Daya Ram & Another vs State Of U.P.
2017 Latest Caselaw 1575 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40 
 
Case :- CRIMINAL APPEAL No. - 6756 of 2008
 

 
Appellant :- Daya Ram & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.K. Mishra,Amit Tripathi,H.P. Singh,I.M.Khan,Manish Tiwary,Nazrul Islam Jafri,R.K. Singh,R.K.S. Parmar,S.V.Singh,V.P.S.Kashyap
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Krishna Pratap Singh,J.

The Order of the Court was delivered by

Bala Krishna Narayana,J.- The argument of this case concluded on 02.06.2017. We then made the following order :-

"Heard Sri Amit Tripathi, learned counsel for the appellant, Sri Rajeev Gupta, learned AGA and Smt. Manju Thakur, learned brief holder for the State.

We are making the operative order now. But we will give the reasons later.

The appeal is allowed.

The impugned judgement and order dated 15.09.2008 passed by Special Judge (D.A.A.)/ Additional Sessions Judge, Court no.5, Etah, in Special Sessions Trial No. 99 of 2006 and Special Sessions Trial No. 41 of 2007, convicting and sentencing the appellants u/s 364 A to undergo life imprisonment with fine of Rs. 5000/- each, is set-aside. The appellants, Daya Ram and Murari Yadav are acquitted of all the charges.

Both the appellants are in jail. They shall be released forthwith unless they are wanted in some other case subject to their complying with Section 437A Cr.P.C."

Here are the reasons :- This criminal appeal has been preferred against the judgment and order dated 15.09.2008 passed by Special Judge (D.A.A.)/ Additional Sessions Judge, Court no.5, Etah, in Special Sessions Trial No. 99 of 2006 and Special Sessions Trial No. 41 of 2007, convicting and sentencing the appellants u/s 364 A to undergo life imprisonment with fine of Rs. 5000/- each.

Briefly stated, the facts of this case are that while PW-1 Constable Harish Pal was posted at police outpost Kachala P.S. Soron, District Etah on convoy duty along with Constables Jagdish Prasad Gautam, Jaiveer Singh and Constable Kailash Chandra, he received an important information on his phone at about 7.00 p.m. upon which he left for Nagaria on his motorcycle along with his loaded SLR after informing his colleagues that he was going to Nagaria to verify the veracity of the information received by him and he would return within 15-20 minutes but when he did not return despite lapse of half an hour his colleagues became anxious and started searching him. When they reached near Nagaria police out post they met one Mukesh r/o Bamauli who told them that one motorcycle on which police was written was lying unclaimed near Hasanpur bifurcation entangled in a rope and no-one was present there. On receiving the aforesaid information Constables Jagdish Prasad, Jaiveer Singh and Kailash Chandra proceeded to Hasanpur crossing along with Mukesh and on reaching there they saw that Harishpal's Bajaj Discover motorcycle was lying on the road entangled in a plastic rope one end whereof was tied around an eucalyptus tree on the side of the road. Despite making a hectic search for Harishpal in the nearby areas his colleagues failed to locate his whereabouts, Constable Jagdish Prasad then made a written report of the aforesaid fact on 24.07.2006 to the Officer-in-Charge, P.S. Soron, which was recorded in G.D. as missing report and thereafter the police personnel of P.S. Soron launched a massive search for Constable Harish Pal within the territorial area of P.S. Soron.

On 31.07.2006 at about 6.15 a.m. P.W.-4 Mahendra Pratap Singh brother of Constable Harishpal Singh gave a written complaint at P.S. Soron, District Etah stating therein that he had lodged a missing report with regard to his brother Constable Harish Pal on 31.07.2006, who while on duty at police out post Kachala, P.S. Soron, District Etah on 24.07.2006 had left the police out post Kachala at about 7.30 p.m. with the object of verifying the important information was received by him on his mobile no. 9798064254 between 7-7.30 p.m. promising his colleagues to return back within 15-20 minutes but he did not come back till 8.00 p.m.. On the same day a motorcyclist had informed the police out post Kachala that a motorcycle tied with a rope was lying on the Nagaria-Neuli road on which police personnel of P.S. Soron reached there and found a motorcycle lying there but they could not trace out Harish Pal. On 25.07.2006 one bandit had called from the cell phone no. 9837046889 on the informant's family cell phone and after introducing himself as Baba informed that he had kidnapped Harish Pal and unless a sum of Rs. 10 lakhs was paid to him as ransom, Harish Pal would not be released. He then allowed Harish Pal to speak to his wife on which he implored her to save him by paying the ransom, otherwise the kidnappers would kill him. Seven-eight similar telephone calls demanding ransom were received by him also. On the basis of the aforesaid written report case crime no. 255 of 2006 under Section 364A IPC was registered against unknown accused. Chick FIR and relevant G.D. entry vide Rapat No. 44, 21.45 hours dated 24.07.2006 was also prepared.

