Madhya Pradesh High Court
Lucky @ Prashant vs The State Of Madhya Pradesh on 5 January, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 8222 of 2022
(LUCKY @ PRASHANT Vs THE STATE OF MADHYA PRADESH)
Dated : 05-01-2023
Shri Manish Datt-Senior Advocate with Shri D.S. Dubey-Advocate for
the appellant.
Shri S.K. Kashyap- Govt. Advocate for the respondent/State.
Heard on I.A.No. 17476/22, which is first application for suspension of
sentence and grant of bail to appellant- Lucky @ Prashant arising out of
Judgment dated 08-09-2022 delivered in Sessions Trial No. 1900017/2014 by
the 7th Additional Sessions Judge, Rewa District- Rewa is taken up.
The appellant has been convicted under Section 307 of IPC and
sentenced to undergo R.I for 14 years with fine of Rs. 1,00/- with default
stipulations.
Learned Senior counsel for the appellant submits that as per the case of
the prosecution, on 08-02-2013 when complaint Pramod Kumar Mishra was
imparting education in his Coaching Center, a person having small beard
approached him and called him out of the class. Since, complainant was
teaching the students, he took sometime to approach the said person. When
complainant Pramod Kumar Mishra approached the said person, the said
unknown person took out a country-made pistol(Katta) and in order to murder
Pramod Kumar Mishra, fired on him and he sustained injury on the left hand
whereas a student Abhishek Dubey, was also injured.
Learned Senior Counsel submits that the main witness/complainant
Pramod kumar Mishra ( wrongly mentioned as Vishwakarma in the impugned
judgment) turned hostile and did not identify the appellant. The statement of
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 06-Jan-23
6:12:54 PM
Abishek Dubey, another injured person is not sufficient to hold the appellant as
guilty for the simple reason that appellant was unknown to him as per his clear
deposition. He identified the appellant in a Test Identification Parade (TIP) but,
before the said parade could be conducted, the appellant was shown to him by
the Police, he clearly admitted it that Sub-Inspector Sharma informed him and
identified the present appellant. Thus, on the strength of a recent judgment of
the Supreme Court in the case of Gireesan Nair and others Vs. State of
Kerla 2022 SCC Online SC 1558, it is submitted that the Test Identification
Parade and his court's statement becomes vulnerable. The Court in the
impugned judgment in (paragraph-36) opined that prosecution could not
establish about the recovery of unauthorised weapon (Katta) from the appellant.
Upon these cumulative reasons,the prosecution case must fail and since the
appellant remained in custody for more than 2 years and 8 months and final
hearing of this appeal is not possible in near future thus, remaining jail sentence
of this appellant may be suspended.
Following paragraphs of Judgment of Hon'ble the Supreme Court in the
case of Gireesan Nair and others (supra) was relied upon:-
"31. 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 a TIP is held
without avoidable and unreasonable delay after the arrest of the accused. This
becomes necessary to eliminate the possibility of the accused being shown to the
witnesses before the test identification parade. This is a very common plea of the
accused, and therefore, the prosecution has to be cautious to ensure that there is no
scope for making such an allegation. If, however, circumstances are beyond control
and there is some delay, it cannot be said to be fatal to the prosecution. But reasons
should be given as to why there was a delay (Mulla and Anr. v. State of U.P .25
and Suresh Chandra Bahri v. State of Bihar26).
32.. In cases where the witnesses have had ample opportunity to see the accused
before the identification parade is held, it may adversely affect the trial. It is the duty
of the prosecution to establish before the court that right from the day of arrest, the
accused was kept
“baparda†to rule
out the possibility of their face being seen while in police custody. If the witnesses had
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Signed by: PARMESHWAR
GOPE
Signing time: 06-Jan-23
6:12:54 PM
the opportunity to see the accused before the TIP, be it in any form, i.e., physically,
through photographs or via media (newspapers, television
etc…), the evidence of the TIP is not admissible as a
valid piece of evidence (Lal Singh and Ors v. State of U.P.27 and Suryamoorthi
and Anr. v. Govindaswamy and Ors.28).
33. If identification in the TIP has taken place after the accused is shown to the
witnesses, then not only is the evidence of TIP inadmissible, even an identification in a
court during trial is meaningless (Shaikh Umar Ahmed Shaikh and Anr. v. State
of Maharashtra 29). Even a TIP conducted in the presence of a police officer is
inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973
(Chunthuram v. State of Chhattisgarh30 and Ramkishan Mithanlal Sharma v.
State of Bombay31).
3 4 . It is significant to maintain a healthy ratio between suspects and
nonÂÂÂÂsuspects during a TIP. If rules to that effect are provided in
Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio
to be maintained, then such rules/guidelines shall be followed. The officer conducting
the TIP 28 (1989) 3 SCC 24 30 (2020) 10 SCC 733 31 (1955) 1 SCR 903 is
under a compelling obligation to mandatorily maintain the prescribed ratio. While
conducting a TIP, it is a sineÂÂÂÂquaÂÂÂÂnon that
the nonÂÂÂÂsuspects should be of the same
ageÂÂÂÂgroup and should also have similar physical features (size,
weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The
concerned officer overseeing the TIP should also record such physical features before
commencing the TIP proceeding. This gives credibility to the TIP and ensures that the
TIP is not just an empty formality (Rajesh Govind Jagesha v. State of
Maharashtra32 and Ravi v. State33).
