Crl.A./113/2018 of BAGRA TAKU Vs THE STATE OF ARUNACHAL PRADESH on 20 December 2019

Arguments

GAHC010036632018

THE GAUHATI HIGH COURT(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A. 65/2018

1:RAMESH TAKU R/O VILL. TATATARA, P.O. AND P.S. SEPPA, DIST. EAST KAMENG, ARUNACHAL PRADESH.

VERSUS

1:THE STATE OF ARUNACHAL PRADESH AND ANR REPRESENTED BY PP, AP

2:SRI TABOM GAPAK R/O QTR. NO. 37 (T-III) VIVEK VIHAR P.S ITANAGAR DIST. PAPUMPARE ARUNACHAL PRADESH PIN 79111

Advocate for the Petitioner : MR. M BISWAS

Advocate for the Respondent : PP, A P

Linked Case : Crl.A. 113/2018

1:BAGRA TAKU S/O SHRI TARO TAKU R/O VILL. PABUA P.O. AND P.S. SEPPA DIST. EAST KAMENG ARUNACHAL PRADESH.

VERSUS

1:THE STATE OF ARUNACHAL PRADESH REPRESENTED BY THE PP ASSAM.

2:SHRI TABOM GAPAK

S/O LATE TADE GAPAK R/O QUARTER NO. 37 (TYPE-III) P.O. AND P.S. ITANAGAR DIST. PAPUM PARE ARUNACHAL PRADESH PIN 791111

Advocate for the Petitioner : MR. P D NAIR Advocate for the Respondent : PP A P

Linked Case : Crl.A. 81/20181:BANGRAM SANGYU S/O SRI GULY SANGYU R/O VILL. PABUA UNDER SEPPA POLICE STATION IN THE DIST. OF EAST KAMENG ARUNACHAL PRADESH.

VERSUS

1:THE STATE OF ARUNACHAL PRADESH AND ANR

REPRESENTED BY PP. AP

2:SRI TABOM GAPAK

S/O LATE TADE GAPAK PERMANENT R/O DAKPE UNDER DAPORIJO P.S. IN THE DIST. OF UPPER SUBANSIRI ARUNACHAL PRADESH PRESENTLY RESIDING AT VIVEK VIHAR ITANAGAR UNDER ITANAGAR POLICE STATION DIST. PAPUM PARE ARUNACHAL PRADESH PIN 791111

Advocate for the Petitioner : MR. A M BORA

Advocate for the Respondent : PP A P

BEFOREHONOURABLE MR. JUSTICE MIR ALFAZ ALIHONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

Date : 20-12-2019

JUDGMENT & ORDER

M.A. Ali, J

These three appeals, which have arisen from the judgment and order passed by thelearned Sessions Judge, Papumpare, Arunachal Pradesh in Sessions Case No. 220/2013 (UPA)are taken up together for hearing and disposal by this common judgment. By the impugnedjudgment, learned Sessions Judge convicted the appellants under Section 302/326 IPC andsentenced them to imprisonment for life under Section 302 IPC and imprisonment for 10 yearsunder Section 326 IPC. The appellants were also sentenced to pay fine of Rs. 2000/- and Rs.1000/- respectively under Section 302 IPC and Section 326 IPC with default stipulation.

2. An FIR was lodged by Sri Tabom Gapak (PW-3) alleging that on 29.05.2013, at about 2-2.30 AM, some unknown culprits killed his son Bomjen Gapak near Liezi Complex, Itanagar, byinflicting multiple sharp cut injuries. The assailants also inflicted serious injuries to TerkukGapak (PW-1) by sharp weapon. On the basis of the said FIR, police registered Itanagar P.S.Case No. 118/2013 under Section 326/302/34 IPC. The case was initially investigated by Sub-Inspector T.M. Nikam, who visited the place of occurrence, recorded statement of some of thewitnesses, conducted inquest on the body of the deceased, sent the body for postmortemexamination and seized some incriminating articles. Having noticed the slow progress of theinvestigation, the Superintendent of Police handed over the investigation of the case to theInspector of Police, Tabi Bage (PW-25) and the subsequent Investigating Officer sent the CCTV footage collected by the previous Investigating Officer for forensic examination and on thebasis of the FSL report of the CC TV footage, seized a vehicle allegedly used by the accusedpersons, recovered the weapons of the offence and arrested the accused persons.

