Supreme Court of India
MD. SAJJAD @ RAJU @ SALIMversusSTATE OF WEST BENGAL
- Citation
- 2017 INSC 29
- Decided
- 6 January 2017
- Disposal
- Appeal(s) allowed
- Bench
- PINAKI CHANDRA GHOSE
Holding
The prosecution failed to establish guilt; the appellant is acquitted and the acquittal benefits the non‑appealing co‑accused as well.
Summary
The appellant, Md. Sajjad, was convicted under Sections 302 and 34 of the Indian Penal Code for the murder of Ramchandra Singh, based primarily on the testimony of three eyewitnesses and the suspicion of the victim's widow. The eyewitnesses identified the accused in a test identification parade held more than two months after the incident, without having previously described any distinctive features of the perpetrators. The Court examined the effect of the inordinate delay and the lack of any descriptive particulars, concluding that such identification could not be the fulcrum of the prosecution's case. The widow's suspicion, arising from a business dispute, was deemed insufficient to establish guilt. Consequently, the Court acquitted the appellant, holding that the prosecution had not proved the case beyond reasonable doubt, and extended the benefit of this acquittal to the co‑accused who had not appealed.
Issues considered
- The reliability of identification evidence when the test identification parade is conducted after a substantial delay.
- Whether the suspicion expressed by the victim's widow can constitute sufficient corroborative evidence for conviction under Sections 302 and 34 IPC.
- Whether the benefit of an acquittal should extend to a co‑accused who did not file an appeal.
- Whether the prosecution has discharged the burden of proving guilt beyond reasonable doubt in the absence of corroborative material.
Legislation cited
- Code of Criminal Procedure, 1973s. 164
- Indian Penal Code, 1860s. 302, s. 34
Subjects
test identification paradedelay in identificationbenefit of doubtacquittalnon‑appealing co‑accusedSection 302 IPCSection 34 IPCcircumstantial evidence
Judgment
[2017] l S.C.R. 265
MD. SAJJAD @ RAJU @ SALIM A
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 1953 of20 l 0)
JANUARY 06, 2017 B
[PINAKI CHANDRA GHOSE AND
UDAY UMESH LALIT, JJ.]
Penal Code, 1860: s.302 r!w s.34 - Conviction under - Delay
in holding Test Identification Parade - Effect of - Dead body of
husband of PW-8 found lying on the road - Death was due to
c
strangulation and head injuries - Entire prosecution case rested
on the identification by prosecution witnesses and on the suspicion
expressed by PW-8 which arose out of dispute in connection with
business - Prosecution witnesses stated that they saw four persons
in the company of the deceased on previous night of murder and D
recognized appellant and co-accused in the Test Identification
Parade - Conviction by courts below - On appeal, held: None of
the prosecution witnesses had given any identification marks or
disclosed special features or attributes of any of the four persons
in general and the accused in particular - No incident or crime
E
had actually taken place in presence of these prosecution
witnesses - Identification parade itself was held two 111onths after
the incident of murder - Their chance meeting was also in the night
without there being any special occasion for the111 to notice the
. features of any of the accused which would then register in their
minds so as to enable them to identifY them on a future date - In the F
circumstances, such identification si111plicitor· cannot for111 the basis
or be taken as the fulcrum for the entire case of prosecution - The
suspicion expressed by PW-8 was also not enough to record the
finding of guilt against the appellant - Prosecution having failed
to establish its case against the appellant, benefit of doubt granted
G
to the appellant and he is acquitted of all charges.
Criminal law: Acquittal of accused-appellant - Entitlement
of non-appealing accused to claim acquittal - Held: If on evaluation
of case, a conclusion is reached that no conviction of any accused
was possible the benefit of that decision must be extended to the
H
265
266 SUPREME COURT REPORTS [20 I 7] I S.C.R.
A similarly situated co-accused even though he had not challenged
the order by way of appeal.