While In-charge S.H.O., P.S. Soron and members of his force were searching the victim Harish Pal at about 11.00 p.m., they received an information from the police informer that about 10-12 bandits were hiding with a kidnapee in the fields of Pokhi Mallah and Rajveer Mallah in village Chandawa on the road going towards Ganga ki Katri. Upon receiving the aforesaid information additional police forces were requisitioned and after dividing the police forces into three groups the police force started moving towards the hide out of the bandits from three different directions and on reaching there they saw the kidnapee Harish Pal who was gagged and whose hands were tied rounded up by 10-12 bandits, who on noticing the police starting firing at the police party. Upon which the police fired 3-4 shots at the bandits in retaliation which caused stampede amongst them and they started running away from their hide out. However, three bandits accused Ompal, Jasveer and Jai Singh were apprehended along with their weapons on the spot and the kidnapee Harish Pal was rescued. Arrested accused Ompal on being interrogated by the police force, he disclosed that Baba had invited some special person to the place from where the victim was rescued and Jasveer, Jai Singh, Rannu, Chandra Pal, Genda Lal, Sagar Baba, Murari Yadav, Bhura Jogi, Badan Singh, Rakesh Mallah, Daya Ram and Kallu were also present there at the time of encounter who managed to escape.

Memo of recovery of victim Constable Harish Pal and arrest of accused Ompal, Jasveer and Jai Singh and the weapons seized from them was prepared by PW-7 Inspector K.D.Chaudhary on the spot. On the basis of the aforesaid recovery memo case crime no. 258 of 2006 under Sections 147, 148, 149 and 307 IPC was registered against Ompal, Jasveer, Jai Singh, Rannu alias Ranveer, Chandra Pal, Genda Lal, Sagar Baba, Murari Yadav, Bhura Jogi, Badan Singh, Rakesh Mallah, Daya Ram and Kallu while case crime nos. 259, 260 and 261 of 2006 under Section 25/27 Arms Act were registered against Ompal, Jasveer and Jai Singh, who were arrested on the spot and from whom unlicensed weapon were recovered. Dayaram one of the accused in case crime no. 225 of 2006 was arrested at about 20.30 hours on 13.10.2006 by S.O. Aditya Prakash Yadav and his patrolling party consisting of S.I. Subhash Chandra Yadav, S.I. S.K.Singh, Constables Ramveer Singh, Shamsul Hasan, Chandra Pal Singh and Ramesh Babu of P.S. Kampil District Fatehgarh from a tube well in a sugarcane field in village Bhaisari along with his countrymade rifle of 315 bore while he was sitting there along with other members of the gang of Ram Sagar after an exchange of fire between the members of the police party and the bandits while other gangsters manage to escape. The memo of arrest of Dayaram and recovery of one countrymade rifle from him was prepared on the spot by Aditya Prakash Yadav, S.H.O., P.S.Kampil, District Fatehgarh.

On the basis of the aforesaid recovery memo case crime nos. 436 and 437 of 2006 under Sections 307 and 25/27 Arms Act respectively were registered against accused Dayaram at P.S. Kampil, District Fatehgarh on 13.10.2006 at about 13.30 hours.