3. The postmortem examination was conducted by Dr. D. Phinya (PW-21), who found thefollowing injuries.

“i. An incised wound obliquely placed on left parital scalp measuring 4.5X0.8 cm X2 cmfrom midline, 7 cm above left eye brow.

ii. A muscle deep incised wound on the left eye brow, measuring 2x0.7 cm, 5 cm frommidline and 7 cm in front of left ear.

iii. An incised chop wound on the neck obliquely placed, extending from Rt lateral sideof the thyroid cartilage (at the level of C5) up to left side of the neck. On left lateralend 2 cm below left ear and Rt lateral end 1.5 cm from the midline, 4 cm belowmandible 5 cm above right clavide and measuring 14x3.5 cm with involvement ofmuscle thyroid cartilage, left carotid artery, jugular vein and Cs vertebrae.

iv. An obliquely place abrasion on Rt side of the neck and Rt upper chest, which wasextending from Rt. side of thyroid cartilage (C5) to Rt. Lateral uppor chest measuring16x0.3 cm 127 cm above heel.

v. A bone deep incised chop wound on the Rt. Lateral side of thigh with theinvolvement of muscle and bone, measuring 7.5x3 cm 89 cm above heel.

vi. A bone deep incised wound of the left leg extending from interior medial side up tosole, measuring 9x2 cm with the involvement of muscle and 1[st] metatarsal bone.

vii. A bone deep incised wound on the medial region/ankle region placedperpendicularly, measuring 10x3 cm with the involvement of muscle and talus bone.

Vii A bone deep incised chop wound of the left anterior leg extending form lateral calfmuscle to medical calf muscle with the involvement of muscle and tibia/tabula bonesmeasuring 30x5 cm 15 cm above heel, 10 cm below left knee joint.

ix. An abrasion on left interior shoulder, placed perpendicularly measuring 14.03, 13 cmbelow tip of the shoulder and 4.5 above elbow.

x. A lacerated wound of left thumb and fracture of prominel metacarpal bonemeasuring 3x2 cm.”

4. In the opinion of the doctor, the cause of death was due to hemorrhage and shockresulting from chop injuries on the neck and legs by moderately heavy sharp cutting weapon.

Time since death was stated to be 6-12 hours before the postmortem examination.

5. Dr. Hage Sunny (PW-23), who examined the injured witness (PW-1), found lacerationover the flexor aspect of left forearm with laceration of multiple muscles and tendons. Radialartery pulsations were palpable. Loss of flexion movements at the wrist joint was noted. In theopinion of the doctor, the nature of injury was grievous.

6. On completion of the investigation, police submitted charge sheet against sevenaccused persons under Section 326/302/201 IPC R/W 34 IPC. Later on two supplementarycharge sheets were also filed against two of the accused persons and eventually all the sevenaccused persons stood trial.

7. In course of trial, the appellants pleaded not guilty to the charges framed against them.Prosecution examined as many as 26 witnesses. On appreciation of evidence, learned trialcourt convicted the appellants and awarded sentences as indicated above.

8. We have heard learned Sr. Counsel, Mr. A.M. Bora, learned counsel Mr. M. Biswas, Mr.P.D. Nair for the appellants and Mr. N.N.B. Choudhury, learned P.P. for the State of ArunachalPradesh.

9. Learned counsel for the appellants submitted that the Sessions Judge convicted theappellants relying on the evidence of the PW-1, PW-2, PW-4, PW-5, PW-6 & PW-7, whoprojected themselves as eye witnesses. But, none of these eye witnesses had implicated theappellants in their previous statement recorded under Section 161 CrPC, nor the appellantswere implicated in the FIR and all of them implicated the appellants for the first time in court.It was also submitted by the learned defence counsel, that the Test Identification Parade (TIP)purportedly conducted in respect of accused No. 1 was extremely tainted and as such, noconviction could have been based on the oral testimony of the so called eye witnesses, whoidentified the appellant for the first time in court. Further contention raised by the learnedcounsel for the appellants was that though, the learned trial court heavily relied on therecovery of the weapon of offence, the alleged recovery of weapon at the instance of accused was also not proved beyond doubt. Therefore, learned counsel representing the appellantssubmitted with vehemence, that the conviction and sentence of the appellants were not basedany credible or trustworthy evidence and as such not sustainable. To buttress the submission,learned counsel for the appellants placed reliance on the following decisions:

(i) Rabindra Kr. Paul @ Dara Sing Vs. Republic of India (2011) 2SCC 490

(ii) Dana Yadav @ Dahu & Ors. Vs. State of Bihar (2002) 7 SCC295.295.

10. Par contra, learned Public Prosecutor, Mr. N.N.B. Choudhury, supporting the impugnedjudgment of conviction and sentence, contended that identification of the accused before thecourt is a substantive piece of evidence and it cannot be brushed for want of TIP or any defectin the TIP.

11. We have meticulously scrutinized the evidence and materials brought on record andconsidered the submissions made by the learned counsel for both the sides.

