State Of Uttarakhand vs Uttam & Others
2023 Latest Caselaw 2051 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
      Government Appeal No. 65 of 2015

State of Uttarakhand                            ... Appellant

                            Versus

Uttam & Others                             ... Respondents

     Mr. J.S. Virk, Deputy Advocate General, for the
     State/appellant.
     None for the respondents.


                                  Date of Judgment : 3.8.2023


                          Judgment

Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

(Per: Hon'ble Manoj Kumar Tiwari, J.)

This appeal is at the instance of State and is directed against the judgment and order dated 12.9.2014, passed by Additional Sessions Judge, Laksar, District Haridwar in Sessions Trial No. 285 of 2007, whereby respondents have been acquitted of the charges punishable under Sections 307 and 393 IPC.

2. Factual matrix of the case is that an FIR was lodged by PW2 Pawan Singh alleging that at about 12.30 o'clock in the intervening night of 6/7.2.2007, some unknown persons came at a liquor shop in village Bhikkampur, where Kashiram and his son Prem Singh used to work as salesman, and they demanded liquor. When Prem Singh refused, then miscreants broke the gate of the shop and

opened fire, which hit the left arm of Kashiram. On raising the alarm, the accused persons fled away. Thereafter Prem Singh telephoned PW2 Pawan Singh and gave him information of the incident. PW2 thereafter lodged the FIR at 2 AM on that very day. It was registered under Section 307 IPC. Subsequently, during the course of investigation, Section 393 IPC was also added.

3. After lodging the FIR, PW1 Kashiram was taken to Community Health Centre at Laksar, where he was medically examined by PW6 Dr. Anil Kumar Verma, who noted the following injuries:

(i) A gunshot exit wound on the left upper arm, 20 cm above the elbow joint, measuring 1.5 cm x 1.5 cm x fresh and exit measuring 2 cm x 1 cm x fresh. X-ray of left shoulder advised.

(ii) Multiple burn abrasions on the left side chest and left side face, measuring 18 cm x 13 cm x fresh and 13 cm x 11 cm over the chest.

4. To bring home the guilt of accused persons, prosecution examined seven witnesses in all. PW1 Kashiram is an injured eyewitness; PW2 Pawan Singh is complainant; PW3 Prem Singh is another eyewitness; PW4 Inspector Dhyan Singh deposed that accused Sadhu, Ashok and Sohan during interrogation confessed the crime and disclosed the name of other accused persons; PW5 Constable Kamlesh Prasad is a formal witness, who prepared the Chick FIR and made necessary

entries in the GD; PW6 Dr. Anil Kumar Verma medically examined the injured (PW1) and prepared the examination report; and PW7 S.I. Pankaj Devrani is the Investigation Officer.

5. In their statements recorded under Section 313 CrPC, accused persons pleaded innocence and false implication.

6. As is evident, the prosecution case depended upon the identification of the accused persons and this identification was founded solely on test identification parade. TIP is not substantive evidence. It is admissible in evidence as corroborative evidence under Section 9 of the Indian Evidence Act. The substantive evidence is identification of the accused in the Court. Therefore, before considering the evidence on TI Parade, it would be appropriate to consider the evidence of PW1 and PW3, who have identified the accused in the Court and prior thereto in the TIP.

7. In his examination-in-chief, PW1 Kashiram states as under:

The incident is of 6.2.2007. Me and my son Prem were present at the liquor shop. We used to work there as salesman. We also used to stay there in the night. On that day, at about 12 o'clock in the night, five persons came. They came and demanded liquor and food. We refused to serve them food and liquor. Then they broke the door. We tried to save ourselves. Then they

shot the bullet, which hit me. These people fled away as soon as the shot was fired. After about four months of this incident, police came and took (us) to the jail, where we had identified four persons, who were involved in the incident. On seeing the accused present in the Court, the witness said that these very five accused were involved in the incident.

8. PW3 Prem Singh, in his examination- in-chief, states as under:

The incident happened at about 12- 12.30 o'clock in the night of 6.2.2007. Me and my father were at the liquor shop in Bhikampur. Five miscreants came there and they asked to bring liquor and food. When we refused, then they broke the door of the shop and hurled abuses. They shot my father. On raising the alarm, these people ran away from there. I informed my contractor Pawan Singh. On seeing the accused present in the Court, the witness said that all five persons, who broke the gate and attacked, are present today in the Court.

