Vajesinh Babuji Thakore v. State of Gujarat — 1992 DIGILAW 237 (GUJ)

JUDGMENT : K.G. Shah, J. These two appeals have been filed by two out of the three convicts against the consolidated judgment and order dated April 25, 1990 passed by the learned Additional Sessions Judge, Moroi in Sessions Cases No. 22 of 1987 and 7 of 1988. The appellant in Criminal Appeal No. 439 of 1990 is Vajesinh Babuji, who was accused No. 8 before the trial Court. The appellant in Criminal Appeal No. 473 of 1990 is Karsanji Kanag who was accused No. 1 in the aforesaid cases. One Banesinh Maluji Thakore was accused No. 9 in those cases. Along with Karsanji, Vajesinh and Banesinh, there were 11 other accused before the trial Court. The main charge against the accused in those cases was for offences punishable under Sections 307, 395, 397 and 398 of the Indian Penal Code each read with Section of that Code. The accused were also charged for having committed offence punishable under Section of the Indian Penal Code. They were also charged for having committed an offence punishable under Section of the Indian Penal Code. 2. At the end of the trial, the learned Addl. Sessions Judge convicted Karsanji and Vajesinh, the two appellants before us, for offences punishable under Sections 392 and 397 of the Indian Penal Code. The learned Addl. Sessions Judge also convicted Banesinh, accused No. 9, for an offence punishable under Section 392 of the Indian Penal Code. The other accused came to be acquitted. Even the aforesaid three convicts came to be acquitted of the other charges levelled against them. As stated above, Karsanji and Vajesinh have filed appeals. Banesinh has not filed any appeal. 3. The facts of the case may be stated in brief as follows: On the night between February 21, 1987 and February 22, 1987 at about 9.00 p.m., railway passenger train No. 411 was running between Makassar and Duva Stations. In the Second Class Compartment of that train, a long wi th other passengers, were travelling Suresh, P.W.1, Navnit, P.W.2and Manoj, P.W.3. All these three persons were the employees of different funs dealing in Courier (Angadia) services. They were carrying with them parcels meant for being delivered at other stations. When the train was running as aforesaid, some six to eight miscreants entered the compartment and launched an assault on these three persons. All these three persons were the employees of different funs dealing in Courier (Angadia) services. They were carrying with them parcels meant for being delivered at other stations. When the train was running as aforesaid, some six to eight miscreants entered the compartment and launched an assault on these three persons. The assault was launched by means of knife as also by hockey stick. Suresh had a bag containing articles worth about Rs. 2,50,000/-. The miscreants, during the assault, took away that bag. In the assault, Manoj and Navnit sustained some injuries, while Suresh remained unscathed. Having accomplished their purpose of carrying out dacoity, some one of the miscreants pulled the cha in of the train, as a result of which the train halted. The miscreants made good their escape. The train was taken to Wan leaner and from there the two injured witnesses were taken to the hospital. Suresh lodged an information with the Police which led to the investigation. 4. The accused in the cases came to be arrested on different dates during the course of investigation. Two test identification parades were arranged during the course of investigation. On completion of the investigation, charge-sheet was Laid against 14 accused, three of whom have been convicted by the learned Addl. Sessions Judge, as stated above. 5. We have heard Mr. H.L. Patel, the learned Advocate for Vajesinh, accused No. 8. Karsanji, the accused No. 1, was represented by Advocate Mr. H.J. Raichura who, it has been reported, has shifted to Delhi for practice. Mr. Raichura was, therefore, not present. We, therefore, requested Mr. H.L. Patel, learned Advocate for Vajesinh, to hold the brief for Karsanji as well and Mr. Patel was prompt in accepting our request and he has argued the case also for Karsanji. 6. After having heard Mr. H.L. Patel, learned Advocate for(lie appellants, and Mr. Shelat, the learned Addl. Public Prosecutor, we are more than convinced that the convict ion not only against Karsanji and Vajesinh cannot be sustained, but it is required to beset aside even as regards Banesinh, who has not filed any appeal. 7. It is undisputed that the dacoits were wholly unknown to the three witnesses, Suresh, Navnit and Manoj. It was, therefore, that during the course of the investigation, two test identification parades were arranged and the prosecution has placed reliance on the evidence of the test identification parades. 8. 7. It is undisputed that the dacoits were wholly unknown to the three witnesses, Suresh, Navnit and Manoj. It was, therefore, that during the course of the investigation, two test identification parades were arranged and the prosecution has placed reliance on the evidence of the test identification parades. 8. It is undisputed that in a running train the dacoity took place. The question is whether the prosecution has been able to establish that any of the convicts was amongst the dacoits. The learned trial Judge has relied upon the evidence of the eye-witnesses and, in his opinion, the eye-witnesses have been corroborated by the evidence about test identification parades. 