12. Learned trial court convicted the appellants primarily relying on the six eye witnesses,as rightly pointed out by the learned counsel for the appellant. Besides, the oral testimony ofthe aforementioned eye witnesses, learned trial court also heavily relied on the recovery ofweapon of offence and the vehicle allegedly used by the assailants. Therefore, at the outset,we deem it apposite to scrutinize the oral testimony of the six eye witnesses, relied by thelearned trial court.

13. PW-1, Tirkuk Gapak stated, that in the intervening night of 26.05.2013 and 27.05.2013,he along with Chopra Mogli (PW-2), Bomjen Gapak (deceased), Bikuk Lamdang (PW-7), TabomGilo (PW-6), Kabom Nima (PW-4), Namchoom Digru (Pw-5) and Debu Dasi were watching IPLmatch in the house of Taku Gapak. At about 2 AM, he left the house of Taku Gopak along withChopra Mugli (PW-2) in order to drop PW-2 at D-Sector. When they reached near EchoArunachal Office, opposite to SBI, they found a group of persons standing near the road.When they reached near them, one of them, namely, Ramesh Taku, suddenly threw a helmet

on them, which hit on his abdomen and he sustained injury. Noticing the accused personsincluding Ramesh Taku approaching towards them, they immediately left the place andreached Heema Hospital for treatment. The hospital was closed as nobody was available at thehospital and therefore, they decided to go to RKM hospital. In the meantime, they alsoinformed their friends by mobile phone regarding the incidence and asked them to join. Whenthey were moving slowly towards RKM Hospital expecting their friends to join them andreached Lezi complex, they found a group of persons obstructing the road and their vehiclewas parked nearby. They asked the PW-1 & PW-2, whether they were the persons, who werepassing through the Eco Arunachal Office and having said so, the accused Ramesh Takuslapped both of them and then they could learn, that they were the persons, who threwhelmet on them. He also stated that accused Bagra Taku gave him a leg blow on his stomachand he fell down on the ground. Then he saw another boy identified as Bharat Sonamapproaching towards him and he threw a stone on him. At that point of time, his brotherBomjen Gapak and his friends reached the spot. When Bomjen charged the appellants as towhy they were beating PW-1 & PW-2, accused Ramesh Taku took out a dao from back side ofthe vehicle and hit Bomjen on his neck. Then, the accused Bagra Taku angrily snatched thedao from Ramesh Taku and hit on the leg of Bomjen Gapak. Thereafter Bangram Sargyusnatched the said dao from Bagra Taku and hit Bomjen on his buttock portion. Seeing theoccurrence, when he started running towards the complex, accused Bangram Sangyu hit himand he received grievous injury on his hand. When they were fleeing from the place ofoccurrence, accused persons also threw stone on them. On reaching IG park, he (PW-1) metPW-2, and called the father of Bomjen Gapak over phone and informed him about the incident.He also stated that his other friends, of arrived the place of occurrence, left the place out offear. According to him, police called him many times to identify the accused persons and somany persons were produced before him, but none of them were involved in the occurrence.Then after a long gap, accused Ramesh Taku was produced before him and instantly withoutany hesitation he identified Ramesh Taku to be the accused, who was involved in theoccurrence. He also identified accused Ramesh Taku, Bangram Sangyu and Bagra Taku in thecourt. During cross examination, he stated, that the night was not dark and light was sufficientto identify the persons. He also stated that he could recognize the accused Ramesh Taku, butdid not know his name. Apparently, this witness did not mention the name of any of theaccused in his statement recorded under Section 161 CrPC, nor disclosed to the PW-3(informant), while informed him about the occurrence, rather, he had given a quite contradictory statement in his examination under Section 161 CrPC, wherein he (PW-1) statedthat it was dark and they were in haste and therefore could not ascertain the exact member ofthe group and their appearance also could not be seen clearly. Thus, the statement of the PW-1 during evidence, that he could recognize Ramesh Taku at the scene of occurrence and therewas sufficient light appears to be self contradictory and mutually destructive and irreconcilablewith his previous statement recorded under Section 161 CrPC.

