Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 706 (RAJ)

Nahar Singh v. State of Rajasthan

2015-03-25

VIJAY BISHNOI

body2015
Order This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioners against the order dated 28.01.2015 passed by the Additional Sessions Judge, Jaitaran, District Pali (hereinafter referred to as 'the trial court') in Sessions Case No.43/2015 whereby the application filed by the petitioners for conducting test identification in the presence of Magistrate has been dismissed. Brief facts of the case are that on 25.8.2014, respondent No.2 Ajeet Singh submitted a written report to the S.H.O., Police Station Raas, District Pali while contending that he is Manager of Future Men Power Private Limited, which provides armed guards to the establishments for their security. It is contended that from 5.8.2014, the company of the complainant is engaged in security arrangement of Ambuja Cement Establishment at Rabariyawas and in all 27 security guards of the company are engaged. It is alleged that on 25.8.2014 at about 1:00 A.M., when eight security guards were on duty, then suddenly V.P. Singh Rajput, Ajit Singh Rajput, Gopal Singh Rajput, Gajender Singh Rajput, all resident of Rabariyawas along with several other persons armed with lathies and iron rods entered into transport area yard and attacked the guards, who were on duty in the factory premises. It is alleged that one of the security guards viz. Avdesh Singh received grievous injuries on his head and face etc. and other guards also received serious injuries. It is contended that all the injured persons were referred to Beawar and Ajmer Hospitals for treatment, however, injured Avdhesh Singh Chauhan died during the course of treatment. It is alleged that all the accused persons snatched rifle and 12 bore gun along with cartridges from the security guards. It is contended that on receiving the information from the employees, the complainant reached the spot and transported the injured persons to the hospital. On receiving the written complaint from the Manager Ajeet Singh, the Police has registered the FIR No.146/2013 for the offences punishable under Sections 143, 302, 307, 341, 323 and 395 I.P.C. and started investigation. During the course of investigation, statements of the witnesses were recorded by the police under Section 161 Cr.P.C. and the accused petitioners along with other accused persons were arrested. The police after investigation, filed charge sheet against the petitioners for the offences punishable under Sections 147, 148, 447, 341, 323, 325, 307, 302, 396, 397/149 I.P.C. and 3/25 Arms Act. During the course of investigation, statements of the witnesses were recorded by the police under Section 161 Cr.P.C. and the accused petitioners along with other accused persons were arrested. The police after investigation, filed charge sheet against the petitioners for the offences punishable under Sections 147, 148, 447, 341, 323, 325, 307, 302, 396, 397/149 I.P.C. and 3/25 Arms Act. The concerned Magistrate took cognizance against the petitioners for the aforesaid offences and committed the matter to the trial court. The matter was fixed for framing charges against the petitioners and at that stage, the petitioners moved an application with a prayer that their test identification may be conducted in the presence of Magistrate while claiming that the complainant as well as eye-witnesses have falsely named the petitioners as prior to the incident, they were not known to those witnesses. The said application filed by the petitioners was opposed by the prosecution and the learned trial court vide order dated 28.1.2015 has rejected the said application. Hence, this criminal misc. petition has been preferred by the petitioners. Learned counsel for the petitioners has submitted that the petitioners came with the case before the trial court that the witnesses, who have named the petitioners in their statements recorded under Section 161 Cr.P.C. neither know them nor they have identified them and, therefore, in the interest of justice, test identification is necessary to test the worthiness of the evidence given by the witnesses. It is also contended that if such test identification is conducted, no prejudice will be caused to the prosecution or the complainant. It is also submitted by the counsel for the petitioner that though application for conducting test identification was moved on behalf of 12 accused persons, but this petition is moved on behalf of only seven accused persons. It is also contended that if such test identification is conducted, no prejudice will be caused to the prosecution or the complainant. It is also submitted by the counsel for the petitioner that though application for conducting test identification was moved on behalf of 12 accused persons, but this petition is moved on behalf of only seven accused persons. It is contended that the complainant Ajeet Singh had not named all the petitioners in the written complaint filed initially, however, later on names of the petitioners were included in the statements recorded under Section 161 Cr.P.C. The learned counsel for the petitioners has also submitted that there was no delay on the part of the petitioners to apply for test identification because till date even the charges have not been framed against the petitioners and in the facts and circumstances of the case, it is a fit case wherein the trial court should have ordered for conducting test identification of the petitioners. In support of the above arguments, the learned counsel for the petitioners has placed reliance upon the decision of Hon'ble Supreme Court rendered in Mr. Dalbir Kaur