Criminal Trial: Test Identification Parade-TIP – Non-conduct of – Effect of, on prosecution case – Appellant and two others allegedly committed robbery and murdered the victim during the course of the robbery – FIR by complainant-eye-witness – Conviction u/ss. 302 r/w 34 and 392 and sentenced to life imprisonment by courts below – On appeal, held: Prosecution failed to prove that the complainant and the deceased were carrying cash and it was looted by the accused persons – Conviction solely on the basis of the identification of the accused by the complainant-eye-witness for the first time in the court room – Prior thereto no TIP was conducted by the investigating agency – When no TIP was conducted the first version of the complainant reflected in the FIR would play an important role – However, there were some contradictions in the first statement of the complainant recorded in the form of FIR and in the deposition before the court, thus, TIP was necessary – It would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court – Conviction of the accused is unsustainable – Judgment and order of the trial court as well as of the High Court is quashed and set aside – Penal Code, 1860 - ss. 302 r/w s. 34, s. 392.
Allowing the appeals, the Court
HELD: 1.1 It is required to be noted that the appellantsaccused have been convicted mainly on the identification of the accused by PW1 in the Court Room and on the recovery of Rs.1 lakh each from the accused persons which were recovered from the places suggested by the accused. Thus, the conviction of the accused in the instant case is solely on the identification of the accused by PW1 in the court room. Prior thereto no TIP has been conducted by the Investigating Agency. [Para 6][458-G-H]
1.2 As regards, the conviction based on the recovery of Rs.1 lakhs each from the accused is concerned, it is required to be noted that even the trial court specifically gave the finding that the prosecution has failed to prove that the original complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter as alleged. To connect the accused for having conducted the evidence of loot of Rs.5 lakhs, primarily the prosecution was required to establish and prove that the person from whom the amount which was having to have looted. Thereafter the prosecution is required to establish and prove that the amount which is recovered from the accused is the very amount which the complainant/the person from whom the amount is looted. Even the trial court has also not given much stress on the recovery of Rs.1 lakh each from the accused. When the prosecution failed to prove that the complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter and it was the very looted amount which was recovered from the accused, the accused cannot be convicted on the basis of recovery of some cash. [Para 6.1][459-A-D]
1.3 As regards, the conviction of the accused on the PW1eye-witness identifying the accused in the Court Room and nonconducting the TIP is concerned, while appreciating the said aspect the averments in the FIR which was given by PW1-eyewitnesses are required to be referred to. It may be true that the FIR cannot be encyclopedia. However, at the same time when no TIP was conducted the first version of the complainant reflected in the FIR would play an important role. It is required to be considered whether in the FIR and/or in the first version the eye-witness either disclosed the identity and/or description of the accused on the basis of which he can recollect at the time of deposition and identify the accused for the first time in the Court Room? Nothing has been mentioned in his first statement that he had seen the accused earlier and that he will be able to identify the accused. In light of the above, the deposition of PW1 in the Court and his identifying the accused for the first time in the Court is required to be appreciated. [Paras 6.2, 6.3][459-D-G; 460-D-E]
1.4 There are some contradictions in the first statement of the complainant recorded in the form of FIR and in the deposition before the Court. In the deposition before the Court, he has tried to improve the case by deposing that he had seen the accused in the city on one or two occasions. The said was not disclosed in the FIR. Even in the cross-examination as admitted by PW1 he did not disclose any description of the accused. At this stage it is to be noted that PW1 specifically and categorically admitted in the cross- examination that it is incorrect that the accused were known earlier. He disclosed only the age of the accused. In that view of the matter conducting of TIP was necessitated and, therefore in the facts and circumstances of the case, it is not safe to convict the accused solely on their identification by PW1 for the first time in the Court. [Para 6.4][461-E-H]
1.5 Both, the trial court as well as the High Court committed a grave error in convicting the accused. The judgment and orders passed by the trial court confirmed by the High Court convicting the accused for the offence under Sections 302 read with Section
34 and Section 392 IPC respectively are unsustainable and are quashed and set aside and the accused are acquitted from the charges for which they were tried. [Para 7][463-A-B] Malkhansingh and Ors. v. State of Madhya Pradesh (2003) 5 SCC 746 : [2003] 1 Suppl. SCR 443; Md. Kalam v. State of Rajasthan (2008) 11 SCC 352 : [2008]
5 SCR 22 – distinguished.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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