Allowing the appeal, the Court
HELD: 1. In the present case, apart from the identification
by PWs 3, 5 and 16 and their version that they bad seen the
B deceased in the company of four persons on the night intervening
11.7.1993 and 12.7.1993, there .is nothing which could point in
the direction of the. guilt of the appellant and non-appealing
accused. The confessional statement having been discarded,
there is no other material to lend any corroboration. The matter
c thus stands and rests purely on the identification by PWs 3, 5 and
16 apart from the suspicion expressed by PW 8. Apart from the
fact that there was delay in holding the Test Identification Parade,
one s,triking feature is that none of the concerned prosecution
witnesses bad given any identification marks or disclosed special
features or attributes of any of those four persons in general and
D the accused in particular. Further, no incident or crime bad
actually taken place in the presence of those prosecution
witnesses no'r any special circumstances had occurred which' would
invite their' attention so as to register the features or special
attributes of. the concerned accused. Their chance meeting, iis
E
alleged, was. in the night and was only for.some fleeting moments.
[Paras 13, 15] [273-B-C; 274-E-F]
Lal Singh and others v. State of U.f. (2003) 12 SCC
554; Su_bash v. State qf U.P. (1987) 3 SCC 331 : [1987]
2 SCR 962 ; Musheer Khan v. State of MP. (2010) 2
SCC 748 : [2010] 2 SCR 119 - relied on.
F
2. It is true that in certain cases this Court bad granted
benefit even to a non-appealing accused. In • Bijoy Singll case,
this Court observed that if on evaluation of case, a conclusion is
reached that no conviction of any accused was possible the benefit
of that decision must be extended to the similarly situated
G
co-accused even though be bad not challenged the order by way
of appeal. In the circumstances, the judgments of conviction
recorded by the courts below against the appellant is set aside
and be is acqnitted of all the charges leveled against him. The
benefit of this acquittal will also enure to the advantage of the
H non- appealing accused. [Paras 19, 20] [276-F-G; 277-B]
MD. SAJJAD @ RAJU @ SALIM v. STATE OF WEST BENGAL 267
Bijoy Singh v. State ~f Bihar (2002) 8 SCC 147; Suresh A
Chaudhary v. State of Bihar (2003) 4 SCC 128; Pawan
Kumar v. State of Haryana (2003) 11 SCC 241: [2003]
1 Suppl. SCR 710; Mohinder Singh and Anr. v. State of
Punjab and Others (2004) 12 SCC 311 - .relied on.
Case Law Reference B
(2003) 12 sec 554 relied on Para 14
(1987] 2 SCR 962 relied on . Para 16
[2010] 2 SCR 119 relied on Para 17
(2002) 8 sec 147 relied on Para 19 c
(2003) 4 sec 128 relied on Para 19
[2003] 1 Suppl. SCR 710 relied on Para 19
(2004) 12 sec 311 relied on Para 19
CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No. D
1953 of2010.
From the Judgment and Order dated 20.04.2010 of the High Court
at Calcutta in C.R.A. No. 53of1997.
Anand Dey, Ms. Rajeshri N. Reddy, A. N. Singh, Merusagar E
Samantaray, Advs. for the Appellant.
Mrinal Kanti Manda!, Parijat Sinha, Advs. for the Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J. I. This appeal by special leave
F
challenges the Judgment and Order dated 20.04.20 I 0 passed by the
High Court at Calcutta dismissing Criminal Appeal No.53 of 1997
preferred by the appellant herein and thereby affirming his conviction
and sentence under Section 302 read with Section 34 of the Indian Penal
Code (for short "!PC").
2. According to the prosecution, on 12.07 .1993 at about 6.00 AM G
PW6 Gautam Kheto found a dead body lying on the road in front of his
house with a handkerchieftied around the neck. He reported the incident
which was recorded in G.D. B'ook of Muchipara Police Station dated
12.07.1993, whereafter the police conducted inquest on the dead body
and sent it for autopsy. The dead body was having a tattoo on the right H
268 SUPREME COURT REPORTS [2017] 1 S.C.R.
A fore-ann with "Ramchandra Singh" written in Hindi. Post-mortem
examination was conducted by PW! 8 Dr. Rabindra Basu who opined
that the death was due to strangulation and the ligature mark and head
injuries were ante-mortem in nature.