Vs. State of Rajasthan reported in 1976 SCC (CR.) 527 and decision of this Court rendered in Darga & Ors. Vs. State of Rajasthan reported in 1989 Cr.L.R. (Raj) page 14. Per contra, learned Public Prosecutor as well as learned counsel appearing for respondent No.2 have opposed the prayer of the petitioners and submitted that the application filed by the petitioners before the trial court for conducting test identification was delayed. It is contended that the petitioners were arrested in September 2014 and thereafter the police filed charge sheet against them on 19.11.2014 before the concerned court and for the first time, the petitioners had prayed for conducting test identification on 16.12.2014. It is contended that from the above facts, it is clear that the prayer of the petitioners for conducting test identification is highly belated. It is also argued that the petitioners have every opportunity to move application for test identification during the course of investigation and when the petitioners have not availed the said opportunity, it is clear that they want to delay the trial. It is also argued that the petitioners have every opportunity to move application for test identification during the course of investigation and when the petitioners have not availed the said opportunity, it is clear that they want to delay the trial. It is also argued that the petitioners have no right to pray for test identification by the witnesses as there are no provision in the Criminal Procedure Code, 1973 and Indian Evidence Act, 1872 which oblige the investigating agency to hold or confer a right upon the accused to claim test identification. It is also contended that some of accused in the case are still absconding, therefore, the prayer of petitioners cannot be granted. In support of above arguments, learned Public Prosecutor as well as learned counsel for the respondent No.2 have placed reliance upon decisions of Hon'ble Supreme Court rendered in Md. Kalam alias Abdul Kalam Vs. State of Rajasthan reported in AIR 2008 SC 1813 and in Musheer Khan @ Badshah Khan & Anr. Vs. State of Madhya Pradesh reported in 2010 Cr.L.R. (SC) 167 . Heard learned counsel for the rival parties and perused the impugned order passed by the trial court. It is not in dispute that initially the complainant Ajeet Singh named four persons in his written complaint filed on 25.8.2014, however, on the same day, he named 15 persons, along with 4 persons named earlier, in his statement recorded under Section 161 Cr.P.C. In his statement, he has specifically said that the company, in which he is working as Manager, is providing security to Ambuja Cement factory, premises since 5.8.2014. He has nowhere said in his statement that he knew all persons named by him in the statement recorded under Section 161 Cr.P.C. prior to the incident. The other witnesses and security guards present at the time of incident though named the petitioners along with other persons, but have nowhere stated that the petitioners are known to them prior to the incident. It is true that under the schemes of Criminal Procedure Code and the Indian Evidence Act, there is no provision which creates a right in favour of the accused to claim test identification, but it is also true that looking to the facts and circumstances of the case, if such test identification is carried out as prayed by the petitioners, no prejudice would be caused to the prosecution or the complainant. The Hon'ble Supreme Court in Musheer Khan @ Badshah Khan's case (supra) has held that evidence of identification is not substantive evidence and such tests are not only for the purpose of helping the investigating agency and can only be used in corroboration of the statement of the Court. In view of the observations made by the Hon'ble Supreme Court in the above referred case, even if during the course of test identification, the witnesses failed to identify the petitioners, then also the case of the prosecution is not likely to be affected because it could not be a substantive piece of evidence. A coordinate Bench of this Court in case of Darga (supra) after taking into consideration a catena of decisions passed by the Hon'ble Supreme court, has held as under:- “8. In Jadunath Singh vs. State of U.P (1) the accused persons, after their arrest, had submitted an application wherein it was stated that the witnesses were strangers and that there should be an identification parade. The said application was rejected by the Additional District Magistrate on the ground that charge sheet had already been received and the accused had been named by the prosecution witnesses. In the said case the Supreme court while dealing with the appeal of the accused persons against their conviction have considered the decisions of the various Courts on the point and have observed:- “It seems to us that if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eye-witnesses did not know him previously. It may be that there is no express provisions in the Code of Criminal Procedure enabling an accused to insist on an identification parade but if the accused does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, as pointed out above, the prosecution will, unless there is some other evidence, run the risk of losing the case on this point.” 9. In the said case the Supreme Court have also observed that the reason given by the Additional District Magistrate, for refusing to hold the identification parade was not valid and have also observed that the fact that a charge sheet had been received and the accused had been named by the prosecution witnesses was no justification for not having ordered the test identification. In the facts of the said case the Supreme Court held that one witness (PW 2) at least knew the accused from before and, thereof, the trial was not vitiated because the accused persons were denied identification. 