Burdu @ Dinesh @ Krishna S/O. ... vs State Of Maharashtra Thr. P.S.O. ...
2021 Latest Caselaw 15310 Bom

                                           1                               apeal-380-18final.odt



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH: NAGPUR

                         CRIMINAL APPEAL NO. 380 OF 2018

  1. Budru @ Dinesh @ Krishna S/o.
     Rajwanshi Siram,
     Aged: about 29 years, Occ. Labour,
     R/o. Bhave, Post Etar, Tah. Chukhandanl,
     Dist. Rajnandgaon (C.G.).

  2. Dinesh @ Arjun @ Santaram S/o.
     Maharu Madavi,
     Aged: 26 years, Occ. Labour,
     R/o. Errugatta, Post Kasansur,
     Tah. Ettapalli, Dist. Gadchiroli.                                    . . . APPELLANTS

                          ...V E R S U S..

  State of Maharashtra through
  P.S.O. Chichgarh, Dist. Gondia.                                       . . . RESPONDENT

 ------------------------------------------------------------------------------------------------
 Shri H. P. Lingayat, Advocate for appellants.
 Shri T. A. Mirza, A.P. P. for respondent/State.
 -----------------------------------------------------------------------------------------------

                  CORAM:- M. S. SONAK AND
                          PUSHPA V. GANEDIWALA, JJ.

RESERVED ON:- 21.10.2021

PRONOUNCED ON:- 26.10.2021

JUDGMENT (PER: M. S. SONAK, J.):-

1. Heard learned counsel for the parties.

2. This appeal is directed against the judgment and order

dated 17.05.2018 made by the learned Sessions Judge, Gondia in

2 apeal-380-18final.odt

Sessions Trial No. 77/2012 convicting the appellant i.e. accused nos. 3

(A3) and accused no. 4 (A4) of the offenses punishable under Sections

143, 148, 120B, 302, 307 read with Sections 149 and 395 of the

Indian Penal Code (IPC). By the same judgment and order, however,

the appellants were acquitted of the offenses punishable under

Sections 18, 20, and 23 of Unlawful Activities (Prevention) Act and

under Sections 3 and 4 of read with Section 25 of the Arms Act and

Section 5 of the Explosive Substance Act. Further by the same

judgment and order, the accused nos. 1 and 2 were acquitted of all the

charges leveled against them. This appeal is therefore instituted by the

Appellants i.e. original accused nos. 3 (A3) and accused no. 4 (A4) and

the same is restricted to that part of the judgment and order dated

17.05.2018 convicting and sentencing the Appellants inter alia, to

rigorous imprisonment for life.

3. The case of the prosecution is that on 01.12.2011 at about

7.30 a.m. API Raut (PW11), who was on duty at A.O.P. Ganutola

received a phone call from Fagnu Kallo (A1) that Naxalites had put up

posters and banners at Mispiri Dhamditola. Upon verifying this

information, API Raut (PW11) deputed five constables Ajay Bansod

(PW1), Hasil Bhandarkar (PW2), Santosh Chute (PW3), Raju

Nandeshwar (PW4), and Manoj Binzade (deceased), who came to the

site and removed the posters and banners. These police constables

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went on two motorcycles to the spot and while returning i.e. at a

distance of 1 k.m. from the spot where the posters and banners were

put up, these five police constables were confronted by a mob of about

60/70 Naxalites, who rushed towards them, hurled abuses and even

started firing on them. The five police constables left their motorcycles

at the spot and started running in the opposite direction with the

Naxalites chasing and firing at them.

4. The prosecution case is that some of the police constables

reached the house of Fagnu Kallo (A1), knocked at his door by

shouting "ekek cpkvks" but, nobody opened the door. Then they

managed to come to village Gujurbadga and with the help of cycles

that they found with two local boys, the police constables reached

village Kadikasa and thereafter to A.O.P. Ganutola through the forest

area. Here the constables found PC Bansod (PW1) who told them

that PC Binzade (deceased) was fired upon and killed by the Naxalites.

Based on all this, P.C. Bansod (PW1) lodged a report (Exh.31) at

Chichgrah Police Station. This was reduced in writing by PI Deshmukh

(PW15) and lodged as First Information Report (Exh. 32).

5. In the FIR, only Fagnu Kallo (A1) was named as accused

along with 70/80 unidentified Naxalites. It is the case of the

prosecution that involvement of the accused nos. 2, 3, and 4 was

4 apeal-380-18final.odt

revealed only as the investigation progressed and ultimately a charge

sheet was filed against all the four accused persons alleging the

commission of several offenses under the IPC, Unlawful Activities

(Prevention) Act, Arms Act, and Explosive Substances Act as detailed

above.

6. The record indicates that though the date of the incident

was 01.12.2011, the appellant i.e. Budru @ Dinesh @ Krishna S/o.

Rajwanshi Siram (A3) and Dinesh @ Arjun @ Santaram S/o. Maharu

Madavi (A4) were arrested only on 02.12.2012 i.e. after a year. The

charges were framed against the appellants on 09.08.2016 i.e. after

almost 5 years. The appellants denied their guilt and claimed to be

tried. The prosecution examined, in all, 18 witnesses, and the

appellants were questioned under Section 313 of the Code of Criminal

Procedure to which they responded that they were falsely implicated in

the matter. Despite the opportunity, no defense evidence was led by

the appellants. Ultimately, the learned Sessions Judge, by the

impugned judgment and order, has convicted the appellants and

sentenced them, inter alia, to suffer life imprisonment. Hence, the

present appeal.

