Raj Kumar @ Bheema vs State of NCT of Delhi

Held: The identification of appellant was done by PW-18 while being examined through video conferencing, nearly eight and a half years after the incident – PW-18 used to wear spectacles as her distance vision was weak – At the time of dock identification, the witness was not wearing spectacles – Not even a bare suggestion was put to her by the Public Prosecutor that she had been taken to the police station or jail for TIP proceedings – The witness emphatically denied the suggestion of the Public Prosecutor that she had gone to the Court on 26.12.2008, and identified the assailants – The possibility of identification of the accused-appellant by PW-18 in Court, after a lapse of nearly eight and a half years from the incident, is extremely unlikely – PW-18 was not wearing spectacles at the time of her deposition via video conferencing – In this background, her purported identification does not inspire confidence – In her cross-examination, the witness (PW-18) stated that the accused was wearing a black coloured shirt, which is an improvement introduced for the first time after nearly eight and a half years – In view of the aforesaid glaring facts, it would be unsafe to place reliance on her evidence regarding the identification of the accused – Further, the very sanctity of the TIP stands under a serious cloud of doubt when it is manifest that PW-18 did not go for participating in any such identification parade – When it stands established from the record that the TIP attempted by the prosecution was fundamentally flawed, and a doubt is created that the identifying witness herself may not even have been present to participate therein, the very foundation of the identification proceedings falls flat to the ground – As far as recovery of articles looted is concerned, PW-18 was not made to identify the said articles during her testimony and son of PW-18, who is stated to have identified the articles in the TIP, was not examined during the trial – Thus, there is no credible proof that they are the looted articles – The blood stains on the pant could not be matched with the blood sample lifted from the scene of occurrence or with the blood group of the deceased or the injured victim – On this count alone, guilt cannot be fastened upon the appellant, as the recovery by itself is not sufficient to prove the case beyond reasonable doubt – Therefore, the judgment passed by the High Court as well as trial Court is set aside and the accused-appellant is acquitted of the charges. [Paras 50, 52, 54, 56, 57, 65, 67, 68, 71] Evidence Act, 1872 – ss.144, 145 – Bharatiya Sakshya Adhiniyam, 2023 – ss.147, 148 – When evidence of witness is recorded over video conferencing:

Held: A plain reading of the above provisions would make it clear that wherever questions are required to be put as to the matters in writing/previous statements in writing, the attention of the witness must be drawn to the document/statement itself – Thus, a question would arise as to how this procedure would be followed in cases where the evidence of the witness is being recorded over video conferencing – In this age of advancement of technology, instances are galore where, the evidence of witnesses are being recorded over video conferencing – In such circumstances, none of the parties should be put to a dis-advantage merely because the witness is not in attendance before the Court, and the document/previous statement in writing with which such witness is sought to be confronted, cannot be shown/put to him – Therefore, this Court hereby clarifies and directs that in every case where, it is proposed to record the statement of a witness over video conferencing and any previous written statement of such witness or a matter in writing is available and the party concerned is desirous of confronting the witness with such previous statement/matter in writing, the trial Court shall ensure that a copy of the statement/document is transmitted to the witness through electronic transmission mode and the procedure provided u/s.147 and s.148 of the Bharatiya Sakshya Adhiniyam (corresponding s.144 and s.145 of the Evidence Act) is followed in the letter and spirit, so as to safeguard the fairness and integrity of the trial. [Paras 46-48]

Evidence Act, 1872 – Test Identification Parade (TIP) – Where the witnesses have had an opportunity to see the accused prior to the holding of the TIP:

Held: It is trite that where the witnesses have had an opportunity to see the accused prior to the holding of the TIP, the evidentiary worth of such proceedings stands considerably diminished – It is the duty of the prosecution to establish beyond doubt that right from the time of arrest, the accused was kept baparda to rule out the possibility of his face being seen before the identification proceedings are conducted – If the witnesses have had any opportunity to see the accused before the TIP–whether physically or through photographs–the credibility and sanctity of the identification proceedings would stand seriously compromised. [Para 62]