9. It is interesting to note that the incident happened on the night of February 21, 1987. Karsanji, one of the appellants before us, was arrested by the Investigating Officer on March 11, 1987. The other two convicts, i.e. Vajesinh and Banesinh, were arrested on April 2, 1987 and yet we find that holding of the test identification parades was inordinately delayed and for that delay the prosecution has not offered any explanation. As said above, Karsanji was arrested on March 11, 1987. He was produced before the learned Judicial Magistrate, First Class on March 12, 1987 and he was remanded to police custody upto March 19, 1987, and yet the Investigating Officer wrote a Yadi to the Executive Magistrate only on March 17,1987 requesting the learned Executive Magistrate to hold a test identification parade at which Karsanji was sought to be put up. The learned Executive Magistrate received that Yadi on March 17,1987, but he had no time to reply to that and he replied to that Yadi, for the first time on March 26, 1987 and therein he fixed April 1, 1987 as the date on which the test identification parade would be held. The test identification parade came to be held on April 1, 1987. In other words, the test identification parade came to be held about 21 days a tier the arrest of Karsanji. For this delay-of 21 days, there is no-explanation offered by the prosecution. We will presently point out that when the culprits am unknown to the identifying witnesses, the test identification parade should be held as promptly as possible. If the delay in holding the test identification parade has not been explained, the evidence about test identification parade would lose much of its importance. We will presently point out that when the culprits am unknown to the identifying witnesses, the test identification parade should be held as promptly as possible. If the delay in holding the test identification parade has not been explained, the evidence about test identification parade would lose much of its importance. Mr. Shaikh, the Investigating Officer, it appears, was not alive to his duty to move into the matter of making arrangements for holding test identification parade at the earliest. On the contrary, this is what Mr. Shaikh, the Investigating Officer, has stated on the point: "I did not feel it necessary between March 11, 1987 and March 17, 1987 that I should arrange for having test identification parade for Karsanji Kanaji arranged." After making the aforesaid statement, the witness hastened to add as follows: "According to me, the value of the test identification parade would be more if it is held after the concerned accused is remanded to judicial custody. 10. Thus, according to the Investigating Officer, the value of the test identification parade would be enhanced if it is held after the concerned accused is remanded to judicial custody. If that be the notion of the Investigating Officer, one fails to understand as to why on March 17, 1987 when Karsanji, the accused No. 1, was under his custody, i.e. under police custody, that he wrote a Yadi to the Executive Magistrate for arranging for test identification parade? The accused No. 1 Karsanji was in his custody upto March 19, 1987 and yet it was on March 17, 1987 that he wrote the Yadi to the Executive Magistrate for holding the test identification parade. These facts would themselves show the hollowness of the statements made by the Investigating Officer from the witness-box for explaining the delay that had occasioned at his end in moving into the matter for making arrangement for holding the test identification parade. We have scanned the evidence of the Investigating Officer and we find no reason why he should not have written the Yadi to the Executive Magistrate on March 11, 1987 or latest on March 12, 1987, with a request to hold the test identification parade. He has wasted about five or six days in moving into the matter for making arrangement for holding the test identification parade. He has wasted about five or six days in moving into the matter for making arrangement for holding the test identification parade. That delay, as we will presently see, would prove fatal to the prosecution evidence about the test identification parade. 11. Then there is another aspect of the matter. The Executive Magistrate received that Yadi on March 17, 1987, however, it was not till March 26, 1987 that he cared to inform the Investigating Officer about the day and time which he had fixed for holding of the test identification parade. And look at it. It was as late as April 1, 1987 that the Executive Magistrate fixed the date for holding t he test identification parade and it was on April 1, 1987 that the test identification parade was held. The net result was that there came to occur unexplained delay of about 21 days in the matter of holding test identification parade at which Karsanji, the accused No.1 was asked to stand in a line and at which out of the eye-witnesses examined before the Court, only Suresh claims to have identified him. 12. So far as Vajesinh, accused No. 8 and Banesinh, accused No. 9, are concerned, they were arrested on April 2, 1987. It was on April 9, 1987 that the Investigating Officer wrote a Yadi to the Executive Magistrate to hold the test identification parade at which Vajesinh and Banesinh were expected to be identified by the eye-witnesses. The test identification parade was held on April 10, 1987. At that test identification parade, though all the three eye-witnesses participated as identifying witnesses, it was witness Suresh who identified both Vajesinh and Banesinh, whereas witness Navnit, while he failed to identify Vanesinh, identified Banesinh. At both the identification parades-one held on April 1, 1987 and the other held on April 10, 1987, the third witness Manoj participated as an identifying witness, but he could rat identify any of the persons as the culprits. 