7. Mr. H. P. Lingayat, learned counsel for the appellants at

the outset submitted that testimony of alleged eye-witnesses PW1 to

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PW4 was not at all credible, particularly, on the aspect of identification

of the appellants. He points out that these witnesses, in their

statements to the police, had neither described the appellants nor at

any time claimed that they were in a position to identify the

appellants. He points out that Test Identification Parade (TIP) was

entirely defective and took place after almost a year from the date of

the incident. He points out that TIP took place after almost 5 weeks

after the date of arrest of the appellants. He points out the serious

breaches in holding the TIP. He points out that the so-called

identification of the appellants in the course evidence was after almost

5 years from the date of the incident. He points out that if the

prosecution version is to be believed then PW1 to PW4, at the highest,

had some fleeting vision of the assailants. He points out that 70/80

persons are alleged to have attacked PW1 to PW4. He points out that

these witnesses were on the run and the so-called identification from a

distance of over 50 meters and was inherently improbable. He submits

that the appellants have been unnecessarily roped into this matter and

there is no ground to sustain the conviction recorded against them. He

relied on Subhas & Shiv Shankar Vs. State of U. P. [AIR 1987 SC 1222] ,

Musheer Khan @ Badshah Khan Vs. State of M. P. [2010 ALL MR (CRI)

933 (SC)] and Narayn Kanu Datavale Vs. State of Maharashtra [1997

CRI. L.J. 1788] in support of his contentions on this aspect.

6 apeal-380-18final.odt

8. Mr. Lingayat also referred to the Criminal Manual and

pointed out how the TIP in the present case was contrary to the several

Regulations framed in the matter regarding the conduct of such TIP.

He submitted that proper TIP was a must in the present case and in the

absence of the same, no reliance can be placed on the so-called

identification of the Appellants by the PW1 to PW4 in the Court during

the trial.

9. Mr. Lingayat also pointed out the several inconsistencies in

the prosecution's case and submitted that evaluation of evidence by

learned Sessions Judge was not proper and consistent with the well-

settled legal principles in such matters. He submitted that there was

no legal evidence on record to convict the appellants, particularly after

A1 and A2 were acquitted by the learned Sessions Judge based almost

on the same or similar evidence.

10. Mr. Lingayat, for the aforesaid reasons submitted that

conviction of the appellants and the sentences imposed upon them

warrant interference.

11. Mr. T. A. Mirza, learned A.P.P. for respondent/State has

defended the impugned judgment and order based on reasoning

reflected therein. He submitted that there was no infirmity in the TIP

and in any case, holding such a parade was not even a mandatory legal

7 apeal-380-18final.odt

requirement. He submitted that PW1 to PW4 in the present case had

sufficient opportunity to notice the appellants, who had fired on them

and therefore, identification of the appellants by PW1 to PW4 in the

Court was itself substantive evidence that was rightly relied upon by

the learned Sessions Judge. He submitted that presence of PW1 to

PW4 at the site was not even disputed or in any case, was

undisputable. He submitted that these eye-witnesses had no good

reason to implicate the appellants falsely. He submitted that evidence

of PW1 to PW4, who were natural witnesses, was trustworthy and

reliable. He submitted that even in the absence of TIP, such evidence

ought to have been relied upon and was correctly relied upon.

12. Mr. Mirza submitted that guidelines in the Criminal Manual

for the conduct of TIP are mere administrative instructions and some

non-compliance with them does not vitiate the parade. He relies on

Ms. S Vs. Sunil Kumar [2015 ALL MR (CRI) 2001 (SC)], Ashok

Debbarama @ Achak Debbarma Vs. State of Tripura [(2014) ALL MR

(CRI) 1521], Lawrence Dias Vs. State [2018 ALL MR (CRI) 2600] and

Ajaykumar Sunilkumar Sharma Vs. State of Maharashtra [2014 ALL

MR (CRI) 2534] in support of his contentions.

13. Mr. Mirza submitted that there is overwhelming evidence

on the record to sustain the conviction of the appellants and therefore,

this appeal is liable to be dismissed.

8 apeal-380-18final.odt

14. The rival contentions now fall for our determination.

15. The most crucial issue in the present appeal concerns the

identification of the appellants as a part of a mob of about 70/80

persons, who are alleged to have confronted and fired upon the police

constables 01.12.2011. Unless the prosecution succeeds in establishing

this crucial aspect beyond a reasonable doubt, we believe that it would

be quite unsafe and even contrary to the well-established principles of

law to sustain the conviction of the Appellants in this case. Therefore,

quite correctly, both Mr. Lingayat and the learned APP focused on this

crucial aspect in this matter.

16. The present Appellants were arraigned as accused nos. 3

and 4 (A3 and A4) and one Fagnu Kallo was arraigned as accused no.

1 (A1) and Prakash @ Devidas @ Adawe Gawde was arraigned as

accused no. 2 (A2) in this matter. By the impugned judgment and

order, A1 and A2 have been acquitted by the learned Sessions Judge.

A1 was acquitted, inter alia, on the ground that he had only informed

the police authorities about the posters and banners put up by the

Naxalites, and further, he had only done his duty as Sarpanch by giving

such information to the police authorities. The learned Sessions Judge

did not find any legal evidence on record to sustain the several charges

9 apeal-380-18final.odt

framed against A1. The case of A1 can therefore be regarded as

different from the case of the Appellants and A-2.

17. But even going by the prosecution version, there was no

significant difference between the role ascribed to A2- Prakash and the

Appellants herein since all the three were alleged to be a part of the

mob of about 70-80 that attacked the police constables. The learned

Sessions Judge has, however, acquitted A2- Prakash, inter alia, on the

ground that there was no TIP conducted insofar as A2 was concerned

and in the absence of T.I.P., it would be unsafe to convict A2- Prakash

for the offenses for which he was charged.