3. At about 10.10 PM on the same day i.e. 12.07.1993 PW4 Jai
B Kishore Guin came to Muchipara Police Station and made a statement
that he had heard conversation between PW3 Kailash Srivastava and
PW16 Shyamlal Jadav which suggested that they had knowledge about
the incident. The investigating officer could then find both PW! 6 Kailash
Srivastava and PW6 Shyamlal Yadav on 13.07.1993. According to both
these witnesses they had seen an old man and four other persons alighting
c from a taxi near a sweetmeat shop in Akrur Dutta Lane and that the old
man, who was in drunken condition was taken away by the other persons.
According to these witnesses, the number of taxi was 3157. The
investigating officer then located the taxi driver, i.e. PW5 Laxminarayan
Dey, who stated that in the intervening night of 11.07.1993 and 12.07.1993
D five persons had boarded his taxi, four persons were younger in age,
while one was an old man. According to this witness there was some
altercation amongst them; that near a sweetmeat shop all of them
alighted and that when they came back only four of them had returned.
He thereafter dropped them at Rajabazar.
E 4. PW8 Saraswati Singh lodged a report on 16.07 .1993 that her
husband named Ramchandra Singh was missing since l l .07.1993. Two
days later she was called to the police station and shown certain
photographs but she could not identify the picture. After few days, she
again went to the police station with her nephew who could identify the
picture to be that of Ramchandra Singh, the husband of said PWS
F Saraswati Si~h.
5. On the strength of suspicion expressed by said PWS Saraswati
Singh the appellant Mohd. Sajjad and one Sk. Sahid @ Bablu were
arrested on 09 .09 .1993 and 11.09 .1993 respectively. Both these persons
were subjected to test identification parade on 06. I 0.1993 in which PWs
G 3, 5 and 16 identified them. After completion ofinvestigation charge-sheet
was filed against the appellant and said Sk. Sahid @ Bablu for the
offences punishable under Section 302 read with Section 34 IPC while
three persons, namely, Mohd. Sehzada, Sheikh Kaloo and Sheikh Panchu
were stated to have been absconding and declared as proclaimed
offenders.
H
MD. SAJJAD @ RAJU @ SALIM v. STATE OF WEST BENGAL 269
[UDAY UMESH LALIT, J.] .
1
6. The prosecution principally relied upon the testimony of PWs
3, 5, 8 and 16. PW3 Kailash Srivastava in his deposition stated as under:
"I live at No,8, Gopi Lane, Bowbazar, Calcutta. I am a plumber.
I know Haripada Das. He was my previous employer. I slet;p at
Premises No.8, Gopi Bose Lane, Calcutta. In the night of
11.07 .1993 an incident took place. That night there was pain in B
the stomach ofHaripada Das. Haripada Das lives In No,J, New
Bowbazar Lane, which is close to my residence. At abOut 1::U
12: 15 in .that night a man came from Haripada and awoke me
from sleep. I went to Haripada's place with that man. Haripada
told me that he should be immediately hospitalized for the pain in
a
hisstomach. Then myself went to search out taxi to take c
Haripada to Hospital. Snyamlal Yadav is a driver. Haripada Das
is a plumber contractor. We went towards Nirmal Ch. Street for
a taxi. We saw a taxi entering Akrur Dutta Lane from Nirmal
Ch. Street. We also entered Akroor Dutta Lane to catch the taxL
We saw the taxi to stop near sweetmeat shop in Akroor Dutta D
Lane. We saw about 5 persons getting down from the tal(i. We
approached the taxi driver to hire the taxi for taking the patient to
hospital. The taxi driver refused to take the patientto the hospitaL
The other persons who got dowri from the taxi also got annoyed
with us and told us to go away because they would take the taxi
for return journey. There was an old man in the taxi. And other E
4 persons scolded us by saying us to away. We found the old man
to be in drunken condition. The old man was taken out of the taxi,
the other persons present there. Then we came away from the
place after noting the number of that taxi. Thenumber of the taxi
·was 3157. We noted the number of that taxi because the driver F
refused io. take the patient to hospital with the idea that we should
lodge diarY against the driver. We saw those persons by the electric
light that was burning on the road. If I now see 'lllty of those
persons I may recognize those persons who got down from the
taxi that night."