After completion of investigation charge sheets were submitted against accused Ompal, Jasveer, Jai Singh and Dayaram under Section 364-A IPC before CJM, Etah since offence mentioned in charge sheet was triable exclusively by the Court of Sessions, C.J.M. Etah committed the case for trial of the accused to Sessions Judge, Etah where it was registered and numbered as S.T. No. 99 of 2006, State Vs. Ompal and others and transferred for trial to the court of Special Judge, DAA/Additional Sessions Judge, Court No.5 Etah. After the arrest of co-accused Murari Yadav separate charge sheet was submitted against him under Section 364-A IPC before CJM, Etah who committed the case for trial to the court of Sessions Judge, Etah where it was registered and numbered as S.T. No. 41 of 2007 and transferred for trial to the court of Special Judge, DAA/Additional Sessions Judge, Court No.5 Etah. Since other accused, who were absconding and co-accused Chandra Pal had obtained an interim order of stay from the Hon'ble High Court separate charge sheets under Section 364A IPC against co-accused Chandra Pal and against co-accused Kallu and Rannu alias Ranvir, Genda Lal, Sagar Baba, Bhura Jogi, Badan Singh and Rakesh Mallah as absconders, co-accused Kallu and Rannu alias Ranvir were submitted to the court of C.J.M. Etah as absconders. However, Kallu and Rannu @ Ranvir faced the trial for the offence under Section 364A IPC in S.T. No 50 of 2007. Since the three Sessions Trial nos. 99 of 2006, 41 of 2007 and 50 of 2007 arose from the same occurrence and the same crime, all the three Sessions Trial were consolidated and S.T. No. 99 of 2006 was the leading trial.

Learned Special Judge, DAA/ Aditional Sessions Judge, Court No. 5, Etah on the basis of the material collected during the investigation and after hearing the prosecution and the accused on the point of charge framed charge under Section 364-A IPC against all the accused. The accused abjured the charge and claimed for trial.

The prosecution in order to prove its case examined as many as nine witness, namely, PW-1 Harish Pal (kidnapee), PW-2 Smt. Pravin Lata @ Baby, PW-3 Constable Jagdish Prasad Gautam, PW-4 Mahendra Pratap Singh, PW-5 S.S.I. Sher Bahadur Singh, PW-6 S.I. Bhajan Lal Yadav, PW-7 Inspector K.D.Chaudhary, PW-8 S.I. Ganga Singh, PW-9 S.I. Narendra Singh Badgoti.

PW-3 Constable Jagdish Prasad Gautam proved the missing report Ext.Ka-1, PW-4 Mahendra Pratap Singh proved the report given by him at P.S. Soron regarding the kidnapping of Harish Pal, Ext.Ka-2, PW-5 S.I.-Sher Bahadur Singh proved the recovery memo of the victim Ext.Ka-3, PW-7 Inspector K.D.Chaudhary proved the site plans of the place from where the victim's motorcycle was recovered, Ext.Ka-4 and the place from where the victim was rescued Ext.Ka-5 and charge sheets submitted against accused Ompal, Jasveer and Jai Singh Ext.Ka-6, P.W.-8 S.I. Ganga Singh proved G.D. entry of registration of case crime no. 225 of 2006, Ext.Ka-7, P.W.-9 S.I. Narendra Singh Badgoti proved the charge sheet submitted by him against Murari Yadav Ext.Ka-7 and against the absconding accused Ext.Ka-8.

PW-1 Harish Pal, victim and PW-2 Pravin Lata wife of the victim and PW-3 Constable Jagdish Prasad Gautam and PW-4 Mahendra Pratap Singh were examined as witnesses of fact while PW-5 S.I. Sher Bahadur Singh was examined to prove the police encounter with the bandits and the recovery of victim PW-1 Harish Pal from them and arrest of the three bandits Ompal, Jasveer and Jaiveer on the spot along with their weapons.

The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication.

Learned Special Judge after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary evidence convicted the accused appellants Dayaram in S.T. No. 99 of 2006, Murari Yadav in S.T. No. 41 of 2007 under Section 364A and sentenced them to serve imprisonment for life and a fine of Rs. 5000/- each together with default clause, while remaining accused were acquitted of all the charges.

Hence this appeal.