18. Thus, implicitly, the learned Sessions Judge has accepted

the importance of identification of the accused persons in the matter of

this nature, including by holding a proper TIP that might corroborate

the so-called identification of the accused persons in the course of the

trial. Based on this very principle A2- Prakash came to be acquitted by

the learned Sessions Judge. However, when it comes to the

Appellants, we think that the learned Sessions Judge has not bestowed

sufficient consideration to the aspect of whether the TIP held in their

case was fair and proper and if not, whether their conviction could be

solely based on their so-called identification as a part of the mob of

70 -80 by PW1 to PW4 at the trial almost 5 years after the incident.

10 apeal-380-18final.odt

19. Admittedly, in the FIR which was lodged on 01.12.2011,

there was no reference to any person other than Fagnu Kallo (A1). No

doubt, there was a reference to 70/80 " unidentified Naxalites" in

addition to Fagnu Kallo (A1). Thus the FIR admittedly did not either

name or even describe the appellants herein. This is by no means fatal

to the prosecution's case but, this aspect assumes some significance

because PW1 to PW4, in their statements recorded before the police,

had neither stated that they were in a position to identify any of the

assailants nor did they offer any description of any of the assailants.

In none of the statements to the Police did PW1 to PW4 bother to give

even some rough description of the appellants and A-2.

20. There is also no dispute that the Appellants were arrested

on 02.12.2012 when the incident took place on 01.12.2011. Mr. Mirza

explained that the appellants were absconding and therefore, there

was a delay in apprehending them. This is an ordinarily acceptable

explanation. However, there is no credible explanation placed on

record by the prosecution about the basis of identifying the appellants

or concluding prima facie their complicity in the incident that took

place on 01.12.2011.

21. The explanation, if at all, offered by SDPO- Gajanan

Rajmane (PW18) was that the Appellants were already in custody in

11 apeal-380-18final.odt

connection with another case i.e. Crime No. 65/2012 at Salekasa

Police Station. He stated that he obtained a production warrant and

thereafter questioned one of the appellants I.e. Budru (A3) on

19.12.2012 i.e. almost a year after the incident. PW18 has deposed

that Budru (A3) allegedly confessed that he was at the spot of the

incident that took place on 01.12.2011 and he would also indicate the

spot where the dead body of PC Binzade was left after the firing. The

learned Sessions Judge has taken into consideration the statement of

Budru (A3) by reasoning that the spot indicated by A3 after over a

year, was indeed the spot from where the body of PC Binzade had been

recovered.

22. According to us, the aforesaid can hardly be regarded as

some valid explanation. Besides, the learned Sessions Judge erred in

relying on the statement allegedly made by A3 to the SDPO (PW18) on

19.12.2012. The statement was admittedly made to a Police Officer

and therefore, was inadmissible in evidence. Secondly, the body of PC

Binzade had been recovered on 01.12.2011 itself i.e. almost a year

before Budru (A3) allegedly made a statement to PW18. Therefore,

such a statement can hardly claim immunity or admissibility under

Section 27 of the Evidence Act. The learned Sessions Judge, therefore,

erred in relying on such a statement, inter alia, to convict not only

Badur (A3) but also A4 i.e. Dinesh.

12 apeal-380-18final.odt

23. Though, the appellants were arrested on 02.12.2012, the

TIP was held only on 07.01.2013 i.e. after almost 5 weeks from the

date of arrest. There is no explanation whatsoever brought on record

by the prosecution to explain this time gap. There are several lacunae

in the TIP to which we shall advert to hereinafter. Suffice to note that

in this case, PW1 to PW4 purported to identify the appellants in the

Court during the trial almost 5 years after the date of the incident.

24. Although Mr. Mirza is right in his contention that such

identification in the Court amounts to substantive evidence, the

question is about the weight that can be assigned to such substantive

evidence, in absence of corroboration employing timely and proper TIP.

Besides, in this case, we are concerned with the issue of identification

of the Appellants who were alleged to have formed a part of a mob of

70-80. The identification accepted by the learned sessions Judge is by

the constables, who claimed to have seen the mob from a distance of

50 meters and when the constables were running for their lives with

their backs to such mob. These constables have deposed that the

members of the mob were in green uniforms, in green fields beyond

which were dense green forests. All these crucial aspects deserved

consideration before accepting the identification of the Appellants by

the constables during the trial or whilst in the dock after almost 5

years from the date of the incident.

13 apeal-380-18final.odt

25. The learned Sessions Judge has observed that the

testimony of PW1 to PW4 is almost identical in material particulars.

Even, Mr. Mirza, learned A.P.P. had emphasized that there is

consistency in the testimony of PW1 to PW4. He points out that there

was no contradiction in the version deposed by PW1 to PW4. We have,

with the assistance of the learned counsel read and analyzed the

depositions of PW1 To PW4 in great detail. Their testimonies appear to

be similar in material particulars but the same are not quite identical.

Some additional and even quite relevant and material particulars have

been deposed to by PW2 to PW4 that were missed by the learned

sessions judge based on the premise that the testimonies of PW1 to

PW4 were identical. This is not however to suggest that there were

some inconsistencies in the testimonies of which some advantage could

be claimed by the Appellants. This is only to point out that some

relevant and material evidence in depositions of PW1 to PW4 was

overlooked on the premise that the testimonies of all the constables

were identical.

