ANIL KUMAR A

STATE OF U.P.

FEBRUARY 13. 2003

[S.N. VARIAVA AND B.N. AGRAWAL, JJ.] 8

Penal Code, 1860:

Sections 148, 149, 30./ Part-II, 323, 324 and 325: Accused assaulted prosecution witness and killed his brother-Conviction by trial Court-Affirmed C by High Court-On appeal Held, when the eye witnesses/Relatives of the victin1 have a clear look at assailants co1nn1itting crilne, the facial expressions would get en1bossed in their 1ne11101y and tt1ould not be erased in a short period of tinze-Hence evidence af such eye-witnesses reliable-Delay in test identification parade ilnn1aterial-Evidence Act, 1872.

Cri111inal trial:

Non-exan1i11ation of H1itness other than eye-1vitness-Effect on-Held, no prejudice is caused to accused.

According to the Prosecution, \vhen PW2 was_ returning to his house, he was intercepted and assaulted by the accused. When his younger brother, sister and parents came to his rescue, accused assaulted them as well. Thereafter, younger brother of PW2 succumbed to his injuries.

A complaint was lodged by the father of the deceased against 8 F persons. Trial Court convicted and sentenced accused appellant and other accomplice under Sections 325 r/w 149; 324 r/w 149; 323 r/w 149 IPC and under Section 148 IPC and acquitted the remaining 6 persons. Both accused as well as State preferred appeals before the High Court. High Court confirmed the conviction and sentences and also concluded that an offence was made out under Sections 304 Part-II r/w 149 IPC and G convicted and sentenced both the accused persons accordingly. Hence the present appeal.

It was contended for the accused-appellant that since the scribe of Fill \vas relative of the complainant and knew the accused also, non-

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A examination of such witness, gravely prejudiced the accused; that since accused was taken to hospital without his face being covered, trial got vitiated; and that delay in conducting test identification parade casts a doubt on the genuineness of the identification parade.

B Dismissing the appeal, the Court

HELD: Lt. The scribe of FIR was not an eye-witness. He did not see the incident and did not know who were present or who the as_sailants were. He only scribed what was told to him by PWI, the complainant. It has come in the evidence of PWs.1, 2 and 4 that they did not know the appellant prior to the incident. They therefore could not have named him C in the FIR. Si.nee the said scribe was not an eye-witness to the incident there \vas no necessity to examine him. He could not have stated whether the appellant was present or not. Therefore, no prejudice has been caused to the appellant. 11070-G, H; 1071~AJ

D 1.2. In the instant case, PWs. 8 and 9, the investigating officer and the officer-in-charge of the police station, took the appellant in a covered conditibn and that whilst the appellant was in jail he was not shown to

anybod~. Jn crossexamination, their testimony that they had taken t.hese precautions, could not be shaken. Thus in this case there is clear evidence that precautions were taken in order to ensure that the witnesses did not E have the chance to see the appellant. 11071-D-El

L3 .. PW2,. brother of the deceased, was attacked by the appellant as well as his accomplice. He had a clear look at his assailants. Thereafter his younger brother came to save him and got killed. PW2 also rceived serious inj11ries. These are circumstances which would impress upon the F mind of PW2 the facial expressions of the assailants. This impression would not dimin_ish or disappear within a period of 47 days. Similar is the case of other prosecution witnesses, parents of the deceased. They have .seen the assailants attacking their sons and one of the sons getting killed. ln their memory also the facial expressions of the assailants would get G embossed. A mere lapse of 47 days is not going to erase the facial expressions from their memory. All the witnesses have identified the appellant. Their evidence is believable. There is no infirmity in the impugned judgment. 11073-G, H; 1074-A, Bl

Brij Mohan v. Siate of Rajasthan, AIR (1994) SC 739 and Daya Singh H v. State of Haryana, AIR (2001) SC 1188, relied on.

ANIL KUMAR v. STATE OF U.P. [S.N. VAR!AVAJ]. 1069

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A 13911996.

From the Judgment and Order dated 22.11.1994 of the High Court of Judicature at Allahabad in Criminal Appeal No. 3151 of 1979.

Tripurari Ray. Rakesh K. Sharma, Praveeri Swarup Prashant Choudhary B and Pramod Swarup for the appearing parties.

The Judgment of the Court was delivered by

S.N. V ARIA VA, J. This Appeal is against a Judgment dated 22nd November, 1994. Briefly stated the facts are as foliows: ~

On I Ith June, 1978one Manoj Kumar (P.W.2) was returning to his home. At that time he was way laid by Chaman (the Appellant in Criminal Appeal Nos. 934-936 of 1995, which Appeals have been dismissed today by a separate Judgment) and four other persons way laid him and assaulted him D with iron bars, knives and Dands. On hearing his cries his younger bfother Sanjay rushed forward to protect him and embraced Manoj in oider to sav<! his life. The younger brother was only I 0 years old at that time. Even on. seeing that a I 0 years old boy has embraced Manoj the assailants did not stop but continued to inflict knife and Danda blows even on the young boy of 10 years. On hearing the cries of Manoj and San jay, their father Shri Sidheswar E Dwivedi, mother .Snit. Kaushalya Dwivedi and sister Sangeeta rushed to ave them. They were also assaulted. Thereafter other people of the public came there and the assailants ran away.

