Allowed

Arkhito and Another v. State Of Chhattisgarh

Chhattisgarh HC18 Feb 2024CRA/1617/2017

Case brief

AI extract

What is this about?

Division Bench of the Chhattisgarh High Court allowed criminal appeals and acquitted appellants of murder and grievous hurt. The court held that Test Identification Parades were invalid due to absence of mixed persons and unreasonable delay, while recovery proved useless for conviction. Consequently, the appellants were acquitted on the basis of benefit of doubt.

What did the court decide?

Impugned judgment of conviction and sentence set aside; all appellants acquitted; appellants set at liberty unless required in connection with any other offence.

Arkhito and Another Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment Reserved On : 30.01.2024

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Judgment Delivered On : 19.02.2024

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{Arising out of judgment dated 30.05.2017 passed in Sessions Trial No.138/2012 by the Second Additional Sessions Judge, Sakti}

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Criminal Appeal No. 959 of 2017

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1. Girdharilal, S/o. Motilal, Aged About 38 Years, Permanent Residence Of Karbi Road, Police Station Pahadi, District Citrakut, Uttar Pradesh. Present Address- Mandir Tiraha, Chandrapur, Police Station Chandrapur, District JanjgirChampa, Chhattisgarh.

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2. Bablu @ Raja, S/o. Anand Kesarwani, Aged About 31 Years, R/o. Chandrapur, Police Station Chandrapur, District Janjgir-Champa, Chhattisgarh.

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---Appellants

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Versus

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State Of Chhattisgarh, Through Station House Officer, Police Of Police Station Chandrapur, District JanjgirChampa, Chhattisgarh.

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---Respondent

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For Appellant No.1 : Mr. Akhilesh Mishra, Advocate For Appellant No.2 : Mr. Ishwar Jaiswal, Advocate For Respondent : Mr. Ashish Shukla, Addl. A.G.

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Criminal Appeal No. 996 of 2017

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Vinod, S/o. Vishal Sahu, Aged About 23 Years, R/o. Kadarganj, Karvi Road, District Chitrakut, Present Address- Chandrapur, Police Station Chandrapur, Civil & Revenue District Janjgir-Champa, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh, Through Station House Officer, Police Station Chandrapur, District Janjgir-Champa, Chhattisgarh.

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---- Respondent

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For Appellant : Mr. Siddharth Dubey, Advocate For Respondent : Mr. Ashish Shukla, Addl. A.G.

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Criminal Appeal No. 1617 of 2017

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1. Arkhito, S/o. Garjan Manjhi, Aged About 55 Years, R/o. Chandrapur, P.S. Chandrapur, District Janjgir-Champa, Chhattisgarh.

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2. Rohit Manjhi, S/o. Kartik Manjhi, Aged About 30 Years, R/o. Chandrapur, P.S. Chandrapur, District JanjgirChampa, Chhattisgarh.

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---- Appellants

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Versus

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State Of Chhattisgarh, Through District Magistrate Janjgir, District Janjgir-Champa Chhattisgarh.

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---- Respondent

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(Cause Title taken from Case Information System)

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For Appellants : Mr. Maneesh Sharma, Advocate For Respondent : Mr. Ashish Shukla, Addl. A.G.

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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(C.A.V. Judgment)

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Sanjay K. Agrawal, J.

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1. The appellants herein, Girdharilal (A-2) & Bablu @ Raja (A-4) have jointly preferred Criminal Appeal No.959/2017, Vinod (A-3) has preferred Criminal Appeal No.996/2017 and Arkhito (A-5) & Rohit Manjhi (A-6) have preferred Criminal Appeal No.1617/2017 under Section 374(2) of

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Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 30.05.2017 passed by the learned Second Additional Sessions Judge, Sakti, District JanjgirChampa, in Sessions Trial No.138/2012, by which they have been convicted for the offence under Sections 302/149 & 323/149 of Indian Penal Code and sentenced as under with a direction to run all the sentences concurrently :-

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CONVICTION		SENTENCE
U/s. 302/149 of IPC	:	Life imprisonment and fine
		of Rs.1000/- each, in
		default of payment of fine, 6 months additional simple imprisonment.
U/s. 323/149 of IPC (Four Times)	:	Rigorous imprisonment for 6 months and fine of Rs.
		500/- each, in default of
		payment of fine, 1 month additional simple imprison- ment.

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(Criminal Appeal No.1050/2017 filed by Ramkrishna (A-1) has been disposed off as having become abated by order dated 24.07.2021).

