for t est identification or while being produced before the Magistrate. This is one su ch salutatory precautions which the police ought to take if the test identificat ion parade is to inspire any confidence. It is for the accused that he may not c onceal or cover his face but if he is to be put to any test identification, duri ng the course of investigation the police must as a rule provide him, with facil ities to cover his face if he so desires so that he may not be exposed to the vi ew of prospective witnesses who may identify him at the test parade. In the inst ant case nothing of the sort has been done. Learned Public Prosecutor pointed ou t that the I. O. died before he could be examined as a witness, as such, the pre -cautions taken during investigation, could not be brought on record. The eviden ce of P. W.-6 does not disclose that the suspect was produced before him with a mask or cover on his face. 27. In the light of the above decisions and the principles of law la id down therein, there is no difficulty in understanding that it is not safe to base conviction on the basis of the solitary evidence of test identification par ade, which is held after much delay, without any explanation for such delay and without taking precaution for concealing the identity of the accused persons fro m the view of the witness, during the period that to from the date of arrest til l the date of holding the TIP. 28. As revealed from the record, in the present case, no precaution was taken by the police to cover the faces of the accused persons for the purpos e of concealing their identity from the view of P.W.2, during the period, from t he date of their arrest till the date of holding the test identification parade. That apart, the victim, who was the only person to identify the accused person, was released from hospital, on 28.08.1997. This indicates that he was fit to pa rticipate in the test identification parade on any date, immediately after 28.08 .1997. Surprisingly, the TIP was held on 26.09.1997 i.e. almost after one month from the date of release of the victim from the hospital. This inordinate delay in holding the TIP has not been explained by the prosecution. In my considered o pinion, in the light of the aforementioned decisions, this delay in holding the TIP, raises doubt about the evidentiary value of the test identification parade. 29. Admittedly, the victim did not know the accused persons prior to the date on which the said vehicle was taken on hire. Therefore, the appellants were not previously known to the victim. Therefore, the identification, made by him after such delay, that too without any precaution to see that the identifyi ng witness got no scope to see the suspected persons during the period of their production in the Court, is not safe to be relied upon. The witness i.e. PW-2 di d not mention about any special identifying marks on the basis of which he could recognize the accused persons. 30. Considering entire aspect of the matter and the nature of the ev idence, rendered by the prosecution, the solitary piece of evidence regarding id entity of the accused persons is found to be too shaky and too suspicious to sus tain the conviction. It is settled law that, in a criminal trial, prosecution is required to prove their case beyond all reasonable doubt. It is also settled po sition of law, that, in the event of existence of two inferences i.e. one going in favour of the prosecution and the other going in favour of the accused person , the benefit should always go in favour of the accused person. 31. Therefore, considering entire evidence, on record, and the facts and circumstances of the case, I am of the opinion that the appellants are enti tled to the benefit of doubt. Accordingly, the appeal deserves to be allowed, wh ich I do. 32. In the result, the impugned conviction and the sentence recorded against the appellants are set aside and quashed. The appellants are acquitted and set at liberty forthwith. Their bail bonds shall stand discharged. Return the Lower Court Records.