14. Reliance was placed by the learned trial court heavily on the test identification parade,held in respect of appellant Ramesh Taku. Ext. 5, the TIP memo shows that PW-1 identifiedthe accused Ramesh Taku during the TIP. It is also evident from the TIP report (Ext.5) and theoral testimony of PW-19, the Judicial Magistrate, who conducted the TIP, that the accusedRamesh Taku was paraded with three other tribal persons. Learned counsel for the appellantsMr. M. Biswas contended, referring to the statement of the appellant, Ramesh Taku, recordedunder Section 313 CrPC, that appellant was paraded with non-tribal person and therefore theTIP was vitiated. Refuting the submission of Mr. Biswas, learned Public Prosecutor submitted,that the Judicial Magistrate, who conducted the TIP clearly deposed, that the appellantRamesh Taku was paraded with three tribal persons and the evdeince of the Magistrate (PW-19) was never challenged in cross examination and, as such, there is no reason to disbelievethe Magistrate (PW-19). Be that as it may, from the evidence of PW-1, it appears that he wascalled to the police station on various occasions to identify the assailants and produced manysuspects before him, but he could not recognize any of them. Ultimately, when Ramesh Takuwas produced before him by police, he could immediately identify him. This categoricalstatement of the PW-1 clearly shows, that even before the TIP conducted by PW-19, the PW-1had the opportunity to see the accused Ramesh Taku at the police station. It was the case ofall the witnesses that they could not identify the accused persons by name as they saw themfor the first time and therefore none of the prosecution witnesses mentioned the name of theappellants in their previous statement recorded under Section 161 CrPC or in the FIR lodgedby PW-3 on the basis of information given by PW-1. However, surprisingly, the TIP was held foronly one accused being Ramesh Taku. Neither the other accused persons were subjected toTIP, nor all the witnesses, who claimed to have seen the occurrence were called to participatein the TIP. What is therefore apparent from the materials on record is that a selective TIP washeld only for one accused i.e. Ramesh Taku and only the PW-1, who had the opportunity tosee the accused Ramesh Taku even before the TIP was called to identify the accused.

Therefore, TIP conducted in the present case was absolutely meaningless. The Apex Court inMahabir Vs. State of Delhi reported in (2008) 16 SCC 481, where evidence was that theaccused was brought to the hospital and shown to the prosecution witness, the identificationof the accused in test identification parade was held to be farce and conviction of the accusedunder Section 302 IPC was set aside. Though, the identification of accused in TIP is a valuablecorroborative evidence to the substantive evidence in court, no credibility can be attached tothe TIP held in the present case as the accused was shown to the witnesses before the TIP.

15. PW-2, Chopra Mugli deposed that he left the house along with PW-1 on his motorcycleas pillion for his residence at D-Sector. On the way, a group of persons, who were standingnear the SBI, threw a helmet on them, which hit both himself and PW-1 and they sustainedinjury. Immediately, they moved to Heema Hospital for treatment, which was found closed.Then, they informed their friends about the incident and also asked them to come to RKMHospital, where they were proceeding to. When they were proceeding towards RKM Hospital,they met the same group of persons at Lezi complex, who enquired, whether they were thepersons, who were passing through SBI. When they replied in affirmative, they startedassaulting both of them (PW-1 & PW-2). According to PW-2, the accused Ramesh Taku slappedhim and Bagra Taku gave a leg blow to PW-1. At that point of time, Bomjen (deceased),Tabom Rilo, Kabum Nima, Namchoom Rilo and others reached the spot and charged theaccused persons, as to why they were assaulting PW-1 & PW-2. Suddenly, Ramesh Taku tookout a dao from the backside of a grey colour Chevrolet vehicle and hit Bomjen on his neck.Then the accused Bagra Taku snatched the dao from Ramesh Taku and hit Bomjen on his leg.Seeing the incident, he got shocked. Again Bangram Sangyu took the ‘dao’ from Bagra Takuand hit PW-1. Then he asked the friends to flee from the place of occurrence and informed thePW-3 about the occurrence. He also stated, that he recognized and identified all the accusedpersons standing on the dock, namely Bagra Taku, Bangram Sangyu, Jina Bagang, MangramTajo and Ramesh Taku. He even deposed to have identified the two accused, namely BharatSonam and Tadung Sangyu by name, who were not even present in the court. In the crossexamination, this witness stated that he could recognize all the accused persons during theprocess. He also admitted to have seen the appellants in court, when Tirkup Gapak (PW-1)was examined. According to him, he was present in court, when the deposition of PW-1 wasrecorded. Apparently, deposition of Tirkup Gapak (PW-1) was recorded on 21.02.2014 and PW-2 was examined as witness on 13.05.2014. Admittedly, he did not mention about any of the appellant in his statement recorded under Section 161 CrPC. What therefore, crystallizes fromthe evidence of PW-2 is that PW-2 had the opportunity to be acquainted with the appellantand knowing the name of all the accused persons remaining present in court, before recordinghis deposition. Therefore, it cannot be said that this PW-2 identified the accused persons forthe first time in court, inasmuch as, he had the opportunity to see the appellant in court and toknow their names, by remaining present in court at the time of recording evidence of PW-1.This apart, implicating two of the accused by name, who were not even present in court,further creates the doubt on his testimony as to identification of the appellants in court for thefirst time. Therefore, in the facts and circumstances, when PW-2 did not mention the name ofany of the accused in his statement recorded under Section 161 CrPC nor he stated PW-3about the name of any of the accused, his identification of the accused persons by name afterhaving come to know from the PW-1 while he was deposing in court hardly carries anycredibility.