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2. Since common question of law and facts are involved in these appeals and have been arisen from Sessions Trial

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No.138/2012, they have been clubbed together, heard together and are being decided by this common judgment.

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3. Case of the prosecution, in brief, is that on 02.05.2009, at 4:00 p.m., at Nathaldai Temple, the appellants herein in their coconut shop abused Ishwar (PW-2), Navin (PW-3), Rajkumar (PW-4), Ranjit (PW-6) and Bablu in furtherance of their common object assaulted them by hand & fists and by dangerous weapon, by which, Bablu died and caused simple injury to Ishwar (PW-2), Navin (PW-3), Rajkumar (PW-4) and Ranjit (PW-6) and also damaged the vehicle owned by Dinesh Kumar Jaiswal; thereby, the aforesaid offences have been committed. Further, case of the prosecution is that on 02.05.2009, Dilip Ratre (PW-1) had gone to Chandrahasani Temple at Chandarpur to perform the marriage of his daughter Sunita with Ashok Kumar Satnami and after completion of the marriage, he along-with others came into Mahanadi bridge and was taking coconut from the coconut shop of the appellants, then the dispute arose on account of purchasing coconut, due to which, the appellants assaulted Ishwar (PW-2), Navin (PW-3) Rajkumar (PW-4) and Ranjit (PW-6), by which, they suffered grievous injuries and on the report of complainant Dilip Kumar Ratre (PW-1), offences under Sections 294, 506 Part-II, 323 & 427 of I.P.C. were

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registered against the appellants vide Ex.P-1 and the injured persons were examined vide Ex.P-36, Ex.P-38, Ex.P-40, Ex.P-42 & Ex.P-44 and during course of treatment at Raipur, Bablu died, pursuant to which, merg intimation was registered vide Ex.P-35 at Police StationMohadapara, Raipur and dead body of deceased Bablu was subjected to post-mortem, which was conducted by Dr. E.K.Thakur (PW-19), who proved the post-mortem report Ex.P-51, in which, cause of death was stated to be cardio respiratory failure as a result of head injury and its complications and death was homicidal in nature. Pursuant to memorandum statement of Girdharilal (A-2), wooden log was seized vide Ex.P-22, pursuant to memorandum statement of Vinod (A-3), wooden stick was seized vide Ex.P-21 and on the memorandum statement of Arkhito (A-5), wooden stick was seized vide Ex.P-23, but no FSL report has been brought on record to hold that the seized articles were stained with human blood. Furthermore, the Test Identification Parade (for short “TIP”) was conducted vide Ex.P-3, Ex.P-7 & Ex.P-9 by the Executive Magistrate A.P.S. Parihar (PW-26) in the concerned Tahsil office to identify the accused persons, as Ishwar (PW-2), Navin (PW-3), Rajkumar (PW-4) and Ranjit (PW-6) did not know the appellants herein prior to date of

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offence, in which, they identified the appellants as persons who have assaulted Bablu and to them also. As per the FSL report (Ex.P-65) on Article A, B & C i.e. Handkerchief of Navin (PW-3), Full-pant of Navin (PW-3) & Scarf of Ishwar (PW-2) blood was found and further on Article C i.e. Scarf of Ishwar (PW-2) human blood was found. After due investigation, the appellants were charge-sheeted for the aforesaid offences before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

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4. In order to bring home the offence, prosecution examined as many as 27 witnesses and exhibited 65 documents and the appellants-accused in support of their defence has not examined any witness, but has exhibited the document Ex.D-1 & Ex.D-2.

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5. The trial Court, after appreciation of oral and documentary evidence on record, convicted all the accused persons for the offence under Sections 302/149 & 323/149 of Indian Penal Code and sentenced them as mentioned in the opening paragraph of this judgment

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against which the present appeal has been preferred by four appellants, as appeal of appellant Ramkrishna (A-1) has already been disposed off as having become abated on 24.08.2021.