35. It is for the prosecution to prove that a TIP was conducted in a fair manner and
that all necessary measures and precautions were taken before conducting the TIP.
Thus, the burden is not on the defence. Instead, it is on the prosecution (Rajesh
Govind Jagesha v. State of Maharashtra34).
36. We will now consider the three major contentions raised by the Appellants before
us, being (i) the credibility of the eye witnesses who participated
in the TIP to identify the accused; (ii) delay in conducting the TIP; and (iii) legality of
the TIP and the 32 (1999) 8 SCC 428 presence of the IO during the conduct of the
TIP. We will now consider each of these submissions.
46. This Court in Budhsen and Anr. v. State of UP35 , had directed that sufficient
precautions have to be taken to ensure that the witnesses who are to participate in the
TIP do not have an opportunity to see the accused before the TIP is conducted. In
Lal Singh v. State of U.P.36, this Court had held that a trial would be adversely
affected when the witnesses have had ample opportunity to see the accused before
the identification parade is held. It was held that the prosecution should take
precautions and establish before the court that right from the day of his arrest, the
accused was kept
“baparda†to rule
out the possibility of his face being seen while in police custody. Later, in Lalli v.
State of Rajasthan37 and Maya Kaur Baldevsingh Sardar and Anr. v. State
of Maharashtra38, this Court has categorically held that where the accused has
been shown to the witness or even his photograph has been shown by the
investigating officer prior to a TIP, holding an identification parade in such facts and
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circumstances remains inconsequential. Another crucial decision was rendered by this
Signed by: PARMESHWAR
GOPE
Signing time: 06-Jan-23
6:12:54 PM
Court in Shaikh Umar Ahmed Shaikh and Anr. v. State of Maharashtra 39,
where it was held: 35 (1970) 2 SCC 128 38 (2007) 12 SCC 654
€"8¦. But, the question arises: what value could be
attached to the evidence of identity of accused by the witnesses in the Court
when the accused were possibly shown to the witnesses before the
identification parade in the police station. The Designated Court has already
recorded a finding that there was strong possibility that the suspects were
shown to the witnesses. Under such circumstances, when the accused were
already shown to the witnesses, their identification in the Court by the
witnesses was meaningless. The statement of witnesses in the Court identifying
the accused in the Court lost all its value and could not be made the basis for
recording conviction against the accused. The reliance of evidence of
identification of the accused in the Court by PW 2 and PW 11 by the
Designated Court, was an erroneous way of dealing with the evidence of
identification of the accused in the Court by the two eyewitnesses and had
caused failure of justice. Since conviction of the appellants have been recorded
by the Designated Court on wholly unreliable evidence, the same deserves to
be set aside."€ÂÂÂ
49.. Having considered the evidence of crucial eyeÂÂÂÂwitnesses
and the material indicating the conduct of the TIP, we are of the opinion that the
witnesses had the opportunity of seeing the accused before the conduct of the TIP.
Not only have the witnesses deposed that they had seen the suspects before the TIP,
even Accused No. 2, at the end of the 1 st TIP, had raised a grievance that the
suspects were all photographed, videoÂÂÂÂgraphed and were shown
to the witnesses from the cabin of the IO (PW 84). At the end of the 2 nd TIP, he
had also stated that when Accused Nos. 1ÂÂÂÂ19 were taken to
court for the purpose of remand, and the presence of all the witnesses was arranged
in the court by the police. In fact, all the Accused collectively stated that they were
wearing the very same dress, straight from their arrest, till the date of the TIP to
indicate that the TIP did not serve its purpose. We find no reason to disbelieve the
truthfulness of the statement of the Accused because they had raised this contention
right from the beginning and have maintained it all along."
Sounding a contra note, Shri S.K.Kashyap, learned Government
Advocate opposed the prayer on the basis of objection.
We have heard both the parties at length and perused the record.
Considering the aforesaid factual backdrop, in our opinion the case is
made out for suspension of sentence and accordingly, without expressing any
conclusive opinion on merits, we deem it proper to suspend the remaining jail
sentence of this appellant. Accordingly, I.A.No. 17476/22 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of the appellant- [email protected] Prashant is hereby
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Signed by: PARMESHWAR
GOPE
Signing time: 06-Jan-23
6:12:54 PM
suspended and it is directed that on furnishing personal bond for a sum of
Rs.30,000/- (Rupees thirty Thousand Only) with one surety in the like
amount to the satisfaction of the trial Court by the appellant, he be released on
bail with a further direction to remain present before the concerned Trial Court
- Rewa on 17th April, 2023 and on such other dates as may be fixed by the
trial court in this regard during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
PG
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 06-Jan-23
6:12:54 PM