16. PW-4, PW-5, PW-6 & PW-7 testified that having received the information over phonefrom PW-1 that some unknown persons caused injury to PW-2 by throwing helmet, all of themtogether proceeded to the place of occurrence in two motorbikes. Tabom Rilo and Bomjen(deceased) were on one bike and the rests three i.e. PW-4, PW-5 & PW-7 were in anotherbike. PW-4 stated that when they reached near lazi complex, they noticed, that all theappellants were assaulting his two friends i.e. PW-1 & PW-2. He further stated that TabomRibo and Bomjen (deceased), who were little ahead of them charged the appellants, as to whythey were obstructing the road and assaulting their friends. They also joined Tabom andBomjen, and suddenly, one of the accused, namely Ramesh Taku went to his vehicle and cameback with a dao and hit on the leg of Bomjen. Then Tirkup Gapak tried to resist him and atthat point of time, suddenly, Bangram Sangyu took the dao from Ramesh Taku and hit PW-1on his hand. Having seen the accused persons inflicting injuries to PW-1 and deceasedBomjen, he got scared and had fled away from the spot. He further stated that his otherfriends also had fled away. He informed one Dibu Dasi about the occurrence and again cameto the spot and found Bomjen lying on the ground with injuries on his neck and leg. Thiswitness also admitted to have not stated in his statement recorded under Section 161 CrPC thenames of the accused/appellants. He also admitted that he identified the accused persons onlyafter they were arrested and came to know their names during the proceeding of the case.

17. According to PW-5, when all of them reached the place of occurrence by ridingmotorcycle, they found that PW-1 & PW-2 were beaten by the accused/appellants. When theytried to intervene, suddenly accused Ramesh Taku took out a dao from backside of the vehicleand started attacking them. At first he hit Bomjen on his neck and immediately, accused BagraTaku snatched away the ‘dao’ from Ramesh Taku and hit on the leg of Bomjen. When PW-1tried to save Bomjen, accused Bangram Sangyu hit him with the dao on his hand. Having seenthe occurrence, he got scared and fled away from the place of occurrence. This witness alsostated in cross examination that at the time of occurrence, he did not know the names of theaccused persons, but came to know only after their arrest and during the trial of the case. Thetestimony of this witness is also found to be contradictory on material particulars with hisprevious statement recorded under Section 161 CrPC, inasmuch as, he also admitted to havestated before police, that he could identify only one boy at the time of occurrence, who wasstanding on the motorcycle and was of stout built, long hair with dye. He further stated thathe would be able to identify that boy, if he can see him physically. What is therefore evidentfrom the admission of PW-5 is that he could recognize only one boy, who was standing on themotorcycle. PW-5 did not identify any of the accused as the said tall boy, whom he couldrecognize at the time of occurrence. Therefore, his admitted statement before police, that hecould recognize only one tall boy by face at the time of occurrence and not mentioning thename of any of the accused in his statement recorded under Section 161 CrPC, coupled withhis admission, that he could know all the accused persons during trial clearly demonstratedthat he could not recognize any of the accused at the time of occurrence, except one tall boy.

18. PW-6 stated that when they reached Lazi complex, he saw the accused persons in agroup and he could recognize them by their face. He further stated that he could evenrecognize Ramesh Taku, who was known to him, though he was not present in court on thatday. He further stated that one Mangram Tajo, who was not present in court was also at theplace of occurrence. According to him, on reaching the place of occurrence, Bomjen(deceased) charged the accused persons as to why they were beating PW-1 & PW-2,whereupon, Ramesh Taku suddenly took out a Dao from the vehicle and hit him on hisshoulder with the blunt side of the Dao and thereafter he hit Bomjen on his neck with thesharp side of the Dao. On seeing the attack with Dao, he got nervous and had fled away from the place of occurrence. He further deposed, that after about 15/20 minutes, PW-2 called himover phone and informed that Bomjen Gapak and Tirkup Gapak (PW-1) sustained injuries andasked him to come to Kime-Paka. During cross examination, he stated that he could notidentify as to which accused assaulted Tirkup Gapak and which accused assaulted ChopraMugli. This witness also in his previous statement did not mention the name of any one of theaccused, rather stated that he could not recognize any of the accused persons. He furtherdeposed that he knew the accused Ramesh Taku only from the day of incident and came toknow his name when police had shown him the photograph of Ramesh Taku. What is furtherevident from the testimony of this witness is that Ramesh Taku first hit him (PW-6) with ‘dao’and thereafter hit Bomjen on his neck. But no other witness stated that Ramesh Takuassaulted PW-6 with dao. There was also no evidence that PW-6 sustained any injury.Therefore in view of his statement before police that he could not recognize any of theaccused person at the time of occurrence and his admission that he could recognize and knewthe name of accused Ramesh Taku when he was shown the photograph of Ramesh Taku bypolice, coupled with the inconsistency in his evidence with other eye witnesses, with regard tothe accused Ramesh Taku hitting him and causing injuries raises serious doubt not only on thecredibility of his deposition regarding identification of the appellant in court for the first time,but also regarding his presence at the place of occurrence.