13. To sum up the result of the test identification parade, witness Manoj could not identify any of the accused, witness Suresh identified Karsanji, Vajesinh and Banesinh, while witness Navnit identified only Banesinh. To put it differently, Navnit failed to identify Karsanji and Vajesinh. 14. 13. To sum up the result of the test identification parade, witness Manoj could not identify any of the accused, witness Suresh identified Karsanji, Vajesinh and Banesinh, while witness Navnit identified only Banesinh. To put it differently, Navnit failed to identify Karsanji and Vajesinh. 14. As we have seen in the mailer of holding the test identification parade, there was a delay of about 21 days from the time when Karsanji, accused No.1, had been arrested. In the matter of holding the second test identification parade, there was delay of about eight days from the time when Vajesinh and Banesinh had been arrested. 15. Mr. H.L. Patel, the learned Advocate for the appellants, very strenuously argued that this delay which has occasioned in arranging the test identification parade itself renders the entire evidence about the test identification parades worthless. In support of his submission, he relied upon the case of Bali Ahir and Others v. State of Bihar, AIR 1983 S.C. p. 289. In that case, witness Yogendra Nath had conducted the T.I. Parade on May 6,1968, and the evidence of that witness pointed out that the identifying witness Constable Moinuddin Khan, at the time of the test identification of the suspects had twice moved forward and backward seeing them. This piece of evidence was held to render the identification of the accused by wit ness Moinuddin Khan at the T.I. Parade suspicious. Further the evidence in that case showed that the appellants-accused be longed to the neighbouring village at a distance of less than a mile and the witnesses who came to identify the appellants had seen the accused from behind while escaping, that P.W.2 had known Bali Ahir before, but yet he did not mine him in the first information report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause of the delay and these circumstances, in the opinion of Their Lordships, spoke for themselves. What we want to emphasise is that unexplained delay of four days in holding the T.1. Parade has been held to be a factor which would render the evidence of T.1. Parade quite suspicious or not free from doubt. What we want to emphasise is that unexplained delay of four days in holding the T.1. Parade has been held to be a factor which would render the evidence of T.1. Parade quite suspicious or not free from doubt. In the instant case before us, there is unexplained delay of about 21 days, so far as the first T.1. Parade is concerned and of about eight days so far as the second T.I. Parade is concerned. 16. Mr. Shelat, the learned A.P.P., submitted that in the facts and circumstances of the case, this delay should not he considered to be fatal to the prosecution case. Even the learned Judge has accepted a similar argument advanced before him by the learned Public Prosecutor. We are afraid, the submission cannot be accepted. 17. Here, as indicated here in above, though Manoj was the main victim of the assault by the dacoits as he had sustained some injuries, he could not identify any of the miscreants at either of the two test identification parades. Navnit, while he tailed to identify Karsan and Vajesinh, could identify only Banesinh. Of course, Suresh identified all the three, i.e. Karsan, Vajesinhand Banesinh. But then it has to be remembered that, as the prosecution evidence it self discloses, the entire incident was over within less than two minutes. It was a running train dacoity and it is a common knowledge that when a railway train is running at night, the intensity of the inside light would he less, as compared to what it would be when the train would be halting at the station. It was under these circumstances that Suresh and Navnit claimed to have identified the accused whom they claimed to have identified at the test identification parades and also before the Court. Even at the cost of repetition, we would say that none of the accused was previously known to any of these witnesses. In other words, the accused were all strangers so far as these witnesses are concerned. It was such strangers whom the witnesses had hardly a glimpse to see in a running train where the intensity of the light, as indicated above, would not be very high and, that too, after the assault was launched on them that they claim to have identified the accused. It was such strangers whom the witnesses had hardly a glimpse to see in a running train where the intensity of the light, as indicated above, would not be very high and, that too, after the assault was launched on them that they claim to have identified the accused. Of course, according to the prosecution, though the incident happened on February 21, 1987, the accused were absconding and the first set of the accused came to be arrested as late as March 11, 1987. But then the point to be noticed is that the first test identification parade was held on April 1, 1987, i.e. to say about 39 days after the incident. The second test identification parade was held 48 days after the incident. No much of argument would be necessary to say that in such set of circumstances, there was a high degree of probability of error being committed by the identifying witnesses in identifying the miscreants at the test identification parades held so belatedly. Considering the matter from that angle, in our opinion, the evidence about the test identification parade is worthless. 