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6. Mr. Akhilesh Mishra & Mr. Ishwar Jaiswal, Advocates for the appellants (A-2 & A-4) in Criminal Appeal No.959 of 2017 would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt, the identity of the appellants as to the author of the crime have not been established beyond reasonable doubt. The test identification proceeding conducted vide Ex.P-3, Ex.P-7 & Ex.P-9 is not in accordance with law, as the other persons were not mixed along-with accused persons, which was admitted by Executive MagistrateA.P.S.Parihar (PW-26) who conducted the TIP and only the complainant, injured witnesses and all accused persons were there in the TIP, which is nothing but farce proceeding. Therefore, since the identity of the accused persons is not established to be the perpetrator of the crime and nothing has been recovered from the appellants herein except wooden log and no FSL report has not brought on record; therefore, in light of the decision of the Supreme Court in the matter of Balwan

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Singh v. State of Chhattisgarh1 , even if the recovery is 1 (2019) 7 SCC 781

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proved beyond reasonable doubt and human blood was not found, recovery is of no use to the prosecution and, as such, they are entitled for acquittal on the basis of benefit of doubt.

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7. Mr. Siddharth Dubey, learned counsel for the appellant in Criminal Appeal No.996 of 2017 would submit that the identity of Vinod (A-3) is also not established as per the TIP conducted vide Ex.P-3, Ex.P-7 & Ex.P-9 and though wooden stick was seized from the memorandum statement of A-3, but no FSL report has been brought on record and recovery is of no use to the prosecution in light of decision of the Supreme Court in Balwan Singh (supra) and, as such, the appellant is entitled for acquittal.

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8. Mr. Maneesh Sharma learned counsel for the appellants (A-5 & A-6) in Criminal Appeal No.1617 of 2018 would submit in same line and stated that Ishwar (PW-2), Navin (PW-3), Rajkumar (PW-4) and Ranjit (PW-6) did not know the appellants prior to date of incident, therefore, valid TIP was sine qua non for identifying the appellant, which has not been done and TIP conducted vide Ex.P-3, Ex.P-7 & Ex.P-9 are not in accordance with law; therefore, they are entitled for acquittal on the basis of benefit of doubt.

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9. Per contra, learned State counsel would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the learned trial Court has rightly convicted the appellants for the aforesaid offences. He further submits that the TIP conduced vide Ex.P-3, Ex.P-7 & Ex.P-9 are in accordance with law and, as such, all three appeals deserve to be dismissed.

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10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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11. The first question for consideration as to whether the death of deceased Bablu was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-51 proved by Dr. E.K.Thakur (PW-19), in which, cause of death was stated to be cardio respiratory failure as a result of head injury and its complications and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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12. Now, admittedly, it is a case of the prosecution that five appellants along-with deceased appellant armed with dangerous weapon and assaulted Ishwar (PW-2), Navin

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(PW-3) Rajkumar (PW-4) and Ranjit (PW-6), by which, they suffered grievous injuries and also to one Bablu, who died during course of treatment in the hospital at Raipur. It is also case of the prosecution that Ishwar (PW-2), Navin (PW-3), Rajkumar (PW-4), Ranjit (PW-6) and complainant Dilip (PW-1) did not know the appellants herein prior to the date of offence and therefore, the TIP was conducted. The complainant Dilip (PW-1) who has lodged the FIR, in para 7 of his statement, has clearly stated that he did not know the appellants herein prior to the date of offence and dispute occurred while purchasing coconut from the shop of the appellants and even in para 11, statement has been made that the appellants were the shopkeepers to whom he did not know prior to incident/date of offence. Similarly, Ishwar (PW-2), who is also injured eye-witness, in para 6 of his statement, has stated that prior to the date of offence, he did not know the appellants herein by face and by name. Navin @ Dadu (PW-3) has also stated that in the TIP conducted by the Tahsildar, he has identified the accused persons/ appellants herein. Rajkumar (PW-4) did not make any specific statement as to whether he knew the appellants prior to the date of offence or not, and he has only stated that he did not know Rohit prior to the date of offence and

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he also stated that he cannot identify the persons who have assaulted him. Ranjit Kumar (PW-6) in his statement has stated that he know accused Rohit and he stated that he did not identify the persons who committed mar-peet. As such, from careful perusal of the statements would show that the appellants and complainant Dilip (PW-1) and injured eye-witnesses Ishwar (PW-2), Navin (PW-3) Rajkumar (PW-4) and Ranjit (PW-6) were strangers to each other and they did not know each other prior to the date of offence and that is a reason why the TIP was conducted by the competent authority on 05.05.2012, three years after the date of incident to identify and to ensure that the investigation carried out by the investigating authority are going on in the correct direction.