19. PW-7 stated that when he arrived near Lazi complex along with others after receivingtelephone call, he found PW-1 & PW-2 with the accused persons at the place of occurrence.He also deposed that PW-6 Tabong and deceased Bomjen moved towards the accused andasked them as to why they were doing so. At that point of time, Ramesh Taku took out a Daofrom the vehicle and hit Tabom Rilo on his shoulder and then he inflicted injuries to Bomjen onhis neck. He further stated, that accused Bagra Taku took the Dao from Ramesh Taku andassaulted Bomjen on his leg. Having seen the occurrence, he got nervous and had fled awayfrom there. During cross examination, he admitted that on arriving at the place of occurrence,he could not notice properly as to what happen to PW-1 & PW-2. He also stated to have cometo know the name of Ramesh Taku and Bagra Taku after the occurrence. He further stated thathe did not know Ramesh Taku prior to the occurrence and in fact, he did not know any of theaccused persons prior to the occurrence. He also admitted that he did not tell before police thename of any of the accused persons, who assaulted the deceased.

20. A dispassionate scrutiny of the testimony of these six eye witnesses reveals thatimmediately after the occurrence, PW-1 informed PW-3, father of Bomjen Gapak about theoccurrence, where he did not mention about any of the accused. In his previous statementbefore police also, he did not mention the name of the accused persons, rather, he stated thatdue to haste and darkness, he could not see clearly the faces of the accused persons. Thoughhe identified the accused No. 1, Ramesh Taku in the TIP, from his own admission in hisevidence, that he was shown the accused person in the police station before the TIP,demolished the credibility of the TIP. His previous statement before police, that due todarkness and suddenness of the occurrence he could not recognize any one at the time ofoccurrence certainly raises serious doubt on his claim that he would be able to identify theassailants. The evidence of the PW-1 that he was called to police station on many occasions toidentify the suspects but he could not recognize any of them, coupled with the fact of holdingthe selective TIP only for the accused No. 1, and not subjecting the other accused to the TIP,also cast serious doubt on his identification of the appellants in court. Evidently the claims ofthe PW-1 that he could recognize the assailant is contradictory to his previous statementbefore police. All these facts and circumstances, in our considered view, rendered theidentification of the appellants in court for the first time by PW-1 extremely doubtful. PW-2also did not state in his previous statement under Section 161 CrPC the name of any of theaccused persons, and in fact, he also cannot be said to have identified the accused person forthe first time in court, inasmuch as, admittedly he was present in court, when the evidence ofPW-1 was recorded and he had the opportunity to be acquainted with the appellants and toknow their names remaining present in court during examination of PW-1. This apart,implicating two of the accused during evidence by name, who were not even present in courtfurther fortify the fact that the PW-2 had the opportunity to be acquainted with the appellantsbefore deposing in court. Therefore, the so called identification of the appellants in court bythe PW-2 also hardly deserves any credibility. As we have already noticed, the presence of PW-6 at the scene of occurrence was itself doubtful. The PW-5 also did not name any of theappellant in his previous statement, rather, his categorical statement was that, he couldrecognize only one tall boy by face whereas, while deposing in court he gave a vividdescription implicating all the appellants attributing specific overt act to them. This witnessalso admitted in his evidence that he could know all the appellants during trial. Though, PW-5could not recognize the assailant at the time of occurrence, except a tall boy, he did not