26. Ajay Bansode (PW1) has deposed that he along with 4

other constables went to the spot on two motorcycles where the

Naxalites had put up posters and banners. One of the motorcycles

carried, along with him, Raju Nandeshwar (PW4) and Santosh Chute

(PW3). The other motor-cycle carried Hasil Bhandarkar (PW2) and

14 apeal-380-18final.odt

Manoj Binzade (deceased). He deposed that after they removed the

posters and banners and were returning to A.O.P. Ganutola, Police

Station Chichgrah when they reached Nalla they saw about 70/80

Naxalites coming towards them from the opposite direction. He

deposed that the mob was armed and was shouting. He deposed that

they started firing on them. He deposed that they stopped their

motorcycles and left them there and ran to save their lives. He

deposed that one bullet hit Manoj Binzade (deceased) on his thigh and

he fell. He deposed that some Naxalites chased him. On 21.10. 2016,

in the course of his deposition, PW1 even identified Fagnu Kallo (A1),

who was present in the Court-dock.

27. Ajay Bansod (PW1) was recalled and re-examined on

09.12.2016. This time he identified A2-Prakash and the Appellants

who were present in the Court- dock. He stated that the Appellants

are the same persons whom he had identified at the TIP. In his cross-

examination, PW1 admitted that his first statement was recorded on

01.12.2011 and a supplementary statement was recorded on

24.04.2012. He admitted that he did not tell the Investigating Officer

(I.O.) while recording the aforesaid statements that the Appellants

were the Naxalites and that they ran towards him and fired on him.

The depositions of the Hasil Bhandarkar (PW2), Santosh Chute (PW3),

and Raju Nandeshwar (PW4) are more detailed than PW1.

15 apeal-380-18final.odt

28. PW2 has also deposed that when he along with other

police constables reached near Nalla, they were confronted by 70/80

Naxalites shouting slogans, hurling abuses, and firing at them. He

deposed to their reaction when the firing started in the following

words:-

"To protect our life, we started running, by leaving our bike there. P. C. Bansod ran towards field, I, P.C. Chute and Nandeshwar ran towards one side and P. C. Binzade went towards another side."

29. PW2 in his cross-examination admitted that he did not tell

the I.O. while recording his statement the age, height, and complexion

of the accused persons whom he had seen. He admitted that he saw

the mob of Naxalites from a distance of 50 meters. He admitted that

the moment the Naxalites saw them, they started abusing them, they

raised slogans and fired upon them. PW2 has then deposed that they

started running towards the opposite side. PW2 has also deposed that

this incident took place in the green field beyond which there were

dense forests. He admitted that all the Naxalites were in " green dress".

He admitted that he never told the I.O. that he can identify any of the

accused persons. He admitted that the I.O. had told him that he had

arrested the accused persons and even the name of the accused

persons were told to him by the police. He admitted that he had never

seen the assailants before the incident.

16 apeal-380-18final.odt

30. PW3 also deposed that he stopped his motorcycle almost

50 meters away from the mob of about 30/40 Naxalites, who started

abusing them and even opened fire. He also deposed that he along

with other police constables he left the motorcycle at the spot and

started running away. In his cross-examination, he admitted that he

had seen the assailants at a distance of about 50 meters; that the

assailants were in "green dress" and that on both sides of the spot of

the incident, there were fields and beyond them, there were dense

forests. He admitted that the moment he saw the assailants firing at

them, they started running in the opposite direction.

31. Raju Nandeshwar (PW4) has also deposed that the

moment they saw 60/70 Naxalites in green uniform from a distance of

about 50 meters, they left their motorcycles on the spot and started

running towards the opposite side. He deposed that the Naxalites

were chasing and firing at them. He deposed that the motor-cycle

carrying Bhandarkar (PW2) and Binzade (deceased) was also coming

along with their motor-cycle and when they saw them running, even

Bhandarkar(PW2) and Binzade (deceased) left their motor-cycle at the

spot and started running along with them.

32. Even PW4 admitted that he had not described the height

and complexion of any of the Naxalites. He admitted that he had seen

17 apeal-380-18final.odt

them from a distance of 50 meters. He admitted that the

Naxalites/assailants were in a green uniform and were all standing in

the field beyond which were dense forests. He admitted that the

moment they saw the Naxalites at a distance of 50 meters, they

stopped their motorcycle and started running in the opposite direction.

He admitted that he had never told the I.O. that he can identify the

assailants. Significantly, he even admitted that since he had seen the

Naxalites from a distance of 50 meters, he could not describe the

assailants in his statement recorded on 02.12.2011. He admitted that

from 02.12.2011 to 24.04.2012, he never went to the I.O. stating that

he can identify the assailants.

33. Therefore, from the testimonies of PW1 to PW4, it is quite

clear that these police constables noticed a mob of about 60/70

assailants/Naxalites, standing almost 50 meters away from the spot

where these police constables left their motorcycles and started

running in the opposite direction. This is because this mob of 60/70

assailants/Naxalites started hurling abuses and even opened fire on

them. These witnesses have consistently deposed that they ran for

their lives in the direction opposite to that of the mob of 60/70

assailants/Naxalites, who were firing upon them. These witnesses

admitted that none of them described or were in a position to describe

any of the assailants/Naxalites. PW4 in terms admitted that this was

18 apeal-380-18final.odt

because the assailants were at a distance of almost 50 meters away

from them. All these police constables also admitted that the

assailants/Naxalites were wearing a green uniform and were standing

in green fields beyond which there were dense green forests.