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13. Now, three TIP has been conducted by the Executive Magistrate/Naib Tahsildar– A.P.S.Parihar (PW-26). Ex.P-3 is the first TIP, in which, complainant Dilip Ratre (PW-1) has identified A-1 (now deceased), A-2 (Girdharilal), A-3 (Vinod), A-4 (Bablu) and A-5 (Arkhito). However, a careful perusal would show that Dilip (PW-1) has identified five accused persons A-1 to A-5 except A-6 (Rohit) in presence of Bhaiyalal Lahre and Gopal Lahre (PW-24) and it was held in the office of Up-Tahsil Chandrapur at 2:30 p.m.

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on 05.05.2019, in which, apart from five accused persons, complainant Dilip Ratre (PW-1), Ishwar (PW-2) and Dadu @ Navin (PW-3) were present. However, in the Kaifiyat column, the following note has been appended by the Executive Magistrate.

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dSfQ;r 11 vkt fnukad 05@05@2012 dks mi&rglhy dk;kZy; pUnzdk esa vkjksih dzekad 01 ls 05 rd dk f”kuk[rh fnyhidqekj jk=s firk cq/kjke jk=s mez &57 o’kZ ls izR;sd vjksih dk f”kuk[rh iFkd iFkd feyk;s x;s O;fDr;ksa ds lkFk feykdj djk;k x;kA tks vkjksih dzekad 01 ls 05 rd dks ns[kdj o Nw dj ;g dkj.k ifgpkuk fd vkjksih 01 ls 05 rd ykBh] MaMk] jkM ls eq>s o esjs lkFkh ccyw lkr cts dks fnukad 02@05@2012 dks ekj&ihV fd;s gSA f”kuk[rh ds oDr dksbZ iqfyl ds deZpkjh o vf/kdkjh mifLFkr ugha FksA lgh@& gLrk{kj

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14. A careful perusal of this note appended by the Executive Magistrate would show that though he has stated that five accused persons A-1 to A-5 have been identified by Dilip Kumar Ratre (PW-1) and other persons were mixed, but the persons, names and address and their body structure have not been mentioned in TIP proceedings.

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However, Executive Magistrate - A.P.S. Parihar has been examined as PW-26 and he has proved Ex.P-3, which has been recorded by the Patwari, who is not examined. However, in para 6, the Executive Magistrate has clearly stated that in TIP, only 8 persons were there, 5 accused persons A-1 to A-5 and 3 other persons. Meaning thereby, 5 accused persons A-1 to A-5 and complainant Dilip Kumar Ratre (PW-1), Ishwar (PW-2), Navin @ Dadu (PW-3) and witnesses to the identification proceeding Bhaiyalal Lahre & Gopal Lahre (PW-24). As such, it has been proved that in TIP (Ex.P-3), no other persons were mixed with suspect A-1 to A-5, which was absolutely necessary for conducting the valid TIP in accordance with law.

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15. Similarly, the TIP vide Ex.P-7, Ishwar (PW-2) has identified A-1 to A-5 in presence of Gopal Lahre (PW-24) and again the person mixed along-with suspect A-1 to A-5 have not been mentioned in Ex.P-7 and A.P.S.Parihar (PW-26) has clearly admitted that the person mixed has not been mentioned in the TIP. However, he has confirmed that only 8 persons, meaning thereby, Dilip (PW-1), Ishwar (PW-2) and Navin @ Dadu (PW-3) alongwith A-1 to A-5 only were present in the TIP and two witnesses to the TIP proceeding.

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16. Similar is the position with the TIP conducted vide Ex.P-9 where Navin @ Dadu (PW-3) has identified A-1 to A-5, but no other person mixed has been named or body structure has been stated in the Kaifiyat column.

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17. It is well settled law that the necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a TIP is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. (See: Heera & Anr. v. State of Rajasthan2 ).

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18. The identification test is not substantive evidence, such tests are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. (See : Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh 3)

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19. Recently, the Supreme Court in the matter of Rajesh Alias Sarkari @ Anr. v. State of Haryana 4 considering the object of conducting TIP, laid down the principles to be

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2 AIR 2007 SC 2425

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3 (2010) 2 SCC 748

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4 (2021) 1 SCC 118

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followed for proper conduct of TIP and in para 43 & 44 held as under :

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“ 43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinize the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarized as follows:

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43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye- witness to the crime;

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43.2. There is no specific provision either in the CrPC or the Indian Evidence Act, 1872, which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.

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43.3. Identification parades are governed in that context by the provision of Section 162 of CrPC.

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43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.

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43.5. The identification of the accused in court constitutes substantive evidence.

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43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.

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43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.

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43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness’ identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.

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43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.

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43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.

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43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.

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43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn

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against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.