It has been submitted by Sri Amit Tripathi, learned counsel for the appellant that the prosecution having totally failed to prove by any cogent evidence that the appellants had either kidnapped the victim Constable Harish Pal or demanded any ransom from him or any member of his family, the trial court committed a patent error of law in convicting the appellants and sentencing them to imprisonment for life under Section 364A IPC. He next submitted that from the evidence of PW-1 Harish Pal (victim) and PW-4 informant Mahendra Pratap Singh itself the entire prosecution case regarding the kidnappee Harish Pal being rescued by the police from the kidnappers after a police encounter which had taken place between the bandits and the members of the police party on 05.08.2006 at about 11 p.m. in the field of Pokhi Mallah and Rajveer Mallah in village Chanduwa after which three bandits Ompal, Jaiveer and Jasveer Singh were apprehended by police force on the spot along with their weapons stands totally demolished as PW-1 Harish Pal and PW-4 Mahendra Pratap Singh have said in their examination in chief itself that the kidnappers had set the victim Harish Pal free about two hours after his brother PW-4 Mahendra Pratap Singh had paid a sum of Rs. Two Lakhs as ransom to the chief of the bandits at about 5.00 p.m. at a place near Ganga ki Katri and after about 1-1/2 hours of his release he had met his brother Mahendra Pratap Singh and his other family members who took him to their village. Moreover both of them denied in their cross examination that either the victim was rescued by the police force after an encounter with the bandits or any accused was arrested on the spot or even any encounter between the police and the bandits had taken place.

He also submitted that only evidence on record indicating at the complicity of the appellants in the alleged kidnapping of the PW-1 Harish Pal is that of their identification by PW-1 Harish Pal (victim) and PW-4 Mahendra Pratap Singh for the first time in the Court which was not preceded by any test identification parade which is without any evidentiary value as it is not the case of the prosecution that the appellants were previously known to PW-1 or PW-4. The allegation made by PW-1 in his evidence that he was severely beaten by appellant no.2 causing fracture and other injuries to him has not been corroborated by any medical evidence.

Per contra Sri Rajiv Gupta learned AGA appearing for the State submitted that it is fully proved from the evidence of PW-1 that the appellants had kidnapped him for ransom. The conviction of the appellants recorded by the trial court under Section 364-A IPC and sentence awarded to them are based upon cogent evidence and relevant considerations and require no interference. This appeal lacks merit and is liable to be dismissed.

We have very carefully considered the submissions advanced before us and perused the entire lower court record.

We now proceed to examine whether the prosecution on the basis of the evidence on record succeeded in proving its case against the accused-appellants beyond all reasonable doubts or not.

PW-1 Constable Harish Pal victim, who is the star witness in this case has in his examination-in-chief deposed that before being posted at P.S. Soron he was posted at P.S. Dholna where he became acquainted with the police informer Gendalal, who had promised him to give important informations pertaining to the criminals of the area. On 24.07.2006, while he was posted at Kachala police out post, P.S. Soron, District Etah, he received several telephone calls from Gendalal before 7.30 p.m. asking him to come to Neuli crossing in Nagaria. Apart from Gendalal he had also received telephone call from Jai Singh resident of Neuli who told him that he was with Gendalal and they had very important information pertaining to some bandits and for disclosing the aforesaid information to him he had called him to Neuli crossing in Nagaria. Believing their information to be true he left for Nagaria at about 7.30 p.m. on his motorcycle along with his loaded SLR after informing Constable Jagdish Prasad Gautam that he would return within half an hour.

He further deposed that when he reached Nagaria crossing on his motorcycle he neither found Gendalal nor Jai Singh there. At that moment he received a telephone call from Gendalal informing him that he was waiting for him on the culvert near Hasanpur crossing and asked him to come here. Thereafter he received another phone call from Jai Singh, who by changing his voice introduced himself as uncle-in-law of his relative Vijendra Singh of Hasanpur and asked him to reach Hasanpur culvert. When after crossing the Hasanpur culvert he reached a spot between Hasanpur and Neuli, he saw there that the road was blocked by a rope which was pulled across the road and as soon as he stopped his motorcycle seven bandits who suddenly emerged from the road side pushed him, as a result of which he fell down on the ground on which the bandits exclaimed that they were after him for the last three days and ultimately with the help of Gendalal they had succeeded in catching him. He identified appellants Dayaram and Murari Yadav as the bandits, who were present at the place and at time of kidnapping, he however, failed to identify the other accused. He further deposed that the bandits after catching him had snatched his mobile from him and taken him through Ganga ki Katri to a place where the leader of their gang Baba Sagar was sitting. Gendalal introduced him to Baba and ordered him to touch his feet which he reluctantly did under compulsion.