34. The identification of A2-Prakash, A3-Budru, and A4-

Dinesh by PW1 to PW4 in the Court almost 5 years after the incident

will have to be therefore evaluated in the context of aforesaid

circumstances deposed to by PW1 to PW4 themselves. This is more so

because there was no TIP regards A2-Prakash and the TIP which was

held almost a year after the incident and five weeks after the arrest of

the Appellants also left a lot to be desired. Having regard to the

circumstances deposed to by PW1 to PW4 themselves as listed in the

above paragraph, the identification in the Court inspires no confidence

particularly since the same was not corroborated by TIP that inspired

some confidence. With respect, we think that the learned Sessions

Judge erred in relying on the identification of the appellants by PW1 to

PW4 in the Court-dock five years after the incident by disregarding

almost entirely the above crucial circumstances emanating from the

deposition of PW1 to PW4 themselves.

35. On the evaluation and analysis of the depositions of PW1

to PW4, we feel that these witnesses though at the spot, could not

19 apeal-380-18final.odt

have identified the Appellants from out of a mob of 70/80 assailants,

all of whom wearing a green uniform and were standing in green fields

beyond which there were dense forests, particularly, when PW1 to

PW4 claimed to have witnessed the assailants from a distance of over

50 meters or thereabouts. PW4 as noted earlier admitted that he was

not even in a position to describe any of the assailants in his

statements given to the Police because they were at a distance of over

50 meters from the spot. Besides PW1 to PW4 have deposed that when

they saw the belligerent mob at a distance of about 50 meters, they

simply left their motorcycles at the spot and fled for their lives in the

opposite direction since they were being abused and fired upon by the

mob. Based on a fleeting glance, if at all, the identification after a year

or five years can hardly inspire confidence or be held sufficient to

sustain a conviction for a capital offense. This crucial evidence has

been overlooked by the learned Sessions Judge and this, according to

us, renders the identification of the Appellants by PW1 to PW4 quite

unsafe to sustain their conviction.

36. The Appellants, in this case, were at least entitled to a

benefit of reasonable doubt similar to the one extended to A2-Prakash,

despite PW1 to PW4 having identified A-2 in the course of the trial.

This benefit was extended to A2-Prakash because, admittedly, in the

case of A2-Prakash the prosecution failed to even hold TIP. This benefit

20 apeal-380-18final.odt

was denied to the Appellants because in the case of the Appellants the

Prosecution held a TIP. According to us, however, even this TIP left a

lot to be desired and therefore offered no corroboration whatsoever to

the un-inspiring identification of the Appellants by PW1 to PW4 in

Court-dock almost 5 years after the incident.

37. Now, the TIP concerning the Appellants was held on

07.01.2013. There is a dispute as to whether this parade was held in

the building of the S.D.P.O. or the building of S.D.M. Deori. The

evidence is not quite clear but, there is no dispute that TIP in the

present case was not held in the jail premises where it was normally

required to be held, as admitted by Rajiv Yamavar, Naib Tahsildar

(PW12), who conducted the TIP.

38. PW12 deposed that he was informed that two accused

persons had to be identified at the parade to be held on 07.01.2013.

He deposed that to identify the two accused persons, a total of 14

persons of the same age, size, and complexion were arranged by the

I.O. He deposed that there was only one row of 14 persons and before

arranging this row, he asked the accused persons whether they want to

change their clothes or say anything.

39. PW12 has then deposed that firstly 12 dummies were

called and the identifying witnesses were asked to identify the accused

21 apeal-380-18final.odt

persons from amongst them. He deposed that thereupon the

identifying witnesses did not identify anybody. PW12 admitted that

this crucial aspect was not recorded in the TIP memorandum. PW12

further deposed that he then asked the identifying witnesses to go

back. After they went back, PW12 deposed that he called Appellant to

join the 12 dummies. He deposed that the Appellants stood in the

row with the dummies as per their choice. Thereafter, PW12 again

called in the identifying witnesses who then identified the Appellants.

This part was recorded in the memorandum of TIP and the same was

accepted in the evidence.

40. Apart from several breaches of the guidelines prescribed

for holding of TIPs, we fail to understand why PW12 first called in the

12 dummies and asked the identifying witnesses to identify the

accused person from out of these 12 dummies. After the identifying

witness allegedly failed to identify any of the dummies as the accused

persons, PW12 sent out the identifying witness and called in two

accused persons, and required them to join in the row along with the

very same 12 dummies. This means that PW12 virtually facilitated the

identification of two accused persons since in the earlier round, 12

dummies had been eliminated by the identifying witnesses. This was a

rather unusual procedure adopted by PW12 in the matter of TIP that

impacted the integrity of the process in the facts of the present case.

22 apeal-380-18final.odt

41. PW12 in his cross-examination admitted that he had not

noted down the complexions, age, height, and weight of the dummies

in the memorandum of the TIP. PW12 admitted that both the accused

persons are different in age, height, and health and yet he held a

common TIP and prepared a common TIP report (memorandum) in

respect of both the accused persons. PW12 admitted that there was a

main door in front of the place where identifying witnesses were

standing. He admitted that he did not make panchnama or

memorandum when the identifying witnesses were firstly asked to

identify the accused persons from amongst 12 dummies and they did

not identify them. PW12 admitted being aware of the guidelines for

the conduct of TIP. PW12 admitted that he had conducted only 3/4

TIP before the present TIP. This means that the infirmities in the

holding of TIP were brought to the notice of PW12 and he was allowed

to explain.

42. The Criminal Manual provides guidelines for holding TIPs.

Clause (h) under Chapter I provides that suspect should be placed

among persons (if practicable eight or more) who are as far as possible

of the same age, height, general appearance (including standard of

dress and grooming), and position in life. Two suspects of roughly

similar appearances should be paraded with at least twelve other

persons. Where, however, the two suspects are not similar in

23 apeal-380-18final.odt

appearances or where there are more than two suspects, separate

parades should be held using different persons on each parade.