A complaint was lodged by the father Shri Sidheswar Dwfvedi. In the first information report he named Chaman as having first attacked alongwith F

-~ certain unknown persons. He thereafter named certain other persons who were supposed to have come there and helped the assailants after he reached the spot. On the basis of this complaint an investigation was made by the police. Eight accused were put up for trial. As Sanjay had died the charges were under Sections 302, 323, 325 read with 149 and Section 148 of the G Indian Penal Code.

The prosecution examined a number of witnesses of whom P.W. I, was the father, P. W. 2, was Manoj and P. W. 4, was the mother. They were eyewitnesses who narrated the incident and identified Chaman and the Appellant.

In spiie of detailed i:ross examination their testimony could not be shaken. H

A Their .evidence was corroborated by the evidence of the Doctor who disclosed that San jay had died a horn icidal death and that Manoj, his father and the mother had also received injuries.

After trial six persons were acquitted by the trial Cou11. Chaman and the Appellant were convicted by the trial Cou11 under Section 325 read with 149 I.P.C. for which a sentence of 4 years was imposed. They were also convicted under Section 324 read with 149 l.P.C. and a sentence of 2 years was imposed. For offence under Sections 323 read with 149 1.P.C. a sentence·· of 6 months was imposed. For offence under Section 148 l.P.C. a sentence of I year was imposed. All the sentences were directed to run concurrently.

The Appellant (as well as Chaman) filed two criminal Appeals in the High Court. The State also preferred an Appeal against the acquittal under Section 302 read with 149 and against the acquittal of other 6 persons. The High Court heard all these Appeals together and disposed off the same by the impunged judgment. The High Court has confirmed the finding of the trial D Court that the prosecution had proved its case beyond a reasonable doubt as against Chaman and the Appellant. It has also confirmed the conviction under Section 325 read with 149, 324 read with 149, 323 read with 149 and 148 of the Indian Penal Code. But the High Court has concluded, and in our view rightly, that an offence was made out under Section 304 Part rr read with 149 E 1.P.C. and sentenced both Chaman and the Appellant to 5 years rigorous imprisonment. Hence this Appeal.

Mr. Tripurari Ray has submitted that both the trial Com1 and the High Court have erred in convicting the Appellant. I-le submitted that in the FIR the Appellant has not been named. I-le submitted that the scribe of the FIR p was one Mr. Umesh Kumar Dix it who was the nephew of the complainant.

He submitted that Umesh Kumar Dixit was a class-mate of the Appellant and he knew the Appellant. He submitted that as Umesh Kumar Dixit knew the Appellant he would have named the Appellant in the written complaint ifthe Appellant had actually been present at that time. He submitted that the prosecution did not examine Umesh Kumar Dixit and therefore the Appellant G has been gravely prejudiced. He submitted that an adverse inference must be drawn against the prosecution that if Umesh Kumar Dix it had been examined the Appellant would have been able to establish that he was not present at the time of the incident. We are unable to accept the submission. Umesh Kumar Dixit was not an eye witness. He did not see the incident and did not H know who were present or who the assailants were. He only scribed what

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ANIL KUMAR v. STATE OF U.P. [S.N. V ARIA VA . .1. J

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was told to him by P. W. 4. It has come in the evidence of P. Ws. I. 2 and 4 A : _,, that they did not know the Appellant prior to the incident. They therefore could not have named him in the FIR. As Umesh Kumar Dixit was not an eye-\vitness to the incident there was no necessity to exan1-ine hini. Un1esh

Kumar Dixit could have showed no light. He could not have stated whether the Appellant was present or not. Therefore no prejudice has been caused to the Appellant.

II was next pointed out that the Appellant was arrested on 12th June.

1978. It was submitted that on the same day the Appellant was taken to the hospital. It was submitted that while taking the Appellant to the hospital no precautions were taken. It was submitted that his face was not covered. It was C submitted that for this reason itself the trial gets vitiated. In support of this submission reliance was placed upon the case .of S. V. Madan v. State of Mysore, reported in [1980) I SCC 479 wherein this Court found that there was no evidence adduced by the prosecution to show that precautions were taken to ensure that the witnesses did not see the accused andlor that the witnesses had no opportunity to see the accused before the identification D parade. On this ground it was held that reliance could not be placed on an identification parade. Thus this case was based on the fact that there was no

evidence that precautions were taken. We however note that P. Ws. 8 and 9, i.e. the investigating officer and the officer in-charge of the police station, have deposed that they took the Appellant in a covered condition and that E whilst the Appellant was in jail he was not shown to anybody. In crossexamination their testimony, that they had taken these precautions, could not be shaken. Thus in this case there is clear evidence that precautions were taken in order to ensure that the witnesses did not have the chance to se'e the Appellant.