G
PW 16 Shyamlal Yadav supported the version of PW3 Kaih1sh
Srivastava and deposed on similar lines. PW5 Laxminarayan Dey
deposed that on the night intervening 11.07 .1993 and 12.07 .1993 five
persons had boarded his taxi. He also deposed to the fact that while the
taxi had stopped near a sweetmeat shop two persons had come to hire
his taxi and that there was some altercation with those persons. H
270 \.. ·"S:l!JPREME COURT REPORTS (20 IJ] I 'S.C.R.
At. , ' · 7.. PW8 Saraswati .Singh in h.er examination stated as under:
'· . '"My husband's i1ic'otf1e bui of sdlaty was not sufficient to maintain
·our family. To make up the income to meet the family expenses,
.. 'I used to tilty ketosene oil from Scott Lane Market and sale it at
highef price at my residence. I used to earn profit of Rs.30/40
B · per:day:· In ·course of my business iii kerosene· oil, I picked
·, · acqu·aihtance· with a' boy "Who used to sell kerosene oil on that
market. His name is Raju which I gathered from him. Raju with
•other boys used to visit·our house iii connection with my business
• ·.·.in kerosene. I enqulredthe name of those persons accompanying
Raj1i' and learhtfrom him that one of them Was Sahajad, another
c. • ; · wasBilblu', the other one was Panchu and another was Ka loo. I
·used tci purchase kerosene oif'froril'Rajo as he used to sell me oil
·aH:heaper price thai1 ·others."
, '
. S.he further stat~<! tl).a( there were some disputes with Raju in
conne9tion .with the aforesiµd business. ~s regards disappearance of
D her husb;md and th~ _steps tak~n by her thereafter she stated as under:
-'~My ,husband.did not die in our home. In the night of 11"' July
_l 993, my husband·did-not return home, .Sometimes my husband
used to pass night outside home but he used to come back home
... regularly.' Next day I- went to·the police station to lodge a diary.
E ·.When I met a police officer there with dress who was going out
of P.S; I told him that my husband did not return home that night
and I wanted to make a diary, He asked me whether my husband
used to drink or not and'J told himtht my husband used to drink .
. He advised·to me to.search'irithe police station and in the hospital
F, .for my husband. Thereafter, ·I; went to Entally Police Station but
did not find my·husbarid_there. I then again went to Bowbazar
P:S. but I did not find my husband there. Then I wentto Amherest
.:street P.S .. andtherefrom.! went to Jorasanko P.S. but I did not
···· find my husband anywhere there. On the next day I went to my
relation's house. I went to Bhawanipore at the house of my
G, husband's sister. They.informed me that my husband di\! not go
, .. to their pli,ice and ~sked me 'to diarize the matt.er. Then I went to
· , \:hapdernagore there fn,im my husband's po-villagers used to live
qµi I did not find my hus\ll\Ild there also. i also went to Medical
. ,. i:;oll~ge Hospital, then to Compbel Hospital. I also searched in
H P:G..Ho.spital for. my husband ;but I. .did not find my husband
MD. SAJJAD@ RAJU @ SALIM v. STATE OF WEST BENGAL 271
[UDAY UMESH LAUT, J.]
. anywhere. On 16"'ofthat month my husband'.s sister son came A
· to our house and scolded me for not diarizing the matter. Then I
went to Muchipara P.S. and lodged a diary. After 2 days I was
called from the P.S., I was shown some photographs in the P.S.
As I could not distantly recognized the person from the photograph
.!told the police to call my husband's sister's son who could identify
B
that person from the picture as I have defect in eye-sight. My
husband's sister's son then came to us on 24•• of that month. I
went to the police station with him and he saw the photographs
and identified the picture of the photograph as that of his Mama
i.e. my husband. Then myself with Shib Kumar Singh, my
· husband's sister's son went to N.R.S. Hospital (Campbel). Then c
I identified the body by comparing with the photograph in that
hospital to be the dead body of my husband ......."