43. Similarly, Clause (i) provides that all members of a group

of suspects more than two should not be paraded together. There

should be more parades than one, each including not more than two.

Two suspects of obviously dissimilar appearance should not be

included in the same parade. The identification numbers should be

concealed.

44. From the testimony of PW12, it is evident that the two

Appellants i.e. A3 and A4 were dissimilar in their appearances, and yet

a common parade was held. The guidelines very clearly provide that if

a witness is unable to identify or there is misidentification then this

should be reflected in the memorandum of TIP. In this case, there is no

explanation as to why there was no reference to the curious procedure

admittedly followed by PW12 of first parading the 12 dummies

without two accused persons before the identifying witnesses and

noting that identifying witnesses had failed to identify any person from

amongst the dummies as the accused persons. There is no recording

about how identifying witnesses were sent out and the two accused

persons were then included in the row along with 12 dummies. This

process, according to us, facilitated the identifying witnesses to

24 apeal-380-18final.odt

identify the Appellants because, hardly a few minutes earlier, they had

an opportunity to eliminate the 12 dummies. In any case, all this had

to be at least properly recorded in the memorandum but, even the

same was not done.

45. Mr. Mirza is right in his submission that guidelines

contained in the Criminal Manual are only administrative and mere

non-compliance with the guidelines will not invariably vitiate the TIP.

However, these guidelines have been made to ensure that

identification parades are held fairly and in conformity with judicial

requirements. The guidelines have been made as a measure of fairness

in the investigation process. These guidelines provide that

identification parades should be fair and seem to be fair and therefore

every precaution must be taken to exclude any suspicion of unfairness

or risk of any erroneous identification through the witnesses' attention

being directed especially to the suspected person instead of equally to

all the persons to be paraded. [See: Guideline (b) Chapter I of

Criminal Manual].

46. Therefore, while the guidelines may not be binding as

such, they are not required to be ordinarily ignored. Rather, normally

the process should, by and far be guided by such guidelines unless

there is some good reason for substantially deviating from the same.

25 apeal-380-18final.odt

This is because, even if we ignore breaches of the guidelines, there is

no explanation as to why there was no true and faithful recording of

the process in the memorandum of TIP. There is no explanation as to

why some curious procedure, first requiring the identifying witnesses

to identify the accused persons from amongst 12 dummies was

followed and this was soon followed up by including two accused

persons along with the very same 12 dummies. Mr. Lingayat submitted

that this, to a great extent, amounted to directing the witnesses'

attention to the two accused persons, who were incidentally the only

two additional faces apart from 12 dummies, whom the identifying

witnesses had already eliminated a few minutes ago. Having regard to

all such factors, it would be unsafe to rely upon such a TIP to

corroborate the identification of the accused persons by PW1 to PW4

in the dock during the trial, particularly, since even the said

identification in the dock was itself not found to be quite credible or

safe to be relied upon.

47. Mr. Lingayat pointed out that in this case there is no

explanation whatsoever, for the delay in holding the TIP. The parade

was held almost 5 weeks after the appellants were apprehended or

arrested. This circumstance, by itself, may not amount to much.

However, if this circumstance is considered along with other

circumstances referred to above, then, same, assumes some

26 apeal-380-18final.odt

significance. Even independent of this circumstance, the TIP, in this

case, inspires not much confidence and offers not much corroboration

to the equally uninspiring identification of the Appellants in the Dock

almost 5 years after the incident.

48. In Subhas & Shiv Shankar Vs. State of U. P (supra) , the

accused persons or their names were not known to the identifying

witness. The names of the accused persons did not find a place in the

FIR. The TIP was not held promptly but, the parade was held after 3

weeks from their arrest. There was no explanation for this delay. The

Hon'ble Supreme Court, in such circumstances, held that there was,

therefore, room for doubt as to whether the delay in holding the TIP

was to enable the identifying witness to see the accused in at least

lockup area or in the jail premises to make a note of his features.

49. Besides, even in the case before the Hon'ble Supreme Court,

a sufficiently long interval of time i.e. almost 4 months had elapsed

between the date of occurrence and the date of TIP. The Hon'ble

Supreme Court also noted that identifying witnesses had not given

descriptive particulars of the accused and based on all these factors,

the Hon'ble Supreme Court held that in the absence of descriptive

particulars or statements of the witness during the investigation to

27 apeal-380-18final.odt

identify the accused person, it would be quite unsafe to act on the TIP

and the benefit of the doubt had to be given to the accused person.

50. In the present case, the TIP took place after almost a year

from the date of the incident for which the Prosecution cannot perhaps

be faulted. But the TIP took place almost 5 weeks after the date of

arrest of the accused. In this case, as well, identifying witnesses chose

not to give any descriptive particulars of the accused persons. One of

the identifying witnesses, in fact, deposed that no such description was

given because they allegedly noticed the assailants from a distance of

almost 50 meters when such assailants were part of a mob of 70/80

persons. There is evidence that members of the mob were all wearing

green uniforms and were in green fields beyond which were dense

green forests. The witnesses claim to have noticed the Appellants

when they were being fired upon and were running for their lives with

their backs to the mob. All these relevant circumstances have been

ignored by the learned Sessions Judge and the conviction recorded, is,

therefore, quite vulnerable.

51. In Musheer Khan @ Badshah Khan (supra), the Hon'ble

Supreme Court noted that the identifying witness had an extremely

limited opportunity of seeing the accused person. The Hon'ble

Supreme Court noted from the evidence of one of the identifying

28 apeal-380-18final.odt

witnesses that he had only a fleeting chance of seeing the accused

person when they were obviously in hurry to board the scooter and

escape from the spot and further the identifying witness had not even

known the accused persons before the incident. In such a situation, the

Hon'ble Supreme Court held that it would not be safe to act on either

identification of the accused person in the Court or even in TIP.