It was next submitted that even though the Appellant was arrested on 12th June, 1978 the identification parade was held only on 27th July, 1978.

It was submined that there was a delay of about 47 days in holding the test identification parade. It was submitted that the test identification parade after such a delay cannot be relied upon and on this ground also the Appellant is entitled to be acquitted. In support of this submission reliance has been placed G on the case of Soni v. State o[U.P., reported in [1982) 3 SCC 368. The entire Judgment consists of one paragraph which reads as follows:

"After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to H

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sustain. 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 the 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 acquitthe appellant."

C It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witness to remember the facial expressions, no other reasoning is given why such a small delay would be fatal.

Reliance was also placed upon the case -0f Hari Nath v. State of U.P., reported in [988] l SCC 14. In this case the importance oftest identification parade was being considered. It was held that the test identification parade only has corroborative value and that a test identification parade should be held with reasonable promptitude after the occurrence.

Based upon the aforesaid authorities it was submitted that the law, as laid down by this Court is that ifthere is delay in holding the test identification parade then it is difficult to believe that the witnesses would remember the facial expressions of the accused. It was submitted that the law is that such identification becomes suspicious and the accused must be given the benefit of'doubt. '

We are unable to accept these submissions. In the case of Brij Mohan

v. State. of Rajasthan reported in AIR (1994) SC 739 the test identification parade ws held after 3 months. The argument was that it was not possible for the witnesses to remember, after a lapse of such time, the facial expressions of the accused. It was held that generally with lapse of time memory of witnesses would get dimmer and therefore the earlier the .test identification parade is held it inspires more faith. It is held that no time limit could be fixed for holding a test identification parade. It. is held that sometimes the crime itself is such that it would create a deep impression on the minds of the witnesses who had an occasion to see the culprits. It was held that this H impression would include the facial impression of the culprits. It was held

. ANILKUMARr.STATEOFU.P.[S.N.VARIAVA.J.] 1073

that such a deep impression would not be erased within a period of3 months. A

In the case of Da,1'a Singh v. State of Ha1:iww repo11ed in AIR (2001) SC 1188 the test identification parade was held after a period of almost 8 years inasu1nch as the accused could not be arrested for a period of 7-1/2 years and after the arrest the test identifcation parade was held after a period of 6 months. The cases of Hari Nath (supra) as well as Soni (supra) were B relied upon on behalf of the accused in that case. Both these cases were considered by this Court. The injured witnesses had lost their son and daughterin-law in the incident. It was pointed out that the purpose oftest identification parade is to have the corroboration to the evidence of the eye '\vitnesses in the form of earlier identification. It was held that the substantive evidence is C the evid,, nce given by the witness in the Court. It was held that if that evidence is found to be reliable then the absence of corroboration by the test + identification is not material. It was further held that the fact that the injured witnesses had Jost their son and daughter-in-law showed that there were

reasons for an enduring impression of the identity of the mind and memory of the witnesses. Reliance was also placed upon the following paragraph in D the case of State of Maharashtra v. Suresh, reported in [2000] 1 SCC 471.

"We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is two-fold. First is to enable the witnesses to satisfy themselves that the prisoner whom E they suspect is really the one who was seen by the1n in connection with the com1nission of the crime. Second is to satisfy the investigating authorities that.the suspect is the real person whom the witnesses had seen in connection \vith the said occurrence.'

This Court therefore concurred with the High Court that the categorical evidence of the witnesses received corroboration from the test identification parade ev<en though it was held late. The conviction of the Appellants in that case was upheld.

In the present case also Manoj was attacked by Chaman as well as the G Appellant. He had a clear look at his assailants. Thereafter his younger brother came to save him and in that process got killed. Manoj also received serious

,.._ injuries. These are circu1nstances which wou)d impress upon the 1nind of Manoj the facial expressions of the assailants. This impression would not diminish or disappear within a period of 47 days. Similar is the case of the father and the mother of Manoj. They have seen the assailants attacking their H

. ·· A sons and one of the sons getting killed. In their memory also the facial expressions of the assailants would get embossed. A mere lapse of 47 days is not going to erase the facial expressions from their memory.

All these witnesses have identified the Appellant. We are in agreement with the trial Court as well as the Appellate Cour1 that their evidence is B believable. In this view of the matter we see no infirmity in the impugned Judgment. We see no reason to interfere. The Appeal stands dismissed. The bail bond stands cancelled. The Appellant should be taken into custody forthwith to serve out the remaining period of sentence.

S.K.S.

Appeal dismissed.