8. The prosecution also pressed into service confessional statement
given by Sk. Sahid @ Bablu under Section 164 Cr.P.C. which was
recorded by PW! 9, thethen Chief Metropolitan Magistrate, Calcutta on D
27.09.93. Insofar as test identification is concerned, the prosecution
relied upon the testimony of PWl7, Metropolitan Magistrate Calcutta
who testified that in the test identification parade PWS Laxmi Narayan
Dey and PW3 Kailash Srivastava could identify both the accused while
PW16 Shyamlal Yadav could identify only the appellant.
E
9. After considering the material on record the trial court found
that the prosecution was successful in bringing home its case against
both the accused. Though the evidence regarrl'c·:g confession was
discarded by the trial court, it found the evidence of three witnesses,
namely, PWs 3; 5 and 16 regarding identification of the accused to be
trustworthy. It observed as under: F
"It is true that the Test Identification Parade was held two months
after the incident of murder but the accused were absconded and
they were arrested on 9"' September and 11th September and the
Test Identification Parade was held on 61• October, 1993. It is
also true thatthe witnesses did not disclose or give any description G
of the accused in their statement before the police. But the fact
that the accused were identified by the witnesses in Court which
is substantive evidence and the proceedings of Test Identification
Parade are used to corroborative evidence. But, it should be
remembered here also that this is not only evidence on the
H
272 SUPREME COURT REPORTS (2017) I S.C.R.
A prosecution side as the prosecution case hinges on circumstantial
evidence and besides the evidence of identification of the accused
of three PWs which is merely a link of the chain of circumstances
while there are other names which have completed the chain. I
reiterate here that the names of the accused came out from the
statement of the widow who has given a vivid description of the
B
incident as to how they (accused) came colder to her family while
dealing in kerosene oil and the motive of the accused as ascribed
by her to commit the murder of her husband was to grab her
money and for committing some other heinous crimes of which
the PWlO has stated in her evidence. So, when the entire chain
c of circumstantial evidence is complete, it is futile to challenge any
link separately unless there is glaring instance of disbelief."
10. The ~ircumstances that the deceased was last seen in the
company of four persons including the appellant and sa.id Sk •. Sahid @
Bablu and that the appellant had disputes with PWS, wife ofthe deceased,
D weighed with the trial court in accepting the case of the prosecution.
The Trial Court did not find it safe to rely on the confessional statement
of Sk. Shahid@ Bablu. The Trial Court by its judgment dated 19.12.1996
convicted the appellant and said Sk. Sahid @ Bablu for the offences
punishable under Section 302 read with Section 34 !PC. After hearing
the parties, the trial court by its order dated 23.12.96 sentenced both the
E accused to suffer imprisonment for life and to pay fine of Rs.5,000/-
each, in default whereof to suffer rigorous imprisonment for six months.
11. It appears that Sk. Sahid @ Bablu did not preferany appeal
against his cenviction and sentence while the appellant carried the matter
by filing Criminal Appeal No.53 of 1997 challenging his conviction and
F sentence. The High Court affirmed the view taken by the trial court and
dismissed the said criminal appeal vide its judgment dated 20.04.2010
which is presently under appeal.
12. Appearing for the appellant, Mr. Anand Dey, learned Advocate
submitted that the entire case rests on the suspicion expressed by PW 8
G Saraswati S_in-1Jb arising from some disputes in connection with the business
and the identification by PW s 3, 5 and 16. lt was submitted that the Test
ldetTtification Parade was held more than two and half months after the
incident and in any case 25 days after the arrest of the accused. In his
submission, such Test Identification Parade was completely flawed. To
H
MD. SAJJAD @ RAJU @ SALIM v. STATE OF WEST BENGAL 273
[UDAY UMESH LALIT, J.]
a pointed question that ifthe appellant deserved acquittal whether such A
acquittal would enure to the advantage of the other accused who had
not even preferred an appeal, Mr. Mrinal Kanti Manda] learned Advocate
appearing for the Respondent-State submitted in the affirmative.
