Penal Code, 1860: ss. 302, 120B, 147, 148 and 324 – Unlawful assembly with common object of causing death – Prosecution case that dispute between the parties – Deadly assault on victim by 10-12 persons carrying sharp edged weapons – Victim later succumbed to his injuries – Informant also sustained injuries – FIR by the injured informant wherein six accused named, however appellant not named but his physical description given – In the supplementary statement u/s. 161 CrPC appellant identified by name – Conviction and sentence of accused including appellant u/ss. 302, 120B, 147, 148 and 324 – Upheld by High Court – Interference with – Held: Not called for – Though FIR silent on the name of the appellant, prosecution case cannot be discarded on basis thereof, when other reliable evidence available – Colloquial variation also would not render the identification unreliable – Test identification parade-TIP for the appellant was unnecessary as he was specifically identified by the prosecution witnesses as the person who wielded sword and inflicted the injuries – Failure to conduct the TIP would not vitiate his conviction – Identity of the appellant as one of the attacking group members and his specific role in the assault established beyond doubt – Prosecution produced cogent evidence of the appellant being part of a conspiracy by all the accused in the assault which led to the death of the victim and injuries to the informant and others – Evidence – First Information Report – Test Identification Parade.
Draft Rules of Criminal Practice, 2021: Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials’ – On facts, confusion created by multiple versions of statements and depositions in the projection of either side – Reference to the Guidelines – Necessity of.
Dismissing the appeal, the Court
HELD: 1.1 The appellant was not named in the FIR by the injured informant. The prosecution however tried to co-relate the appellant as the one who was described as ‘heightened person having long nose’ in the FIR. This has been done through the evidence of PW1, PW2, PW4, PW6 as recorded herein. [Para 12][509-H; 510-A]
1.2 The contention of the appellant’s counsel that the supplementary statements identifying the accused by name were not produced before the courts below, do not appear to be entirely correct. The trial court records clearly reveal that PW1’s statement identifying the accused by name, was available before the Sessions Court. It is also plausible that the accused with the alias Lala could be referred by the witnesses as ‘Lalya’. The colloquial variation is not so far removed so as to render the identification unreliable, particularly when no other person by such name is amongst the accused group. [Para 13][510-B-C]
1.3. While it is true that the FIR is silent on the name of the appellant, this Court cannot entirely throw out the prosecutorial case on such a basis as other reliable evidence are available in the case. The FIR is certainly the starting point of the investigation, but it is well within the rights of the prosecution to produce witness statements as they progress further into the investigation and unearth the specific roles of accused person. The FIR as is known, only sets the investigative machinery, into motion. [Para 14][510-D-E]
1.4. In the instant matter, two courts have concurrently concluded that appellant’s name not being specifically mentioned in the FIR, would not justify his acquittal as he was specifically identified by PW2, PW4 and PW6. In view of his positive identification by the eye witnesses, the TIP not being conducted, was held to be immaterial. The eye witnesses here have ascribed the same specific role to the appellant and narrated the events in same chronology, without material discrepancies. Furthermore, this case involves multiple persons attacking in a group with deadly weapons and it is not reasonable to expect recollection of every minute details by the eyewitnesses. [Para 15][510-E-G]
1.5. Test Identification Parade was unnecessary in the instant case as the identity of the appellant was known to the witnesses and he was specifically identified by PW1 and PW2 as the person who wielded sword and inflicted the injuries. In the face of appellant’s such identification by name in the testimony of the eye witnesses, it can be safely concluded that the failure to conduct the TIP for the appellant would not vitiate his conviction. [Para 17][511-F-G]
1.6. The identity of the appellant as one of the attacking group members and his specific role in the assault is established beyond doubt. The prosecution has produced cogent evidence of the appellant being part of a conspiracy by all the accused in the assault which led to the death of the victim and injuries to PW1 and others. As such, the conviction of the appellant by the trial court, as upheld by the High Court, cannot be faulted. Thus, there are no grounds to interfere with the impugnment judgment of the High Court. [Paras 18, 19][511-G-H; 512-A-B] Munshi Singh Gautam v. State of M.P. (2005) 9 SCC
631 : [2004] 5 Suppl. SCR 1092 – relied on.
In Re: To Issue Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials’ Suo Moto Writ (Crl.) No.1/2017 – referred to.
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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