18. There is yet another view of the matter. Suresh, who claims to have identified Karsan, Vajesinh and Banesinh has, while referring to Karsan, to clear terms stated that he was not in a position to give any description of that accused person. Of course while referring to another miscreant, Kirti singh, with whom we are not concerned in this case, Suresh stated that that man was dark complexioned man. Thus, so far as that Kirti singh is concerned, at least the colour/complexion of the accused was given by Suresh, but so far as Karsan is concerned, he very fairly stated from the witness-box that he was not in a position to give any description of Karsan whom as stated by him, he had identified at the time of the incident, and secondly at the test identification parade held on April 1, 1987. So far as Vajesinh and Banesinh are concerned, Suresh ciaims to have identified them from their dresses. According to Suresh, both of them had put on pants and shirts. We fail to understand how the dress like pant and shirt could be an insignia oran identifying feature of a mean. These days, persons in thousands or, if you may say so, lass, put on pants and shirts. According to Suresh, both of them had put on pants and shirts. We fail to understand how the dress like pant and shirt could be an insignia oran identifying feature of a mean. These days, persons in thousands or, if you may say so, lass, put on pants and shirts. Therefore, the say of Suresh that the persons whom he saw at the time of the incident had put on pants and shirts is neither here nor there. To sum up, Suresh has not been able to give any physical or physiognomical description of any of the miscreants or any of the dacoits. 19. In this connection, reference may be made to the decision in the case of Budhsen and Another v. State of U. P., AIR 1970 SC, p.1321. In that decision, it has been held: "Facts which establish the identity of an accused person are relevant under Section. As a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reason able particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration o f the sworn testimony of witnesses in Court as to the identify of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect amount simply to this : that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section Cr.P.C." (Emphasis supplied) This decision in the case of Budhsen, clearly posits that the identifying witness should ordinarily clarify as to how and in what circumstances, he came to pick out particular accused person, and the details of the part which the accused played in the crime in question, with reason able particularity. 20. In the case of Subash and Shiv Shankar v. State of U.P., AIR 1987 SC P. 1222, it has been held: "It is relevant to mention here that neither in Exhibit Kha I nor in their statements during investigation, the eye-witnesses have given any descriptive particulars of Shiv Shankar. While depositing before the Sessions Judge, they have stated that Shiv Shankar was a tall person and had 'sallow' complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Exhibit Kha I, or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu." This observation in the case of Subash and Shiv Shankar makes it amply clear that if the identifying witnesses do not or cannot give the descriptive particulars of the assailants or the miscreants, their evidence on the point of their having identified those accused at the identification parade or even before the Court would not be safe for placing reliance or for being acted upon. 21. As indicated here in above, Suresh has not been able to give any physical or physiognomical features or description of any of the three accused, i.e. Karsan, Vajesinh and Banesinh. 22. Coming to witness Navnit, as seen above, he has identified only Banesinh. But then he has clearly admitted that he is not in a position to give any description of that accused whom he had identified. Thus, the case of witness Navnit stands on no better footing than the case of witness Suresh. 23. In this connection, we may also, with advantage, refer to the decision in the case of Manzoor v. State of Uttar Pradesh, AIR 1983 SC p. 295. Thus, the case of witness Navnit stands on no better footing than the case of witness Suresh. 23. In this connection, we may also, with advantage, refer to the decision in the case of Manzoor v. State of Uttar Pradesh, AIR 1983 SC p. 295. In pars 12 of that report, it is observed: "If at the earliest opportunity the home guards did not mention any identifying features of the culprits when they were examined by P.W.12, it is difficult for us to believe how P.W. 2 could have identified both the appellants nearly two months later on 17.11.1978." Thus, the enunciations made by Their Lordships of the Supreme Court in the judgments referred to here in above clearly lay down that unless the identifying witnesses give the reasons which enable them to identify the accused as the culprits and unless they give physical or physiognomical descriptive particulars of the particular accused, it would not be safe to rely upon the evidence of such witnesses, when they tell from the witness-box that they had identified a particular accused as a miscreant and that they had identified him at the test identification parade. Considering the matter from this angle also, in absence of any evidence as to on what basis Suresh and Navnit could identify the accused, whom they claim to have identified, it is difficult to rely upon their version from the witness-box that they had identified Karsan, Vajesinh and Banesinh in the case of Suresh and Banesinh in the case of Navnit, as the persons amongst dacoits and that they had identified them at the respective test identification parades. 