9. As regards TIP, PW1 has stated only this much that after about four months of the incident, he identified four accused in the jail. PW3 stated nothing about the TIP. Now, the crucial questions which fall for consideration are;

(i) Whether PW1 and PW3 knew the accused since before?

(ii) Did PW1 and PW3 see the accused at the place and time of occurrence and thereafter prior to TIP?

(iii) Was there unnecessary delay in holding the TIP?

(iv) Whether necessary precautions were taken prior to conducting TIP?

10. Undisputedly, accused/miscreants were not known to PW1 and PW3 (identifiers). Nothing has been stated in the FIR that aforenamed eyewitnesses had seen the assailants at the time and place of occurrence and that they will be able to identify the assailants. Neither the exact number of assailants nor the description of their appearance/physical features/attributes have been disclosed in the FIR. There is no whisper regarding all this in the deposition of PW1 and PW3 as well. Further, PW1 has admitted in his cross-examination that he had seen the accused in the police station and thereafter he identified them in the jail. We have noticed that this witness has also admitted that there was no light at the spot at the time of occurrence and the assailants took advantage of darkness and fled away. In his cross- examination, PW3 has also admitted that S.O. of Laksar Police Station had shown him accused respondents and had supplied their photographs and then on that basis and on the asking of S.O., he identified them. It also appears from the materials on record that the Investigation Officer made no efforts to obtain the exact particulars of real assailants.

11. As regards delay in TIP, alleged incident took place in the intervening night of 6th and 7th February, 2007 and name of accused came in light on 20th April, 2007, yet the TIP could be conducted on 30.5.2007 i.e. almost 110 days after the incident and almost 40 days after the arrest of the accused respondents, as has also been noticed by the Trial Court. This unexplained delay is also fatal to the prosecution case as it renders the whole TIP suspect. As regards taking necessary precautions, there is nothing on record to show that accused respondents were kept baparda. Rather, as stated above, there is specific and categorical admission by the identifiers (PW1 and PW3) that police shown accused persons to them prior to conduct of TIP.

12. In an recent judgment in the case of Gireesan Nair v. State of Kerela, (2023) 1 SCC 180, where accused claimed that they were photographed and videographed before TIP, Hon'ble Supreme Court, in para 48, held that "having considered the evidence of crucial eyewitnesses 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." Thereafter Hon'ble Supreme Court observed, in para 49, as under:

"In view of the above, we are of the opinion that there existed no useful purpose behind conducting the TIP. The TIP was a mere formality, and no value could be attached to it. As the only evidence for convicting the

appellants is the evidence of the eyewitnesses in the TIP, and when the TIP is vitiated, the conviction cannot be upheld. We will now examine the other lapses while conducting the TIPs."

13. In Gireesan Nair case (supra), Hon'ble Supreme Court has relied on its earlier decision rendered in Sk. Umar Ahmed Shaikh v. State of Maharashtra, (1998) 5 SCC 103, where it was held as under:

"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 PW2 and PW11 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."

(emphasis supplied)

14. Given these facts, the unexplained delay to conduct the TIP after the arrest of the accused, coupled with the untrustworthiness of eyewitnesses' deposition, as against the respondents, who by their own admission did not see the accused/assailants even fleetingly at the place and time of occurrence - together undermine the prosecution story about identification of the accused/respondents and their alleged role in the crime.

15. Coming to the other infirmities in the prosecution story, we have noticed that accused respondents were also charged with the allegation of robbery, it is, however, in the evidence that assailants did not enter the liquor shop and they did not loot anything inasmuch as PW1 and PW3 has made categorical admission in their cross- examination that no robbery took place. There is no whisper about robbery or loot in the FIR. Moreover, there is no recovery of anything, be it the weapon used in the crime, pellet from the spot or any other article. All these factors cast doubt on the prosecution version.

16. It appears that respondents were detained in connection with some other case and the police took advantage, in order to resolve this case, and falsely fixed the respondents in the present case, without

taking the trouble of making any effort for tracing the real culprits of the crime.

17. In view of our above discussion of evidence and legal proposition, we are of the firm view that prosecution has miserably failed to prove its case as against the respondents. Consequently, we see no reason to disagree with the view taken by the Trial Court. We do not find any infirmity or illegality in impugned judgment and the same is affirmed. The government appeal thus fails and is dismissed.

18. Personal bonds and sureties, furnished by respondents in compliance of Section 390 CrPC, stand cancelled/discharged. Let LCR be sent back.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

Pr