Sultania Kanjar vs State of Rajasthan

By The Court

This criminal appeal is directed against judgment dated 30-1-1980 of the Sessions Judge, Jhalawar where by appellant, Sultania has been convicted for the offence u/s 302, IPC, and sentenced to undergo life imprisonment.

Briefly stated the facts of the case are that on 4th April, 1979 at about 8 a.m. an oral report was lodged by Ram Singh to Hari Singh Solanki, Station House Officer of Camp Kali Talai with the assertions that, on the intervening night of 3rd and 4th April; 1979, Narsingh Lal Dangi PW9 informed the villagers that some body has broken into his house; thereupon, the villagers who were reciting sacred songs in the praise of God in the mid-night, went to the house of Narsingh Lal but nobody was found there, so all returned back to their respective house; that, how ever, after a few seconds, Madan. Singh heard hue and cry from northern side of the village and he armed with ''Jeli'' went towards that side duly followed by Bajrang and Moti; and that, they saw some miscreants upon one of them, Madan Singh inflicted a ''Jeli'' blow on the hand, but, at that time other miscreants fired gun which hit Madan Singh thereby Madan Singh sustained injury and died due to that injury. None of the miscreants were caught by the villagers. On the basis of the aforesaid information, a case was registered for the offences Under Sections 302/34, 457/511, IPC, at Police Station Raipur, (Jhalawar) Investigation commenced.

Appellant, Sultania, is said to have been arrested on June 7, 1979 and put to identification parade where in he was identified by three of the witnesses. After completion of the investigation, challan was filed. Learned trial Court framed charges Under Sections 302/34, 447 and 511, IPC against all the accused persons including appellant, Sultania. Accused persons denied the charges and claimed to be tried. 17 witnesses were examined on behalf of the prosecution. Sher Singh DW 1 was examined in defence. After bearing the parties, learned trial Court acquitted two of the co-accused but convicted the present appellant and sentenced as indicated above, acquitting him for the offences u/s 457/511, IPC. Hence this appeal.

Undisputedly, the only evidence against appellant Sultania is of identification parade on the basis of which he has been convicted by the learned trial Court

Learned Counsel for the appellant contended that at the time of the identification parade, none of the witnesses identified the appellant showing any overt act against him and that was the reason that no charge u/s 302, IPC simplicitor was framed against the appellant arid, the charge was framed u/s 302 with the aid of Section 34, IPC. Learned Counsel further submitted that at the time of trial, the witnesses while identifying the appellant in court alleged that he was the person who fifed gun which hit the deceased. On the basis of this testimony, learned trial Court was not justified in convicting the appellant, learned Counsel added.

Learned Counsel for the appellant then urged that the appellant remained in custody long before the, date of his at pest and he was got identified by the witnesses at the Police Station and after that, his wrest was wrongly shown on 7-6-1979. That apart, learned Counsel contended that in the description of the accused''s facial feature, it has been stated that the appellant had small pox marks and these marks were sot observed by the teamed Magistrate who conducted the identification parade, thereby the Magistrate did not take any precautions so as to rule out wrong identification as much as in the identification memo nothing, has been stated about precautions taken for small pox marks.

Learned Public Prosecutor, on the other hand, contended that the appellant has been identified by three eye witnesses of the prosecution side and, therefore learned trial Court was justified in convicting the appellant.

We have beard and considered the rival contention of the parties.

Admittedly, the appellant was not known to the witnesses and was stranger for them. Holding of test identification parade serves two fold object, firstly it is meant to satisfy the Investigating Authority before sending up the case for trial to court that the person arrested, but not previously known to the witnesses, was one of those who committed the crime, and, secondly, it is to satisfy the court that the accused was the real offender.

As said earlier, while filing, the challan, the Investigating Officer was himself not aware of the fact that the appellant was the person who had fired gun and thereby caused injuries on the person Madan Singh and the trial Court while framing the charge was not knowing the fact as to who was the principal assailant and that was the reason that the charge u/s 302/34, IPC was framed but during trial, the prosecution witnesses have made improvements by stating that the appellant fired gun. At the time of identification parade, the witnesses nowhere stated before the Magistrate who conduct the parade, that the person who was to be identified by them fired gun. In the identification memo in Col. 7 of the identification memo, Motilal stated that the accused is not known to him and that he saw the accused at the time when the Maar-Peet took place While stanting the aforesaid facts, the witness, could have also deposed that he has come to identify the person who has fired the gun. Prosecution witnesses, namely, Syama, Bajranga and Devilal also deposed that at the time of the identification, the accused was not known either by name or by face and he was seen by them at the place of occurrence. These trioka also did not assign any specific overt-act against the appellant at the time of identification-parade.

