State of Maharashtra V/S Syed Umar Sayed Abbas & Ors

Test Identification parade must be conducted within reasonable time span from the commission of crime

Case name:State Of Maharashtra V/S Syed Umar Sayed Abbas & Ors.
Citation:Criminal Appeal Nos. 345-346 Of 2012
Court:Supreme Court of India Criminal Appellate Jurisdiction
Bench:Hon’ble Justice Pinaki Chandra Ghose Hon’ble Justice R. K Agrawal
Decided on:February 12, 2016
Relevant Act/Sections:Sections 302, 307, 120B read with Section 34 of the Indian Penal Code, 1860; Sections 25, 27, and 29 of the Arms Act  

BRIEF FACTS AND PROCEDURAL HISTORY:

  1. The deceased was shot dead by two unknown assailants on 12.8.1995, at about 3.00 P.M in Ganesh festival pandal. PW-6 was also injured in the shooting. Allegedly, the said two assailants were escorted by three other persons. The deceased Rajendra Rajaram Gupta was taken to Hinduja Hospital immediately, where he was declared dead on arrival. The FIR came to be immediately lodged at 4:15 P.M. by one eyewitness Rajesh Tanaji Akre (PW-5), who happened to have seen the incident from the first floor gallery of his residential building which was abutting to the said Pandal.
  2. After investigation, charges were framed against 13 accused persons (Accused Nos.1 to 13) under Sections 302, 307, 120B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Sections 25, 27, and 29 of the Arms Act, 1959. Accused Nos.2, 5, 6, 8, 10 and 13 had either died or were absconding during the trial. Hence, the trial proceeded against the remaining accused i.e. Accused Nos.1, 3, 4, 7, 9, 11 and 12.
  3. The Trial Court by its judgment and order dated 23.07.2003 convicted Accused Nos.1, 3, 4, 9 and 12 for offences punishable under Sections 302 and 307 read with Section 120-B of the IPC. Accused Nos.1, 3, 4 and 12 were also convicted for the offence punishable under Section 27 of the Arms Act, whereas Accused No.9 was also convicted for the offence punishable under Section 25 of the Arms Act. Original Accused Nos.7 and 11 were acquitted of all the charges. The High Court vide the impugned judgment acquitted all the accused of all the charges by overturning the judgment of the Trial Court.
  4. The State of Maharashtra has filed these appeals against the acquittal of Accused Nos.1, 3, 4, 9 and 12.

ISSUE BEFORE THE COURT:

Whether the testimonies of witnesses could be relied upon?

RATIO OF THE COURT:

  1. Learned Additional Government Advocate appearing for the State of Maharashtra has inter alia reiterated that the judgment of the Trial Court is well reasoned and well considered. The learned counsel for the respondents have rebutted the submissions of the appellant by relying upon the judgment of the High Court pressing that it had gone deeper into the case that the prosecution could not bring home the charges levelled against the accused.
  2. The court found several discrepancies regarding the testimony of PW1. He stated that in the Test Identification Parade held on 30.8.1995, at Arthur Road Prison, he had identified four persons out of 10-12 persons standing in the row. According to the prosecution, the Test Identification Parade was conducted by PW21 (Special Executive Officer) on 30.9.1995. Even if it is presumed that the date was stated to be incorrect by mistake, the fact remains that PW21 deposed that he conducted 2 Test Identification Parades on that day.
  3. In the first Parade, he placed A1 and one more accused who died later and in the second, he placed A3 and A4 for identification. At no point of time, 4 accused were put together for identification for PW1 to identify out of the whole group. This contradiction showed that it was not clear as to whether he rightly identified the accused.
  4. Also, he stated that in another parade held after almost a year, he identified A12. The parade was conducted by PW18 (another Special Executive Officer). A12 was arrested by the first week of September, 1996 and thus the Test Identification Parade was conducted on 4.10.1996, but it was too large a gap for PW1 to have remembered his face. His statement regarding the forehead injury was also found false.
  5. PW5 also deposed that he had identified A1 and A12 in the Test Identification Parades conducted by PW21 and PW18, respectively. But it was not clear whether he could have witnessed the incident from the first floor as the setting up of the Pandal was completed and the work of putting tarpaulin over the Pandal was done and only the decoration of the frill was going on. He had also deposed before the Court that he does not remember the physical appearance of both the suspects seen by him on the date of incident.
  6. The court placed reliance upon Siddanki Ram Reddy v. State of Andhra Pradesh, [(2010) 7 SCC 697] it was held: “When an attack is made on the injured/deceased by a mob in a crowded place and the eyewitnesses had little time to see the accused, the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case.”
  7. The court observed that the test identification parade must be held as soon as possible after the crime which was not the case in present case. Therefore, it was highly doubtful if the witnesses would remember the distinguished features of the accused persons after such a long time. Therefore, in court’s view the testimonies could not be relied upon since there were many contradictions in them.

DECISION HELD BY THE COURT:

  1. The court held that the Test Identification Parade was not conducted properly and was delayed. The High Court was, therefore, correct in giving the benefit of doubt to the accused as their identity had not been clearly established by the prosecution.
  2. In the light of the above discussion, the court found no grounds to interfere with the judgment passed by the High Court. The appeals were, accordingly, dismissed.

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