He also deposed that on 25.07.2006 at about 9.30 a.m. he was allowed to speak to his wife on telephone by Baba Sagar, who after introducing himself to her had demanded Rs. 10 lakhs as ransom for his release. He had then narrated the entire episode to his wife and Baba Sagar had told him that his family members were arranging the money to pay the ransom. He also deposed that he was given severe beating by appellant Murari Yadav resulting severe injuries to him including a fracture.

He also deposed in his examination-in-chief that on 05.08.2006 his brother came to the place intimated by bandits to him for payment of ransom and paid Rs. Two lakhs as ransom to them and two hours later he was released by them and after walking for about 1-1/2 hours he met his brother Mahendra Pratap Singh PW-4.

PW-4 Mahendra Pratap Singh in his evidence tendered before the trial court supported the prosecution case as spelt out in the written report dated 31.07.2006 and proved the same as Ext.Ka-2. He further deposed that the bandits reduced the initial demand of ransom amount from Rs. Ten Lakhs made by them from the family members of the victim to Rs. Two Lakhs to which they agreed. Thereafter Baba Sagar had directed him telephonically to come with Rs. Two Lakhs to a place called Barauna Ki Katri on 04.01.2006 at about 5.00 p.m. where one person named Khare would meet him and who would take him to Baba Sagar's hide out. He further deposed that he along with his relatives had walked upon Barauna Ki Katri at the time intimated to him by Baba Sagar, where they met Khare, who asked his relatives to stay back on the road and took him alone to village Barauna from where they crossed the Ganga river and reached a place where he met with four persons whom he would recognized. PW-4 further deposed that appellant Murari Yadav and Dayaram, who were present in the court were amongst, the four persons whom he had met after crossing the Ganga river and who after receiving the ransom amount Rs. two lakhs told him that his brothers will return after 1/2 hours. Thereafter he kept waiting for his brother till 7.00 p.m. but his brother did not come on which he became suspicious and contacted the bandits on phone, who informed him that he had been released and would be joining him in ten minutes. However, his brother Harish Pal met at about 8.00 p.m. and at that time he was limping. He had informed his family members telephonically that his brother had returned and thereafter he alongwith other relatives had taken Harish Pal to their home in Kasganj from where they had informed the police station Soron on phone about the return of Harish Pal, upon which the police personnel of P.S. Soron took Harish Pal with them on the next morning.

From the perusal of the testimonies of PW-1 and PW-2 it transpires that PW-1 Harish Pal had seen the accused-appellants only at the time of kidnapping which had admittedly taken place between 7.30 and 8.00 p.m. on 24.07.2006 and thereafter he had seen them for the first time in the Court. Both the appellants were neither known to him previously nor he knew the name of their village. Police had not get any test identification parade of the appellants conducted for getting them identified as the perpetrators of the crime. PW-1 had further deposed that he was tortured and beaten by appellant no.1 Murari Lal Yadav as a result of which he had received a fractures. His injuries were examined in village Soron but he was not aware whether any fracture was detected or not (page 35 of the paper book) while PW-4 had seen the appellants only at the time when they along with two other persons had come to collect the ransom money in the evening of 04.08.2006 and to whom ransom amount has paid. PW-4 has also admitted in his cross examination on page 48 of the paper book that appellants Murari Yadav and Dayaram were not known to him previously and he had seen both of them for the first time at Katri on 04.08.2006 and thereafter he had seen them for the first time in the court. He also admitted that the police had not conducted any test identification parade for getting the appellants identified by him as the persons to whom he had paid the ransom amount.

It is noteworthy that both the witnesses PW-1 Harish Pal and PW-4 Mahednra Pratap Singh have categorically denied that either any encounter had taken place between the bandits and the police or victim Harish Pal was rescued by the police from the bandits or any bandits were arrested on the spot.

The only evidence on record indicating at the complicity of the appellants in the kidnapping of PW-1 Harish Pal and payment of ransom by PW-4 Mahendra Pratap Singh to the four persons sent by Baba Sagar to collect ransom amount from PW-4 Mahendra Pratap Singh including the appellants is that of their identification by PW-1 Harish pal and PW-4 Mahendra Pratap Singh, who are close relatives is not corroborated by any other evidence. The appellants were neither arrested on the spot nor they were subjected to any test identification parade before being produced in the court for ascertaining their complicity.