It is settled law that when a person points to and stranger in court that he was the offender and claims him the real assailant, there is no guarantee necessarily of the truth of his assertion and corroborative factors should be looked into to see if the evidence of the witness is reliable, and in order to have some assurance of the truth a test identification is held. The witness at an earlier stage is confronted with the alleged offender not standing alone but mixed up with a number of innocent persons with almost similar age and age and features or suspected persons. Thus, the test identification gives credence, to, the evidence of a witness who has not known the accused from before. Under these circumstances, it is mandatory on the part of the person conducting the identification to take all pre-cautions.

As said earlier, the appellant was having small pox marks as is mentioned in Ex. P. 20. A look at the identification memo shows that the Magistrate who had conducted the identifiation parade failed to notice the marks of small pox which were on the face of the appellant that was the reason that in Col. No. 3 of the identification parade memo, no such marks have been stated. It is thus clear that the learned Magistrate who conducted the identification parade took no pre-caution in respect of marks of small pox which were on the face of the appellant. Test identification parade chart does not show that any person having small pox marks was mixed up with the appellant during the course of holding the identification parade nor does the test identification parade memo shows that any pre-caution for concealing the pox marks was taken. In these circumstances the mistake in identification parade cannot be excluded and the possibility was that in the parade, accused was the only person having marks of small pox on his face and in that situation there was no difficulty for the witnesses identifying the accused-appellant. As pointed out earlier, the learned Magistrate who held the test identification parade nowhere stated that he had taken all pre-cautions to conceal the marks of small pox appearing on the face of the accused appellant by mixing up some other persons, who had some small pox marks on their faces. A look at the identification memo shows that none of the witnesses who bad identified the appellant did at all give any kind of description of the facial features or stature of the accused appellant but clearly establishes that the witnesses identified that the witnesses identified the accused appellant merely because of the small pox marks on the face of the accused-appellant. In this view of the matter, no weight can and should be given to the identification parade and no conviction can be based on this circumstances of the identification. It is correct to say that mere assertion of the accused unsupported by any cogent material that he bad been shown to the witnesses prior to the test identification parade cannot be termed to be of much importance, but it is always open to an accused to bring out facts in cross-examination of the witnesses leading to the inference that they (witnesses) had already an opportunity of seeking the accused and therefore, no reliance should be placed upon their test identification p rade. Therefore it is expected the Police that before the accused is subjected to a test identification parade it will take every pre-caution to see that the witnesses had not already seen the accused.

In the instance, Motilal (PW 3) admitted in cross-examination that Kanjars were taken into custody after 8-10 days of the occurrence. The occurrence has taken place on 3-4-1979. So, according to the statement of Motilal, accused-appellant was under detention on or before 3rd April, 1979, but his arrest is shown on 7-6-1979. So, according to the testimony of Moti Lal it appears that the appellant remained in custody of the Police for about one month and 23 days without showing his arrest. Under these circumstances, there was every possibility for the Police to have shown the appellant to the prosecution witnesses. Obviously, the Investigating Officer was zealous in getting the identification of the accused appellant in parade otherwise be could have shown arrest of the appellant immediately after his detention or custody. In this view of the matter, it can be said that in the instant case, instead of taking any pre-cautions, the Investigating Officer committed mistake in detaining the appellant for long time and the identification parade therefore, becomes doubtful and no reliance should be placed on such tainted indentification.

We have gone through the statement of the witnesses. It is admitted fact that the occurrence took place at about 1 or 2 O''clock in the dead night. That apart, it has also been deposed by the witnesses that there was a cloudy night having no sufficient moon-light and the miscreants were followed by some of the witnesses. In such a situation it is not possible to say that they (witnesses) could have choosen to follow them or had any opportunity to have identified the persons because when they were being followed then in that situation, it was not possible for them to have seen their faces of the assailants and the gun was and might have been fired when the alleged assailants were running and chased by the witnesses. In that state of situation, it was quite impossible for the witnesses to have identified and seen the accused-appellant while being chased. This circumstance is further fortified by this fact apparent on the record when the witnesses at the time of the identification parade did not at all give any specific mark of identification of the accused-appellant though be was having marks of small pox on his face as is given out in Ex. P 20. Non-mention by the witnesses of the identification marks or clue to them, makes identification memo doubtful, and no reliance can be placed on such evidence. In this view of the matter, it would be unsafe to convict the appellant for such a serious offence on the testimony of such type of evidence, as the circumstances narrated above throw some doubt on the complicity of the appellant.

As said earlier, the appellant has been convicted merely on the ground of identification parade which too smacks of doubt as discussed above and upon which no reliance can be placed.

We are fully satisfied that it is a case for interference by this Court against the order of conviction. The appeal is accordingly allowed and the appellant is acquitted of the charges framed and his conviction and sentence awarded by the trial court are set aside. The appellant is on bail he need not surrender. The impugned judgment is quashed and set aside.