13. In the present case, apart from the identification by PW s 3, 5
and 16 and their version that they had seen the deceased in the company B
of four persons on the night intervening 11.7.1993 and 12.7.1993, there
is nothing which could point in the directt9n of the guilt of the appellant
and said Sk. Sahid @ Bablu. The confessional statement having been
discarded, there is no other material to lend any corroboration. The matter
thus stands and rests purely on the identification by PWs 3, 5 and 16
apart from the suspicion expressed by PW 8 Saraswati Singh ..
c
14. In Lal Singh and others Vs. State of U.P.1 , this court in
Paragraphs 28 and 43 dealt with the value or weightage to be attached
to Test Identification Parade and the effect of delay in holding such Test
Identification Parade. Said paragraphs are as under:-
D
"28. The next question is whether the prosecution has proved
beyond reasonable doubt that the appellants are the real culprits .
.The value to be attached to a test identification parade depends
on the facts and circumstances of each case and no hard-and-
fast rule can be laid down. The court has to examine the facts of
the case to find out whether there was sufficient opportunity for E
the witnesses to identify the accused. The court has also to i:ule
out the possibility of their having been shown to the witnesses
before holding a test identification parau~. Where there is an
inordinate delay in holding a test identification parade, the court
must adopt a cautious approach so as to prevent miscarriage of F
justice. In cases of inordin<ite delay, it may be that the witnesses
may forget the features of the accused put up for identification in
the test identification parade. This, however, is not an absolute
rule because it depends upon the facts of each case and the
opportunity which the witnesses had to notice the features of the
accused and the circumstances in which they had seen the accused G
committing the offence. Where the witness had only a fleeting
glimpse of the accused at the time of occurrence, delay in holding
a test identification parade has to be viewed seriously. Where,
however, the court is satisfied that the witnesses had ample
-----
1 2003 (12) sec 554 H
274 SUPREME COURT REPORTS [20 I 7] I S.C.R.
A opportunity of seeing the accused at the time of the commission
of the offence and there is no chance of mistaken identity, delay
in holding the test identification parade may not be held to be
fatal. It all depends upon the facts and circumstances of each
case.
B
43. It will thus be seen that the evidence of identification has to
be considered in the peculiar facts and circumstances of each
case. Though it is desirable to hold the test identification parade
at the earliest-possible opportunity, no hard-and-fast rule can be
laid down in this regard. If the delay is inordinate and there is
c evidence probabilising the possibility of the accused having been
shown to the witnesses, the court may not act on the basis of
such evidence. Moreover, cases where the conviction is based
not solely on the basis of identification in court, but on the basis of
other corroborative evidence, such as recovery of looted articles,
D stand on a different footing and the court has to consider the
evidence in its entirety."
15. In the case in hand, apart from the fact that there was delay
in holding the Test Identification Parade, one striking feature is that none
of the concerned prosecution witnesses had given any identification marks
E or disclosed special features or attributes of any of those four persons in
general and the accused in particular. Further, no incident or crime had
actually taken place in the presence of those prosecution witnesses nor
any special circumstances had occurred which would invite their attention
so as to register the features or special attributes of the concerned
accused. Their chance meeting, as alteged, was in the night and was
F only for some fleeting moments.
16. In Subas/1 Vs. State of U.P. 2, the aspects of delay as well as
absence of any special features for identification and the effect thereof
were considered by this court in paragraphs 8 and 9 as under:-
"8. Apart from this infirmity we further find that Shiv Shankar
G
was not put up for test identification parade promptly. The
identification parade has been held three weeks after his arrest
and no explanation has been offered for the delay in holding the
test identification parade. There is, therefore, room for doubt as
'1987 (2J sec 331
H
MD. SAJJAD @ RAJU @ SALIM v. STATE OF WEST BENGAL 275
[UDAY UMESH LAUT, J.]
to whether the delay in holding the identification parade was in A
order to enable the identifying witnesses to see him in the police
lock-up or in the jail premises and make a note of his features.