Incidentally, even in this case, one of the accused persons was arrested

on 05.12.2000, and the identification parade was conducted on

10.12.2000. Another accused was arrested on 22.12.2000 and the

identification parade was held on 24.01.2001. The date of the

incident was 29.11.2000. Based upon all these factors, the Hon'ble

Supreme Court held that it was unsafe to act on such TIP.

52. Upon cumulative consideration of the aforesaid

circumstance, we believe that it would be unsafe to accept the

identification of the accused persons by PW1 to PW4 during the trial or

for that matter, the identification at the TIP. This is even though we

agree with Mr. Mirza that holding of a TIP is not a rule of law but, rule

of prudence as was held in Sunil Kumar (supra). Normally,

identification of the accused in a TIP lends assurance so that

subsequent identification in the Court during the trial can be safely

relied upon. However, in the absence of TIP, identification in the

Court, can, in a given circumstance be relied upon if the witness is

29 apeal-380-18final.odt

otherwise trustworthy and reliable. In this case, no such credibility be

assigned to the testimony of PW1 to PW4, when it comes to their

identifying the accused persons in the Court-dock almost five years

after the incident and in circumstances adverted to earlier.

53. Incidentally, in Ms. S Vs. Sunil Kumar (supra) , the Hon'ble

Supreme Court was concerned with the testimony of the prosecutrix,

who was subjected to sexual intercourse during the broad daylight. It

is in this context that, the Hon'ble Supreme Court held that by the very

nature of the offense, close proximity with the offender certainly

afforded sufficient time to imprint upon her mind the identity of the

offender. Furthermore, in the case before the Hon'ble Supreme Court,

the prosecutrix had gone to the extent of stating in her first report that

she would be in a position to identify the offender and she even gave

the particulars of his identity in her statement to the police. The

circumstances in the present case, as noted above, are entirely

different, The decision in Ms. S Vs. Sunil Kumar (supra), therefore,

cannot be of assistance to the prosecution.

54. Ajaykumar Sunilkumar Sharma (supra) was a case of

dacoity and the breach complained of was about including almost 20

unidentical dummies in the TIP instead of the normal seven similar

dummies. In this context, the Division Bench of this Court held that

30 apeal-380-18final.odt

such irregularity in the TIP could not be raised in defense, without

even proper cross-examination of the Magistrate, who conducted the

TIP. In the present case, the facts are quite different, and further, as

noted above, the Naib Tahsildar (PW12) was sufficiently cross-

examined. Therefore, even the decision in the case of Ajaykumar

Sunilkumar Sharma (supra) can be of no assistance to the prosecution.

55. Lawrence Dias (supra) was a case where only 4 dummies

were included in the TIP instead of 6 prescribed in the guidelines. It is

in this context the learned Single Judge of this Court held that

guidelines in the Criminal Manual are in the nature of administrative

instructions and mere non-compliance with the required number of

dummies being included in the TIP cannot vitiate the parade or render

it suspicious. The learned Single Judge also noted that the evidence

before him was replete to show that PW1 had sufficient opportunity to

see the accused person and to be with him for a sufficient period to

make the subsequent identification of the accused person trustworthy.

Therefore, even this decision, can be of no assistance for the

prosecution particularly, because the facts of the present case are

entirely different from the facts before the learned Single Judge in the

case of Lawrence Dias (supra).

                                         31                         apeal-380-18final.odt



 56.              In     Ashok Debbarama @ Achak Debbarma (supra) the

Hon'ble Supreme Court has held that non-holding of TIP, itself, is not a

reason to discard the evidence of a witness if otherwise, such witness is

reliable and trustworthy. Identification of the accused person at trial is

substantive evidence whereas identification in TIP, though primary, is

used as only corroborative. Again, in the present case for the reasons

discussed, evidence of PW1 to PW4 on the aspect of identification of

the appellants can not be held to be reliable or credible on the aspect

of identification. This, coupled with serious irregularities in the

holding of TIP renders it quite unsafe to sustain the conviction

recorded against the Appellants. The decision of the Hon'ble Supreme

Court, therefore, can be of no assistance to the prosecution in the

present case. Besides, in the case before the Hon'ble Supreme Court,

there was evidence that many accused persons were known to the

identifying witness.

57. Mr. Mirza is quite right in his submission that evidence of

identification in the TIP is not substantive evidence, but only

corroborative evidence. The TIP falls in the realm of investigation and

its purpose is to test the observation, memory, capacity to recapitulate

what identifying witness has seen earlier, to test the strength or

trustworthiness of the evidence of identification of the accused, and to

ascertain if it can be used as reliable corroborative evidence of the

32 apeal-380-18final.odt

witness identifying the accused at trial in the Court. If a witness

identifies the accused in Court for the first time after a long time then

such corroborative evidence would be safe to rely on. But, if the

witness is known to the accused earlier or the witness had a

sufficiently long opportunity to interact with the accused or have the

imprint of the identification of the accused then this position may be

quite different.

58. In the present case, it is not even the prosecution's version

that PW1 to PW4 ever knew the accused persons earlier. From the

evidence on record, it is difficult to accept Mr. Mirza's contention that

PW1 to PW4 had sufficient opportunity to witness the accused persons

at the spot of the incident. PW1 to PW4 were in a great hurry to flee

from the site and therefore, it is most unlikely that they would identify

the accused persons from out of a mob of 70/80 assailants, all wearing

a green color uniform, standing in green fields, beyond which there

was a dense green forest. PC- Binzade, who unfortunately died in the

firing received bullet injuries on his back. This indicates that he along

with PW1 to PW4 were running away from the spot with their backs to

the mob.

