Seven Netam And Anr. vs State Of Chhattisgarh

Conviction,Sentence

Under Section 395 of the Indian Penal Code (for

short 'the IPC')","Rigorous imprisonment for 14 years with fine of Rs.

1000/- and in default of payment of fine amount,

additional simple imprisonment for one month each.

Om Narayan Tiwari (PW-8) is an employee of the Office of Collector and District Magistrate, Kanker and has identified the signature of one Shri",

N. K. Khakha, District Magistrate, Kanker, who passed an order dated 26/08/2011 (Ex. P-31) sanctioning the permission for initiating the proceedings",

against the accused persons under the Arms Act, 1959. B. S. Netam (PW-10) and Sushri Sumit Pandey (PW-11) are Naib Tahsildars, who have",

carried out the alleged Test Identification Parades of the accused persons vide Exs. P-3 to P-5. Bapi Chakravorty (PW-14) is a formal witness.,

A close scrutiny of the aforesaid evidence would show that the accused persons while committing the alleged offence had covered their faces,

with handkerchiefs and are alleged to have been identified by the complainant Tarun Samaddar's mother Smt. Suniti Rani (PW-13) and his wife Smt.,

Reeta Samaddar (PW-2). However, from bare perusal of their evidence regarding the Test Identification Parades (Exs. P-3 to P-5), it is difficult to",

accept the same as it was conducted not only in presence of the police officers, but the wife of the complainant, Smt. Reeta Samaddar has",

categorically admitted at Paragraph-7 of her cross-examination that their faces were not visible properly. In such circumstances, it can not be held",

that the appellants have duly been identified by the mother and wife of the complainant.,

It is the settled principles of law regarding the Test Identification Parade that it is not a substantive piece of evidence and such tests are meant for,

the purpose of helping the investigating agency in order to ensure that their progress with the investigation into the offence is proceeding on right,

directions. The Test Identification Parade is not a substantive evidence but it can only be used in corroboration of the statements in Court as held in,

the matter of Musheer Khan Alias Badshah Khan and Another v. State of Madhya Pradesh reported in (2010) 2 SCC 748, wherein the Hon’ble",

Supreme Court has observed at paragraphs-24, 25 & 26 as under:-",

 “24. It may be pointed out that identification test is not substantive evidence. Such tests are meant for the purpose of helping the investigating,

agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. (See Matru v. State of U.P., - 1971(2)",

SCC 75 at p. 83, para 17.)",

It is also held by this Court that identification test parade is not substantive evidence but it can only be used in corroboration of the statements in,

court. (See Santokh Singh v. Izhar Hussain, - (1973) 2 SCC 406 at p. 412, para 11.)",

Recently in Amitsingh Bhikamsingh Thakur v. State of Maharashtra - (2007) 2 SCC 310, this Court held on a consideration of various cases on the",

subject that the identification proceedings are in the nature of tests and there is no procedure either in Cr. P.C., 1973 or in the Evidence Act,1872 for",

holding such tests. The main object of holding such tests during investigation is to check the memory of witnesses based upon first impression and to,

enable the prosecution to decide whether these witnesses could be cited as eye witnesses of the crime. It has also been held that the evidence of the,

identification of the accused for the first time is inherently weak in character and the Court has held that the evidence in test identification parade does,

not constitute substantive evidence and these parades are governed by Section 162 of the Code of Criminal Procedure and the weight to be attached,

to such identification is a matter for the courts.â€​,

Reverting back to the case in hand, where it emerges from the evidence available on record that the Test Identification Parades are the only",

circumstantial evidence in order to hold the appellants' guilt in connection with the framed offence punishable under Section 395 IPC. However, the",

said Identification Parades, as observed herein above, cannot be held to be sustainable in the eye of law and, based upon the aforesaid principles, no",

reliance could be placed upon the alleged Test Identification Parades conducted vide Exs. P-3 to P-5. We are, therefore, of the opinion that the",

conviction can not be held to be sustainable on the basis of the said Identification Parades, as held by the trial Court.",

Consequently, the findings of the trial Court convicting the appellants solely on the basis of the Test Identification Parade cannot be held to be",

sustainable and the findings so recorded deserve to be and are hereby set aside. Accordingly, the appeals are allowed and the conviction of the",

appellants under Section 395 IPC and sentence awarded thereunder vide judgment impugned dated 28/11/2013 passed by the learned Sessions Judge,",

North Bastar Kanker (C.G.) in Sessions Trial No. 131/2011 is set aside. The appellants are hereby acquitted of the aforesaid charges. They shall be,

set at liberty forthwith, if not required in any other case.",