Not Safe To Convict Accused Solely On Basis Of Their Identification For First Time In Court: SC Acquits Murder Accused

While observing that it was not safe/prudent to convict the accused solely based on their identification for the first time in the Court, the Supreme Court acquitted two persons accused of murder.

"Even applying the law laid down by this Court in the aforesaid decisions and looking to the facts narrated hereinabove, we are of the opinion that it would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court.", the Bench of Justice MR Shah and Justice Aniruddha Bose observed.

The two accused persons Amrik Singh and Subhash Chander were convicted and sentenced to life imprisonment by Trial Court for committing robbery and murdering Gian Chand (deceased) during the course of the robbery. The High Court had also confirmed their conviction and sentence.

It was the case of the prosecution that two individuals- deceased and the complainant-Des Raj while going towards their village were tried to be stopped by three persons. When the complainant did not stop co-accused Subhash Chander threw red chilli powder into the eyes of the complainant after which the scooter stopped and the complainant was temporarily blinded.

It was alleged that while trying to snatch the scooter of the complainant, accused – Amrik Singh shot the deceased Gian Chand in the chest. The complainant arrived in the fields and upon his return, he saw that the assailants had taken away the scooter and Gian Chand was lying unconscious with blood oozing out of his chest.

As per the case of the prosecution, the motive was that the father of the deceased had executed a sale deed in favor of the sons of the complainant for the purpose of which they had gone to the office of the Sub­registrar. The consideration for the sale had not been paid and an amount of Rs.5 lakhs was in the dicky of the scooter, which the assailants had stolen.

In course of the investigation, Subhash Chander and Amrik Singh – the accused were arrested on the basis of the disclosure statement of the appellant-accused – Amrik Singh.

Some amount of money was recovered alleged to have been looted out of Rs.5 lakhs.

The Trial Court held the accused guilty by mainly relying upon the deposition of the original complainant who was cited as an eye­witness and on the recovery of Rs.1 lakh from the place suggested by the accused.

The appeals against the order of the Trial Court came to be dismissed by the High Court. Aggrieved the accused moved Supreme Court.

Advocate Roohina Dua, appearing on behalf of the accused submitted that as such the appellants/accused were convicted on the deposition of the original complainant – informant and the identification of the accused in the Court by him.

It was submitted that Test Identification Parade (TIP) was not conducted to identify the accused. It was further submitted that not conducting the TIP was fatal to the case of the prosecution more particularly when PW1 who is the original complainant did not disclose any description of the accused before the I.O. and even in the FIR.

It was submitted that the factum of Rs.5 lakhs being carried in the scooter by the complainant and the deceased was not established and proved.

It was contended that in the facts and circumstances of the case it was not safe to rely upon the identification of the accused for the first time in Court.

On the other hand, Advocate Richa Kapoor, appearing for the respondent – State, argued that when PW1 – eye­witness had identified the accused in the Court Room, non­conducting the TIP would not vitiate the trial and the case of the prosecution.

She submitted that as was held by the Apex Court in a catena of decisions, TIP is not substantive evidence and in fact the substantive evidence is that of identification in Court.

It was further submitted that as such the accused had failed to explain and/or failed to account the recovery of Rs.1 lakh each.

The Court observed that the accused were convicted mainly on the identification of the accused by original complainant in the Court Room. The Court also noted that no TIP was conducted before that.

The Court observed that the prosecution had failed to prove that the complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter and that it was the very looted amount that was recovered from the accused. The Court held that the accused cannot be convicted on the basis of recovery of some cash.

The Court further noted that nothing was mentioned in the first statement of the original complainant that he had seen the accused earlier and that he will be able to identify the accused.

The Court also observed some contradictions in the first statement of the complainant recorded in the form of FIR and in the deposition before the Court.

"In the deposition before the Court, he has tried to improve the case by deposing that he had seen the accused in the city on one or two occasions. The aforesaid was not disclosed in the FIR. Even in the cross­examination as admitted by PW1 he did not disclose any description of the accused. At this stage it is to be noted that PW1 has specifically and categorically admitted in the cross-examination that it is incorrect that the accused were known earlier. He disclosed only the age of the accused.", the Court observed.

In that view, the Court held that conducting TIP was necessary and that it was not safe to convict the accused solely on their identification by the complainant for the first time in the Court.

"In view of the above and for the reasons stated above, we are of the firm opinion that both, the learned Trial Court as well as the High Court have committed a grave error in convicting the accused. The judgment and orders passed by the learned Trial Court confirmed by the High Court convicting the accused for the offence under Sections 302 read with Section 34 and Section 392 IPC respectively are unsustainable and they deserve to be quashed and set aside and the accused are to be acquitted for the purpose for which they were tried.", the Court concluded.

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