59. Recently, the Hon'ble Supreme Court in the case of Jayan

v. State of Kerela LL, [2021 SC 582] reiterated that TIP is a part of the

33 apeal-380-18final.odt

investigation process and not substantive evidence and the question of

holding a TIP arises when the accused is not known to the witness

earlier. The identification by a witness of the accused in the Court who

has for the first time seen the accused in the incident is a weak piece of

evidence especially when there is a large time gap between the date of

the incident and the date of recording of the evidence. In such a case

the TIP may make the identification of the accused by the witness in

the Court trustworthy. However, the absence of TIP may not be ipso

facto sufficient to discard the testimony of a witness who has identified

the accused in the Court. In some cases, the Court may be impressed

with the testimony of the prosecution witnesses which is of sterling

quality. In such cases, the testimony of such a witness can be believed.

In the present case, however, for reasons discussed earlier, we cannot

say that the evidence of PW1 to Pw4 at least on the aspect of

identification of the Appellants is of sterling quality.

60. In Raja Vs. State [(2020) 15 SCC 562], the Hon'ble

Supreme Court undertook a survey of case law on the subject of TIP.

The Hon'ble Supreme Court concluded that if the material on record

sufficiently indicates that reasons for "gaining and enduring expression

of the identity on the mind and memory of witness" are available on

record, the matter stands in a completely different perspective. In such

a case even non-holding of TIP would not be fatal to the case of the

34 apeal-380-18final.odt

prosecution. Applying such test to the case which was being

considered by the Hon'ble Supreme Court, it was concluded that the

assailants were quite close to the witnesses and each of them suffered

injuries at the hands of such assailants and therefore, the witness had

sufficient time and opportunity to observe the features of the

assailants. The Hon'ble Supreme Court then observed that "it is not as

if the witness has seen the assailants in a mob and over some distance.

Going by the injuries, contact with the accused must have been from a

close distance"

61. Thus, from the aforesaid, it is quite clear that the absence

of a TIP might not affect the identification of the assailants by the

prosecution witnesses directly in the Court where there is material on

the record of the witness gaining an enduring impression of the

identity on their mind and memory. By way of illustration, however,

the Hon'ble Supreme Court itself referred to the case of witnesses who

had seen the assailants in a mob over some distance meaning thereby

that such a case may have to be evaluated from a different perspective.

62. In State of Maharashtra Vs. Syed Umar Suyed Abbas

[(2016) 4 SCC 735], the Hon'ble Supreme Court was evaluating the

evidence of 5 eye-witnesses including the injured witnesses. The

Hon'ble Supreme Court observed that the incident of firing occurred in

35 apeal-380-18final.odt

circumstances wherein much time was not available for the witnesses

to clearly see the accused persons. In such a situation, it was much

more important that TIP was conducted without any delay. The TIP

was conducted almost 1 and ½ months after the incident and this was

held as insufficient to offer corroboration. The Hon'ble Supreme Court

noted that though the incident took place in broad daylight, time for

which eye-witnesses could see the accused persons was not sufficient

for them to observe distinguishing features of the accused, especially,

since there was commotion created after firing and everyone was

running to shelter from firing. Based on such evaluation, the Hon'ble

Supreme Court upheld the benefit of doubt extended by the High

Court to the accused persons.

63. In State of U.P. Vs. Wasif Haider [(2019) 2 SCC 303], the

Hon'ble High Court was concerned about the case where the accused

persons were convicted, inter alia, for the offenses under Sections 302

and 307 read with Section 149 of the Indian Penal Code. These

accused persons were alleged to have been a part of a group of

200/300 rioters. The Hon'ble Supreme Court held that there was an

inordinate delay of 55 days in conducting TIP and for that, no

reasonable explanation was put forth. Further, Hon'ble Supreme Court

noted that out of seven eye-witnesses, who participated in the TIP, five

of them identified the accused persons with 100 percent precision.

36 apeal-380-18final.odt

Based on this, Hon'ble Supreme Court held that such specific

identification from a group of 200/300 rioters, without mentioning

any distinguishing marks seems highly improbable considering the

distance of the witness from the place of occurrence. The Hon'ble

Supreme Court reiterated that suspicion, however grave cannot take

place of proof and that there is a long distance between " may be" and

"must be", which must be traversed by the prosecution to prove its

case beyond a reasonable doubt. Incidentally, this was also a case

where the rioters had fired at the Police personnel resulting death of a

senior police official and injuring others.

64. In absence of any reliable evidence on the aspect of

identification of the appellants, we feel it would be quite unsafe to

sustain conviction recorded against the appellants. Thus, according to

us, this is a case where the appellants are entitled to benefit of

reasonable doubt. The learned Sessions Judge, in this case, has simply

accepted the TIP and the identification by PW1 to PW4 of the

Appellants in the Court during the trial as credible. The circumstances

adverted to by us were not adverted to, much less considered by the

learned Sessions Judge. This according to us, constitutes a serious

error in the evaluation of the evidence on record.

37 apeal-380-18final.odt

65. For the aforesaid reasons, we allow this appeal and set

aside the impugned judgment and order dated 17.05.2018 passed by

Sessions Judge, Gondia in Sessions Trial No. 77/2012 to the extent it

convicts and sentences the appellants herein. The appellants shall now

be released from custody if they are not required in any other case.

66. The Registry is directed to do the needful at the earliest.

                      (PUSHPA V. GANEDIWALA, J.)                    (M. S. SONAK, J.)




RR Jaiswal