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44. These principles have evolved over a period of time and emanate from the following decisions:

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Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391]

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Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406 : 1973 SCC (Cri) 828]

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Malkhansingh v. State of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247]

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Visveswaran v. State [(2003) 6 SCC 73 : 2003 SCC (Cri) 1270]

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Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631 : 2005 SCC (Cri) 1269]

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Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385]

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Ashwani Kumar v. State of Punjab [(2015) 6 SCC 308 : (2015) 4 SCC (Cri) 171]

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Mukesh and Ors. v. State (NCT of Delhi) [(2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673]

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As such, it is quite vivid that the facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.

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20. Returning to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court in Rajesh (supra), it is quite vivid that in the instant case vide Ex.P-3, Ex.P-7 & Ex.P-9 though the TIP was conducted by Executive Magistrate-A.P.S. Parihar (PW-26)

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to identify the accused persons, but apart from the complainant Dilip Ratre (PW-1), Ishwar (PW-2) and Navin (PW-3) along-with five accused persons A-1 to A-5, no other person was mixed in the TIP, which is apparent from Ex.P-3, Ex.P-7 & Ex.P-9 and as per the statement of A.P.S. Parihar (PW-26), as according to him, in the TIP, only 8 persons were there i.e. 5 accused and 3 persons who have to identify and by that the TIP was conducted.

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21. The best way to test the evidence of the witnesses regarding the identity of the accused is to mix the latter with other persons and to give the witnesses an opportunity of picking them out. Where this procedure is not adopted either by the Police or by the Magistrate who conducted the commitment proceedings and no explanation is forthcoming as to the omission, it is very serious defect both in the investigation and the conduct of the case. (See : (1947) 48 Cri LJ 522 (529) (DB) (Lah) {Amandchand v. The Crown}

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22. The Allahabad High Court in the matter of Anwar & Another v. State 5, it has been held that first rule relates to number of under-trials to be mixed with the suspect to eliminate reasonable possibilities of chance identification and to make results of the identification acceptable. It has been further held one of the rules laid down for testing 5 AIR 1961 All 50

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the observation and memory of identifying witnesses relates to the number of under-trials to be mixed with a suspect in order to eliminate the reasonable possibilities of a chance identification and to make the results of identification acceptable. Further, it has been held that the second rule stresses that the performance of the witnesses in other parades is also relevant in assessing his power of observation. Each suspect should be put up separately for identification mixed with nine or more under-trials. The ratio of 7 : 1 in the case of one or two suspects ipso facto considerably diminishes the value of identification and unless the investigation is absolutely above board, it would not be prudent to place any reliance on such identification.

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23. Further, it has been held in Dal Chand & Anr. v. State 6

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that as a safe rule of prudence, a fair proportion of outsiders mixed with the suspects, considering the circumstances of the case should always be insisted upon by every Magistrate who is charged with the duty of conducting identification proceedings.

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24. Similarly, in State v. Wahid Bux & Others 7, in identification parades, it is always better to have as large a number of persons mixed up with the accused as

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6 AIR 1953 All 123

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7 AIR 1953 All 314

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possible. If five times the number of the accused persons are mixed with them, it cannot be said that there is any flaw in the identification proceedings.

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25. In the matter of Budhsen & Anr. v. State of U.P. 8 their Lordships of the Supreme Court laid down the principles of law where conviction based solely on identification of witnesses by test identification parade and laid down the principles for conducting the TIP and held that the number of persons mixed up with the accused should be reasonably large and their bearing and general appearance should not glaringly dissimilar and held in para 7 as under :

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“7. Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. 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 reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the

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8 1970 (2) SCC 128

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identity 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. 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 162 , Cr. P.C. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations : (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done an the identification. Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify.

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Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seems to be of basic importance in the evaluation of identification. The persons required to identify an accused should have bad no, opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court. Shri Pratap Singh, Magistrate, who conducted the identification, has appeared at the trial as P.W. 20. The identification memo in respect of Naubat, appellant, is Ex. Ka 20, dated October 21, 1967 and in respect of Budhsen is Ex. Ka 21, dated October 28, 1967.

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26. Recently, in the matter of Gireesan Nair & Others v.

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State of Kerala9 , Their Lordships of the Supreme Court

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held as under :-

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“33. It is significant to maintain a healthy ratio between suspects and non-suspects

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9 (2023) 1 SCC 180

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¶139

during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non-suspects should be of the same age-group and should also have similar physical features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The officer concerned overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality ( Rajesh Govind Jagesha v. State of Maharashtra 10 and Ravi v. State 11).