10. In Shri Ram vs. State of U.P. (2), Shri Ram accused alongwith Ram Chandra had moved an application before the committal Court wherein it was stated that he was not known to the witnesses and therefore, he should be put up for identification. The said application of the accused was rejected and the Supreme Court, while dealing with this aspect of the case have observed:- “The circumstances that Shri Ram had voluntarily accepted the risk of being identified in a parade but was denied that opportunity was an important poin t in his favour. The High Court rejected it as inconsequential by observing that the oral testimony of witnesses, even if not tested by holding an identification parade, can be made the basis of conviction if the request made by the accused is groundless and the witnesses knew the accused prior to the occurrence. It is correct to say that no rule of law requires that the oral testimony of a witness should be corroborated by evidence of identification. In fact, evidence of identification is itself a weak type of evidence. But the point of the matter is that the Court which acquitted Shri Ram was justifiable influenced by the consideration that though at the earliest stage he had asked that an identification parade be held, the demand opposed by the prosecution and the parade was therefore not held.” 11. Similarly in Dalbirkaur vs. State of Punjab (3), Ajit Singh one of the accused, at the time of surrendering, had given an application wherein he categorically prayed that he should be put at the test identification parade for identification by all the eye witnesses who did not know him from before. Similarly in Dalbirkaur vs. State of Punjab (3), Ajit Singh one of the accused, at the time of surrendering, had given an application wherein he categorically prayed that he should be put at the test identification parade for identification by all the eye witnesses who did not know him from before. On the said application the Magistrate had passed an order that accused Ajit Singh should be identified at the test identification parade and a test identification parade was held but unfortunately one of the eye witnesses, Jaswant Kaur, was not asked to identify him there. The Supreme Court have observed that : “At any rate, either Ajit Singh was known to the witness Jaswant Kaur or he was not known. In any case, in view of the stand taken by Ajit Singh the prosecution should in all fair-ness, have put Jaswant Kaur also at the test identification parade to identify Ajit Singh. If Ajit Singh was not known to Jaswant Kaur as he said, then she would not have been able to identify him. If Ajit Singh was known to her, then also the prosecution was not to lose anything. In view of these circumstances, therefore, I feel it unsafe to rely on the single testimony of Jaswant Kaur, so far as the Appellant Ajit Singh is concerned.” 12. From the aforesaid of the Supreme Court it is clear that if the accused asks for a test identification by the witness who claims to know him from before and such an identification is not granted, then the said circumstances can be taken into consideration by the court while dealing with the credibility of the witness in so far as he implicates the accused. The aforesaid decisions proceed on the assumption that the Court is competent to pass an order for a test identification by the witness if a request for the same is made by the accused. The aforesaid decisions also show that the request for seeking the test identification need not be made during the course of investigation and that it can also be made subsequent to filing of the charge sheet.” ....... ....... 25. The aforesaid decisions also show that the request for seeking the test identification need not be made during the course of investigation and that it can also be made subsequent to filing of the charge sheet.” ....... ....... 25. A perusal of the aforesaid decisions of the various High Courts shows that the general consensus of judicial opinion is that in a case where the accused wants test identification by the witness who claims to have known him from before, in order to show that the said claim of the witness is not true and that the witness does not know the accused from before, the court should order the holding of test identification provided the said request is not made at a very late stage. ...... ...... 31. It is true that no application for test identification was submitted by the petitioners during the course of investigation and the said application had been submitted in both the cases only after the case had been committed for trial to the court of Sessions. In Darga & Others vs. State the application was submitted after the charge had been framed but before Kumari Sukali, the witness from whom test identification is sought, had been examined. In Madan Singh & Others vs. State the application for test identification was submitted after the papers had been received but before the Additional Sessions Judge had framed the charge. 32. In Jadunath Singh vs. State of U.P. (1) the application for test identification had been submitted by the accused persons after the filing of the charge sheet and it had been rejected on the ground that it was belated. The Supreme court, however, held that the fact that a charge sheet had been received and the accused had been named by the prosecution witnesses was no justification for not having ordered the test identification. In Mahendra Singh vs. State of Rajasthan (4) the Supreme Court passed an order for test identification even though the charge sheet had been filed. 