The question which arises for consideration before us in this case is that whether under the facts and circumstances of the case the evidence of identification of the accused-appellants by PW-1 Harish Pal and PW-4 Mahendra Pratap Singh in the absence of any corroboration by any other evidence has any evidentiary value or not.

The issue whether the identification of an accused by the witness for the first time in the Court without being preceded by any test identification parade has any evidentiary value or not has been examined by the Hon'ble Apex Court in several cases.

In Suresh Chandra Bahri vs. State of Bihar : 1995 Supp (1) SCC 80 this Court held that it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. Thereafter this Court observed :-

"But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."

In State of Uttar Pradesh vs. Boota Singh and others : (1979) 1 SCC 31 this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.

In Ramanbhai Naranbhai Patel and others vs. State of Gujarat : (2000) 1 SCC 358 after considering the earlier decisions this Court observed :-

"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) vs. V.C. Shukla wherein also Fazal Ali, J. speaking for a three-Jude Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eyewitnesses. It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless ; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned counsel for the appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha vs. State of Maharashtra and State of H.P. vs. Lekh Raj had not considered the aforesaid three-Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three-Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned counsel for the appellants that the evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them."

Although the Apex court in the case of Malkhan Singh and others Versus State of Madhya Pradesh (2003) 5 SCC 746 had reiterated that the evidence of identification in Court is a substantive evidence but the Apex Court in para 7 and 10 of the same judgement has observed as hereunder:

7.It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.............

10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.

In the Case of Balbir Versus Vazir & Ors. reported in 2014 Vol. 12 SCC 670 the Apex Court, had distinguishing the facts of the case of Malkhan Singh (supra) has held as hereunder:

"What weight must be attached to the evidence of identification in Court, is a matter for the Court of fact to examine"

The case of Malkhan Singh (supra) was a case of gang rape where several persons had committed rape with the prosecutrix one by one giving ample opportunity to the prosecutrix to have a close look and remember their faces on account of traumatic and tragic experience she had undergone and the faces of the accused must have got imprinted in her memory and there was no chance of her making mistake about their identity and in the backdrop of the aforesaid facts, the identification of accused by the prosecutrix for the first time in the open court was held reliable in Malkhan Singh's case.

Thus from the reading of the aforesaid judgements the legal position which emerges is that the identification of an accused in the Court is substantive evidence and can be relied upon even in the absence of any test identification parade when the accused was previously known to the witness or the witness had an opportunity to have a clear look at the accused enabling him to remember his face where the accused was not previously known to him but in a case where the accused is not known to the witness previously and he did not have an opportunity to view the accused clearly during the course of occurrence or for a sufficiently long time or where the incident had taken place in a flash of moment in dark, the identification of the accused for the first time in the court shall be valueless in case the same is not preceded by test identification parade. The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused persons and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witneses in court as to the identity of the accused, who are strangers to them, in the form of earlier identification proceeding.

Coming to the facts of the present case, we find that the victim was kidnapped on 24.07.2006 between 7.30-8.00 from a place between villages Hasanpur and Neuli by seven bandits.

PW-1 has categorically deposed that he had seen the accused-appellants at the time of kidnapping. Although he has alleged in his evidence that he was severely beaten and tortured by appellant no.2 Murari Yadav, on account of which he sustained a fracture but neither there is any evidence on record that the injuries of PW-1 were examined nor there is any injury report of PW-1 on record. We have very carefully perused the testimonies of PW-5 and PW-7, but we do not find any mention in their evidence that after the victim Harish Pal was recovered, any injury was noted on his person or he had been medically examined or any injury report of PW-1 was prepared. More over in his entire statement PW-1 Harish pal has even failed to specify that any bone of his body was fractured. In the absence of any corroboration by medical evidence, we find it difficult to believe the evidence of PW-1 Harish Pal vis-a-vis his being beaten by appellant no.2 Murari Yadav on account of which he could have remembered his face even after lapsed of one year. Similarly PW-4 has also deposed that he had seen the appellants for the first time at the time of making payment of ransom, he has neither disclosed in his testimony the time at which the ransom was paid by him to the four persons sent by Baba Sagar to collect the ransom amount who included the appellants nor whether there was sufficient light or it was dark at the time at the place where the ransom amount was paid. Although PW-1 (on page-35 of the paper book) in his cross examination has stated that after being released on 05.08.2006, he had reached his house at about 6.30.-7.00 p.m. but PW-4 (on page- 48 of the paper book) but PW-2 has in his cross examination deposed that he had met his brother at 8.00 p.m. on 04.08.2006. PW-4 Mahendra Pratap Singh has further deposed that after he and his family were joined by his brother Harish Pal, they had left for their village and had reached there at about 11.00 p.m.. From the evidence of PW-4 Mahendra Pratap Singh, it is not clear whether at the time when the ransom amount was paid by him to the emissaries of Baba Sagar whether it was dark or there was sufficient natural light which would have enabled him to have a look at the persons who had come to collect the ransom amount in the absence of any reliable evidence on record interalia with regard to the time at which the ransom was paid by PW-4 Mahendra Pratap to the members of the gang of Baba Sagar and indicating that at the time there was sufficient natural light at the place of collection of ransom money, we find it difficult to believe the evidence of PW-4 Mahendra Pratap that he had seen the faces of four persons who had come to collect the ransom amounts and the appellants were amongst them and he remembered the faces of the appellants so distinctly that he could identify them with certainty when he saw them in the court for the first time after a lapse of more than one year from the date of alleged payment of ransom amount to them and their accomplices.