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27. As such, in light of the principles of law laid down by their Lordships of the Supreme Court in the case in hand, it is quite apparent on the basis of the record that the date of incident is 02.05.2009 and the TIP was conducted on 12.05.2012 approximately after a period of three years and no valid explanation has been put forth on record as to why there is delay of three years in conducting the TIP vide Ex.P-3, Ex.P-7 & Ex.P-9. The complainant Dilip Ratre (PW-1) vide Ex.P-3 has identified five accused persons at once and as per the statement of A.P.S.Parihar (PW-26) except Dilip Ratre (PW-1), Ishwar (PW-2), Navin (PW-3) and five accused persons A-1 to A-5, no other

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10 (1999) 8 SCC 428 11 (2007) 15 SCC 372

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persons were mixed in TIP; whereas, the TIP of each of the accused should have been conducted separately and number of persons mixed with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. However, no person at all were mixed in the TIP conducted vide Ex.P-3, Ex.P-7 & Ex.P-9, except the persons who had to identify and the accused persons (A-1 to A-5). In that view of the matter, Dilip (PW-1) in TIP (Ex.P-3), Ishwar (PW-2) in TIP (Ex.P-7) & Navin (PW-3) in TIP (Ex.P-9) have no difficulty in identifying the appellants as a person who alleged to have committed the offence. Moreover, there is delay of three years in holding the TIP and further, no persons were mixed up with the accused persons having their bearing and general appearance similar and in that view of the matter, the TIP has not been conducted by A.P.S. Parihar (PW-26) in accordance with principles of law laid down by Their Lordships of the Supreme Court in Budhsen (supra) and in Rajesh (supra) and, as such, the TIP - Ex.P-3, Ex.P-7 & Ex.P-9 are not in accordance with law.

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28. Since Dilip Ratre (PW-1), Ishwar (PW-2), Navin (PW-3), Rajkumar (PW-4) and Ranjit (PW-6) did not know the appellants prior to the date of incident by face or by name as they have admitted in their statement that the

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appellants have assaulted him, by which, Bablu died subsequently and they have suffered injuries cannot be relied upon to hold them guilty for the aforesaid offences.

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29. Furthermore, the recovery has been relied upon heavily on behalf of the prosecution that from Girdharilal (A-2) wooden log was seized, from Vinod (A-3) wooden stick was seized and from Arkhito (A-5) wooden stick was seized, however, it is well settled law that the recovery is weak piece of evidence.

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30. The Supreme Court in the matter of Mani v. State of Tamil Nadu12 , considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

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“26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts

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12 (2009) 17 SCC 273

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that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

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31. Furthermore, the Supreme Court in the matter of Balwan Singh (supra) held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-23 & 24 as under:

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“ 23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has

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to prove, or need not prove, that the blood groups match.

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24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

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32. Thus, in view of the decision of the Supreme Court in Mani (supra) and Balwan Singh (supra), recovery is of no use to the prosecution. However, nothing has been seized from the possession of Rohit (A-6), neither his memorandum has been recorded nor any recovery has been made from him and also there is no any incriminating material against Rohit (A-6).

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33. Concludingly, it is held that the TIP, which has been conducted by the prosecution vide Ex.P-3, Ex.P-7 & Ex.P-9 is not in accordance with law and, as such, the identity of appellants for authors of the crime have not been proved by the prosecution beyond reasonable doubt. Furthermore, the recovery from A-1 to A-4 is of no use in light of the decision of the Supreme Court in Mani (supra)

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& Balwan Singh (supra) and, as such, there is no evidence and therefore, all the accused persons/ appellants are entitled for acquittal on the basis of benefit of doubt.

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34. In view of the above, we are of the considered opinion that the appellants herein are entitled for acquittal on the ground of benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence dated 30.05.2017 is hereby set aside. The appellants are acquitted of the charges under Section 302/149 & 323/149 of I.P.C. All the appellants shall be forthwith set at liberty, unless they are required in connection with any other offence.

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35. In the result, the appeals are allowed.

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36. Let a certified copy of this judgment along-with the original record be transmitted to the trial Court and the concerned Superintendent of Jail be also supplied with a copy of this judgment for information and necessary action, if any, at the earliest.

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Sd/Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Ashok

Arkhito and Another v. State Of Chhattisgarh

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Arkhito and Another v. State Of Chhattisgarh

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