33. The aforesaid decisions thus show that a prayer for test identification cannot be refused merely on the ground that it was not submitted during the course of investigation and that it was submitted after the filing of the charge sheet. 33. The aforesaid decisions thus show that a prayer for test identification cannot be refused merely on the ground that it was not submitted during the course of investigation and that it was submitted after the filing of the charge sheet. In the present case it is difficult to understand how the prosecution would be prejudiced by the delay in the filing of the application by the petitioners because the trial before the Additional Sessions Judge is only at the initial stages. The said delay might operate to the prejudice of the petitioners in the sense that during the intervening period the petitioners might have been seen by the witnesses but if the petitioners do not mind this delay and wish to take the risk of having a test identification there should be no reason why the said request of the petitioners should not be allowed. The first objection raised by the learned counsel for the complainants and the learned Public Prosecutor against passing an order for holding a test identification cannot, therefore, be sustained.” After analyzing the law laid down by the Hon'ble Supreme Court and this Court on the point involved, I am of the opinion that in absence of any provision under the Criminal Procedure Code, 1973 and Indian Evidence Act, 1872, an accused cannot ask for test identification as a matter of right, however, if the court is satisfied that there is possibility that the witnesses may not know the accused prior to the incident, it can order for test identification of accused in the presence of Magistrate provided it may not prejudice the case of prosecution. Such order cannot be passed merely on the request of an accused person and complainant. The court has to order for test identification of an accused person after taking into consideration the fact and circumstances of each case. In the present case, the petitioners have specifically contended that they were not known to the complainant as well as the other witnesses prior to the date of incident. As per the complainant, the security company is engaged in securing the factory premises from 5.8.2014 whereas the incident took place on 25.8.2014. The complainant and other security guards are residents of other States and residing in Rabariya was from 5.8.2014. They have not stated in their statements that they are known to the accused petitioners prior to the date of incident. The complainant and other security guards are residents of other States and residing in Rabariya was from 5.8.2014. They have not stated in their statements that they are known to the accused petitioners prior to the date of incident. More importantly the complainant in written complaint specifically named only four persons, though later on in his statement under Section 161 Cr.P.C., he named the petitioners along with other persons. As such the case of the petitioners is different from the accused persons, who were named by the complainant in his written complaint and all the four persons named in the written complaint are not before this Court. The accused persons, who are absconding, also stand on different footing. There is all possibilities that while absconding, they may influence the witnesses not to identify them during test identification. However, the petitioners behind bars since their arrest, possibility of influencing the witnesses are remote. It is also noticed that till date charges have not been framed against the petitioners, therefore, it cannot be said that there is delay on the part of the petitioners in filing application for test identification. Looking to all these circumstances, in the interest of justice, the prayer for conducting test identification is liable to be allowed. In the result, this criminal misc. petition under Section 482 Cr.P.C. is allowed. The order dated 28.1.2015 passed by the trial court in Sessions Case No.43/2015 is set aside. It is directed that the petitioners should be put to test identification parade by the witnesses Nos. (1) Azeet Singh S/o Harnam Singh (2) Munender Singh S/o Narendra Singh, (3) Krishan Pal Singh @ Raju Singh S/o Rana Pratap Singh, (4) Ranjeet Singh @ sonu S/o Suresh, (5) Girraj S/o Siya Ram, (6) Munshi Khan S/o Nathu Khan, (7) Sushil Singh S/o Ramesh Singh and (8) Ram Singh Tomar S/o Kailash. The test identification parade will be held in the Sub-Jail, Jaitaran in the presence of Judicial Magistrate, Jaitaran within a period of one month from the placing certified copy of this order. The test identification parade should be held in the presence of counsel for the accused petitioners as well as Public Prosecutor and counsel for the complainant, if they desire so. The petitioners are directed not to make any effort to alter their appearances and the concerned Magistrate may take necessary precautions in that regard while conducting test identification parade. The test identification parade should be held in the presence of counsel for the accused petitioners as well as Public Prosecutor and counsel for the complainant, if they desire so. The petitioners are directed not to make any effort to alter their appearances and the concerned Magistrate may take necessary precautions in that regard while conducting test identification parade. It is directed that petitioners may not be removed from the jail till test identification parade is conducted.