identify any of the accused as the said tall boy whom he could recognize by face at the sceneof occurrence. Evidently, the PW-5 also had the opportunity to be acquainted with theappellants during trial before he adduced his evidence. PW-7 also deposed that he did notknow any of the appellants before the occurrence and could know the name of Ramesh Takuafter his arrest. PW-4 also did not tell the name of any of the accused in his previousstatement under Section 161 CrPC. The PW-4 also admittedly could know the appellants aftertheir arrest and learnt their names during trial. Apparently, this witness also did not tell in hisprevious statement regarding any of the appellant. What therefore crystallizes is that all thePW-1, PW-2, PW-4, PW-5, PW-6 & PW-7 who claimed to be eye witness did not mention thename of any of the appellant in their previous statement recorded under Section 161 CrPC northe name of any of the appellant was mentioned in the FIR. Though all the witnesses claimedto have recognized the assailant, no TIP was held for identification of the appellant, except forone. Though, TIP was held for one of the accused, namely, Ramesh Taku, except PW-1, otherwitnesses, who were also present at the scene of occurrence, were kept away from the TIP. Asalready noticed, the so called TIP was a farce. Evidently, all the PWs were given theopportunity to be acquainted with and know the name of the appellant before they deposed incourt. When the prosecution witnesses who claimed to be eye witnesses did not mention thename of any of the appellant in their previous statement recorded under Section 161 CrPC andthey were given the opportunity to know the appellant after their arrest and before deposingin court, and all of them implicated the appellants and identified them in court by name,including the absentee accused, such identification can hardly be called identification in courtfor the first time, for the simple reason, that all the eye witnesses were given the opportunityto be acquainted with the appellant either by police or by way of their presence in court evenbefore adducing evidence or deposing in court. In the above facts and circumstances, we areof the considered opinion that no credibility can be attached to oral testimony of the PW-1,PW-2, PW-4, PW-5, PW-6 & PW-7 and their identifying of the appellants in court.

21. In Dana Yadav @ Dahu & Ors. Vs. State of Bihar (supra), the Apex Court dealing with the evidentiary value of the identification in court held as under:

“38. (e) Failure to hold test identification parade does not make the evidence ofidentification in court inadmissible, rather the same is very much admissible inlaw, but ordinarily identification of an accused by a witness for the first time incourt should not form the basis of conviction, the same being from its verynature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. Theprevious identification in the test identification parade is a check valve to theevidence of identification in court of an accused by a witness and the same is arule of prudence and not law.

(f) In exceptional circumstances only, as discussed above, evidence ofidentification for the first time in court, without the same being corroborated byprevious identification in the test identification parade or any other evidence,can form the basis of conviction.

(g) Ordinarily, if an accused is not named in the first information report, hisidentification by witnesses in court, should not be relied upon, especially whenthey did not disclose name of the accused before the police, but to this generalrule there may be exception as enumerated above.”

22. In Rabindra Kumar Pal @ Dara Singh Vs. Republic of India (supra), the ApexCourt held as under:

“50. It is clear that identification of accused persons by a witness in the dockfor the first time though permissible but cannot be given credence withoutfurther corroborative evidence. Though some of the witnesses, identified someof the accused in the dock as mentioned above without corroborative evidencethe dock identification alone cannot be treated as substantial evidence, throughit is permissible.”

23. In Mulla Vs. State of U.P. reported in (2010) 3 SCC 508, the Apex Court observedthat identification of an accused by a witness for the first time in court should not form thebasis of conviction. In Bharam Prasaram Kudkachkar Vs. State of Karnataka reported inAIR 2012 (SC) 570, the Apex Court observed that mere evidence of identification for thefirst time in court is not sufficient to sustain the conviction of the accused.

24. In Hem Singh Vs. State of Haryana reported in (2009) 6 SCC 748, the Apex Courtobserved that identification for the first time in court is permissible in law. The said principlehowever, should be applied having regard to the facts and circumstances of each case. Court,as is well known, ordinarily, do not given much credence to identification made in court for thefirst time and that too after a long time.

25. Though, identification in court for the first time is a substantive evidence and permittedby law, the evidentiary value or its credibility always depends on the facts and circumstancesof the case. In the present case, no one mentioned about any of the appellants in theirprevious statement. All the witnesses had the opportunity to see and know the appellants aftertheir arrest and they also came to know the name of the appellants during the trial before theydeposed in court and/or thereafter identified the appellants in court. In view of the above factsand circumstances in our considered opinion no credibility can be attached to the identificationof the appellants for the first time in court by PW-1, PW-2, PW-4, PW-5, PW-6 & PW-7.