24. After having considered the relevant evidence in all their aspects, we are convinced that the evidence about test identification parades is required to be kept out of consideration. With that as done, what remains is identification of Karsan, Vajesinh and Banesinh by Suresh from the witness-box and of Banesinh by Navrut from the witness-box. We may mention here that witness Manoj has not been able to identify any of the accused even from the witness-box. If we eschew the evidence about the test identification parades, then, as said above, what remains is the identification of three out of the fourteen accused by Suresh and one by Navnit from the witness-box. We may mention here that witness Manoj has not been able to identify any of the accused even from the witness-box. If we eschew the evidence about the test identification parades, then, as said above, what remains is the identification of three out of the fourteen accused by Suresh and one by Navnit from the witness-box. That evidence, as the judgments of the Supreme Court, referred to by us, clearly point out, could not be accepted for convicting the accused, unless of course the evidence of that identification of the accused by the witnesses is of sterling quality. After having read the evidence of Suresh and Navnit, we are not in a position to certify their evidence to be of sterling quality. That being so, the conviction of Karsan and Vajesinh recorded by the trig Court, which those two accused have challenged in these two appeals, is required to be set aside, for excel* the evidence about test identification parade and the evidence of Suresh and Navnit from the witness-box where they claim to have identified the accused, there is no other evidence to connect any of the convicts with the crime. The appeals filed by Karsan and Vajesinh, therefore, should succeed. 25. That raises for us a question as to what should be done about the conviction against Banesinh. True, Banesinh has not challenged his conviction and sentence by filing any appeal. But then the order of conviction and sentence recorded against the three convicts is a composite order. That order is based upon one and the same evidence. As we are inclined to accept the appeals of Karsan and Vajesinh, we shall have to set aside the conviction of those appellants. Then if we maintain the conviction of Banesinh, that will be doing manifest injustice. If we were to adopt that course, it would come to this that on the same evidence Kansan and Vajesinh would be acquitted while Banesinh would continue to stand convicted, merely because he has not approached this Court by way of appeal. 26. There is ample authority to say that in such a situation, this Court is empowered to set aside the conviction against Banesinh as well. 27. 26. There is ample authority to say that in such a situation, this Court is empowered to set aside the conviction against Banesinh as well. 27. In Hari Nath and Another v. State of U.P., AIR 1988 SC p. 345, though some of the convicts had approached the Supreme Court with appeals against their conviction, Pheku Singh, one of the accused, had not challenged his conviction by preferring an appeal. The Supreme Court accepted the appeal o f the convicts, who had approached Their Lordships with their appeals and while allowing their appeals, Their Lordships also set aside the conviction and sentence imposed upon Pheku Singh This is what Their Lordships of the Supreme Court said it that connection : "13. Accordingly, these appeals are allowed, the conviction and sentence of the appellants in S.T.168 of 1974 on the file of the First Additional Sessions Judge, Jaunput, and affirmed in the Criminal Appeal No. 14 of 1979 on the file of the Allahabad High Court are set aside and the appellants are directed to be set at liberty forthwith. The conviction and sentence of the non appealing accused, namely, Pheku Singh cannot also be sustained consistent with the findings in and the result of these appeals as the findings are inter-dependent and inextricably integrated. The conviction and sentence of Pheku Singh are. also set aside and the said Pheku Singh, the accused No. 3 in S.T. No. 168 of 1974 is also directed to be set at liberty forthwith." Thus, the aforesaid judgment of the Supreme Court clearly points out that in a situation as is obtained in the appeal before us, we have ample power to set aside conviction and sentence passed against Banesinh, he having not preferred any appeal notwithstanding. If that course is not adopted, that would lead to inconsistent results, namely, that on the same evidence Karsan and Vajesinh would be acquitted while Banesinh would continue to stand convicted. That certainly cannot be permitted to be perpetrated. The result would be that the conviction and sentence recorded against Banesinh shall also have to be set aside, even though he has not preferred any appeal. In the result, both these appeals are allowed. The order of conviction and sentence recorded against the appellant in each of the appeals is set aside. The result would be that the conviction and sentence recorded against Banesinh shall also have to be set aside, even though he has not preferred any appeal. In the result, both these appeals are allowed. The order of conviction and sentence recorded against the appellant in each of the appeals is set aside. Each one of the appellants should beset at liberty forthwith, if his presence in custody is not required for any other lawful reason. Banesinh Maluji Tbakore, accused No. 9, before the trial Court is also acquitted of the offence with which he has been charged and for which he has been convicted. He should also be set at liberty forthwith, if his presence in custody is not required for any other lawful reason. If he has already paid up the fine imposed upon him by the trial Court, that should be refunded to him. Appeals allowed.