Thus upon a careful scrutiny of the evidence of PW-1 and PW-4 it transpires that neither PW-1 had an opportunity to view the occurrence for a sufficiently long time during the course of occurrence and at the time of payment of ransom. Admittedly the kidnapping had taken place in dark and there is no evidence on record showing that place of occurrence was illuminated, which would have enabled PW-1 to recognize the bandits.

Thus in view of the above, we hold that evidentiary value can be attached to the identification of the appellants by PW-1 and PW-4 for the first time in the court without prior test identification, which would have strengthened the trustworthiness of the evidence of identification as admittedly both PW-1 and PW-2 were total strangers who had just a fleeting glimpse of the persons identified by them for the first time in the court. Moreover the irreconcilable contradictions in the testimonies of PW-1 and PW-4 and the police version with regard to the manner in which PW-1 Harish Pal was released by the bandits whether after payment of ransom money without any police encounter as deposed by PW-1 Harish Pal and PW-4 Mahendra Pratap Singh or he was rescued by the police after a brief encounter with the bandits after which three accused were arrested on the spot, which was sought to be proved by the prosecution by examining PW-5 S.I. Sher Bahadur Singh, who proved the memo of arrest of Ompal, Jaiveer and Jasveer Singh on the spot and recovery of PW-1 Harish Pal ( victim ) from a place near the sugarcane field of one Ramvir on 06.08.2006 at about 00.15 hours and PW-7 Inspector K.D.Chaudhary renders the entire prosecution story regarding kidnapping of the victim PW-1 Harish Pal and his being released after payment of ransom as claimed by PW-1 Harish Pal and PW-4 Mahendra Pratap Singh or is being rescued by the police after a police encounter untrustworthy and unreliable.

As far as the issue of demand of payment of ransom is concerned in this case PW-1 Haish Pal, PW-2 Pravin Lata alias Baby and PW-4 Mahendra Pratap Singh had deposed in unison that the ransom was demanded by Baba Sagar and the ransom money was paid to the members of his gang. Since the prosecution has failed to prove by any cogent evidence that the appellants were amongst those four persons to whom PW-4 Mahendra Pratap Singh had failed to pay the ransom amount, we hold that neither the appellants had demanded any ransom for the release of victim Harish Pal from his family members nor any ransom amount was paid to them.

Thus, in view of the foregoing discussions, we find that the prosecution has miserably failed to bring on record by any cogent and reliable evidence for proving that appellants had either kidnapped the victim PW-1 Harish Pal or any ransom was paid by Mahendra Pratap Singh to them for seeking his release. There are irreconcilable discrepancies in the testimonies of prosecution witnesses with regard to the manner in which the victim Harish Pal was recovered/ rescued from the bandits which affect the core of the prosecution story rendering it wholly unreliable and unworthy of any credence. Hence the recorded conviction of the appellants and the sentences awarded to them by the trial court cannot be sustained and are liable to be set aside.

These are the reasons upon which we allowed this criminal appeal.

Order Date :- 02.06.2017

Abhishek Sri./SA