26. PW-25 deposed that on the basis of the FSL report, he could identify and seized thevehicle bearing registered number AR-01-E-0440, and arrested the accused Ramesh Tako whowas the de facto owner of the said vehicle. PW-25 further deposed, that on the basis ofconfession of accused Ramesh Tako, he arrested the other accused persons. It is evident fromthe oral testimony of PW-25, that he seized the vehicle allegedly used by the accused personson the basis of the testimony of PW-22, Dr. P. Paul Ramesh, Scientific Officer, who examinedthe CC TV footage. According to him, the CC TV footage had shown a black picture of a greycolour vehicle taking a turn. According to him, because of poor resolution, he could not identifythe car number. According to PW-22, he could ascertain the colour of the vehicle to be greyishblue which was found taking a turn in the street. All the PWs stated that the vehicle allegedlyused by the assailants was kept parked at the place of occurrence and the weapon of offence(dao) was brought out from the backside of the said car whereby they assaulted the victim. Ifthe oral testimony of the prosecution witnesses is believed, then it is difficult to say, that thevehicle found taking turn in the CC TV footage was the vehicle used by the assailants. Thisapart, the colour of a vehicle is not a unique characteristic, to identify a vehicle on the basis ofmere colour, unless there is evidence on record, that only a single vehicle of a particular brandhas been produced by the concerned automobile company. There is no evidence on record,that only a single vehicle of grey colour was produced by the concerned automobile company.Evidently, the PW-25 identified and seized the vehicle on the basis of the report of PW-22, whodeposed, that the colour of the vehicle was grey and arrested the appellant Ramesh Takobeing the owner in possession of the said vehicle. When colour of the vehicle is not a uniquecharacteristic to identify a vehicle and also all the witnesses have stated that the vehicle waskept parked at the place of occurrence, whereas the CC TV footage, which was sent forexamination reflected, that the vehicle was found taking turn, it is difficult to comprehend that the vehicle, which was seized by police and belonged to one of the appellant was used in theoffence. Therefore, the evidence adduced by the prosecution appears to be too fragile in orderto connect the seized vehicle No. AR-01E-0440 with the commission of offence in the instantcase.

27. Another circumstances relied by the learned trial court was the recovery of the Dao onthe basis of disclosure statement of Ramesh Taku. According to PW-25, the InvestigatingOfficer, the Dao being the weapon of the offence was recovered on the basis of disclosurestatement made by the accused from a marshy land at Village-Ganga, where it was found keptin a white gunny bag. According to PW-25, the said ‘dao’ was recovered on the basis of thedisclosure statement of accused Ramesh Taku in presence of PW-17 Kongo Taku and PW-20,Techi Nake. According to PW-17, police took his signature on Ext.3, recovery memo, in hishouse. He also denied the contents of the Ext.3. According to him, police came to his houseand told that a ‘Dao’ was thrown by brother of Ramesh Taku, but same could not be found.This witness, however, was not declared hostile nor his statement was disowned byprosecution. PW-20, the other witness of Ext.3, recovery memo, stated that police came to hishouse as landlord of accused Ramesh Taku, but did not find anything after search of his house.However, this witness was declared hostile. During cross examination of this witness,prosecution sought to elicit, that after lifting the bed of the accused Ramesh Taku, a long Daomeasuring about 30” in rusted condition was found kept inside the gunny bag in the bedroomof the accused Ramesh Taku. What is therefore apparent from the testimony of PW-20 and hiscross examination that prosecution sought to elicit from this witness that the alleged weaponof offence was recovered from under the bed of the accused Ramesh Taku, whereas, thetestimony of PW-25 was that it was recovered from the marshy land at Village Ganga. Theabove evidence of PW-17 & PW-20, who did not support the evidence of PW-25 with regard torecovery of Dao, rendered the prosecution version as to recovery of the alleged weapon ofoffence doubtful for the simple reason, that prosecution itself is coming out with two versionwith regard to the place of recovery of ‘Dao’.

28. Evidently, the seized ‘Dao’ was not sent to FSL for chemical or serological test and assuch, even if it is assumed for the sake of argument that a ‘Dao’ was recovered, there was nofurther material on record to connect it with the commission of offence. When evidence with regard to recovery of the Dao on the basis of disclosure statement has not been supported byindependent witnesses and prosecution also have come forward with two version as to theplace of recovery of the Dao, this circumstance relied by the learned trial court with regard torecovery of the weapon of offence too, in our considered view, cannot be held to have beenproved beyond doubt.

29. When none of the prosecution witnesses mentioned the name of the appellants or anyother accuseds in their previous statement, FIR is silent about the identity of the assailant, theso called TIP was a farce identification of the appellant for the first time in court is foundtotally unworthy of inspiring confidence and the recovery of the vehicle allegedly used by theappellant as well as the recovery of weapon have not been proved beyond doubt, prosecution,can by no stretch of imagination be held to have proved the guilt of the accused personsbeyond reasonable doubt and therefore, in our considered opinion, the impugned judgment ofconviction and sentence cannot be sustained. Accordingly, we set aside the conviction andsentence of the appellants and allowed all the three appeals. The appellants be released andset at liberty forthwith, if not required in any other case.

30. Send down the LCR.

JUDGE JUDGE

Mkk

Comparing Assistant