9. Over and above all these things there remains the fact that
a sufficiently long interval of time had elapsed between the date
of occurrence when the witnesses had seen Shiv Shankar for a B
few minutes and the date of the test identification parade. It is, no
doubt, true that all the three witnesses had correctly identified
Shiv Shankar at the identification parade but it has to be borne in
mind that nearly 4 months had elapsed during the interval. It is
relevant to mention here that neither in Exhibit Kha-1 nor in their
statements during investigation, the eyewitnesses have given any c
descriptive particulars of Shiv Shankar. While deposing 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 D
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 Ex. Kha-1 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 E
of Ram Babu. As pointed out in Muthuswami v. State of
Madras'where an identification parade was held about 2Y, months
after the occurrence it would not be safe to place reliance on the
identification of the accused by the eyewitnesses. ,In another case
Mohd. Abdul Hafeez v. State ofA.P.' It was held that where the F
witnesses had not given any description of the accused in the first
information report,.their identification of the accused atthe sessions
trial cannot be safely accepted by the court.for awarding conviction
to the accused. In the present case there was a long interval of
nearly 4 months before the test identification parade was heid
and it is difficult to accept that in spite of this interval of time the G
witnesses were able to have a clear image of the accused in their
minds and identify him correctly at the identification parade."
'AIR 1954 SC 4~1954 Cri LJ 236
'AIR 1983 SC 367='(1983) 1sec143
H
276 SUPREME COURT REPORTS [201 7] 1 S.C.R.
A 17. Similarly the issue of delay weighed with this court in Mus/teer
Kltan vs. State of M.P! in discarding the evidence regarding test
identification as under:
"8. Insofar as the identification of A-5 is concerned that has
taken place at a very delayed stage, namely, his identification took
B place on 24-1-2001 and the incident is of29- l l-2000, even· though
A-5 was arrested on 22-12-2000. There is no explanation why his
identification parade was held on 24-1-2001 which is after a gap
of over a month from the date of arrest and after about 3 months
from the date of the incident. No reliance ought to ~ave been
c placed by the courts below or the High Court on such delayed TI
parade for which there is no explanation by the prosecution."
18. In the instant case none of the witnesses had disclosed any
features for identification which would lend some corroboration. The
identification parade itself was held 25 days after the arrest. Their chance
D meeting was also in the night without there being any special occasion
forthem to notice the features of any of the accused which would then
register in their minds so as to enable them to identify them on a future
date. The chance meeting was also for few minutes. In the circumstances,
in our considered view such identification simplicitor cannot form the
basis or be taken as the fulcrum for the entire case of prosecution. The
E suspicion expressed by PW 8 Saraswati Singh was also not enough to
record the finding of guilt against the appellant. We therefore grant
benefit of doubt to the appellant and hold that the prosecution has failed
to establish its case against the appellant.
19. Mr. Mrinal Kanti Manda!, learned Advocate is right in
F submitting that in certain cases this Court had granted benefit even to a
non-appealing accused. In Bijoy Singlt v. State of Bi/tar', this court
observed that if on evaluation of the case, a conclusion is reached that
no conviction of any accused was possible the benefit of that decision
must be extended to the similarly situated co-accused even though he
G had not challenged the order by way of the appeal. To similar effect
was the dictum of this court in Sureslt Cltautlltary v. State of Biliar'
'2010 c2J sec 748
'2002 (SJ sec 147
'2003 (4) sec 128
H
MD. SAJJAD @ RAJU @ SALIM v. STATE OF WEST BENGAL 277
[UDAY UMESH LAUT, J.]
an.din Pawan Kumar. State of Haryana"and in Mo/tinder Singh and A
Anr. v. State of Punjab and Others. 9
20. In the circumstances we allow the present appeal, set aside
the judgments of conviction recorded by the courts below against the
appellant and acquit him ofall the charges leveled against him. We further
direct that the benefit of this acquittal and our decision will also enure to B
the advantage of the non- appealing accused namely Sk. Sahid@Bablu.
21. The appeal is thus allowed in afort:said terms. The appellant
was released on bail during the pendency of this appeal. His Bail bonds
sta!)d discharged.
Devika Gujral Appeal allowed. C
,·. ".t:'
• 2003 (11) sec 241
9
2004(12)SCC311
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