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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1953 OF 2010

Md. Sajjad @ Raju @ Salim ….. Appellant

Versus

State of West Bengal …. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. This appeal by special leave challenges the Judgment and Order dated

20.04.2010  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 “IPC”).  

2. According to the prosecution, on 12.07.1993 at about 6.00 AM PW6

Gautam Kheto found a dead body lying on the road in front of his house

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with a handkerchief tied around the neck.  He reported the incident which

was recorded in G.D. Book 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  fore-arm with

“Ramchandra  Singh”  written  in  Hindi.   Post-mortem  examination  was

conducted by PW18 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 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 PW16 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  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 five persons had boarded his

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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.

4. PW8 Saraswati Singh lodged a report on 16.07.1993 that her husband

named Ramchandra Singh was missing since 11.07.1993.  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 PW8 Saraswati Singh.

5. On the strength of suspicion expressed by said PW8 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  06.10.1993  in  which  PWs  3,  5  and  16

identified them.  After completion of investigation 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.  

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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 sleep 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 the stomach of Haripada Das.  Haripada Das lives  in  No.3,  New  Bowbazar  Lane,  which  is  close  to  my residence.  At about 12/ 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 hisstomach.  Then  myself went to search out a taxi to take Haripada to Hospital.  Shyamlal 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 taxi.  We saw the taxi to stop near sweetmeat shop in Akroor Dutta Lane.  We saw about 5 persons getting down from the taxi.  We approached the taxi driver to hire the taxi for taking the patient to hospital.  The taxi driver  refused to  take the patient  to  the hospital.   The other persons who got down 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 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.  The number of the taxi was 3157.   We noted the number of that taxi because the driver refused to 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 any of those persons I may recognize those persons who got down from the taxi that night.”

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PW16  Shyamlal  Yadav  supported  the  version  of  PW3  Kailash

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.

7.     PW8 Saraswati Singh in her examination stated as under:

“My  husband’s  income  out  of  salary  was  not  sufficient  to maintain our family.  To make up the income to meet the family expenses, I used to buy kerosene oil from Scott Lane Market and sale it at higher price at my residence.  I used to earn profit of Rs.30/40 per day.  In course of my business in kerosene oil, I picked acquaintance 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 in connection with my business in kerosene.  I enquired the name of those persons accompanying Raju and learnt from him that one of them was Sahajad,  another  was  Bablu,  the  other  one  was  Panchu  and another was Kaloo.  I used to purchase kerosene oil from Raju as he used to sell me oil at cheaper price than others.”  

She  further  stated  that  there  were  some  disputes  with  Raju  in

connection with the aforesaid business.   As regards disappearance of  her

husband and the steps taken by her thereafter she stated as under:

“My  husband did not die in our home.  In the night of 11 th July 1993,  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

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lodge a diary.  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 I told him tht my husband used to drink.  He advised to me to search in the police station and in the hospital for my husband.  Thereafter, I  went to Entally Police Station but did not find my husband there.  I then again went to Bowbazar P.S. but I did not find my husband there.  Then I went to Amherest Street P.S. and therefrom I 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  husband’s  sister.   They informed me that  my husband did not  go to  their  place  and asked me to diarize the matter.  Then I went to Chandernagore there from my husband’s co-villagers used to live but I did not find my husband there also.  I also went to Medical College Hospital,  then to Compbel Hospital.   I  also searched in P.G. Hospital  for  my  husband  but  I  did  not  find  my  husband anywhere.  On 16th of that month my husband’s sister son came 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 I told the police to call my husband’s sister’s son who could identify that person from the picture as I have defect in eye-sight.  My husband’s sister’s son then came to us on 24th 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 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

PW19,  the  then  Chief  Metropolitan  Magistrate,  Calcutta  on  27.09.93.

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Insofar as test identification is concerned, the prosecution relied upon the

testimony of PW17, Metropolitan Magistrate Calcutta who testified that in

the test identification parade PW5 Laxmi Narayan Dey and PW3 Kailash

Srivastava  could  identify  both  the  accused  while  PW16 Shyamlal  Yadav

could identify only the appellant.

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 regarding 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:

“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 9th September  and 11th September and the Test  Identification Parade was held on 6th October, 1993.  It is also true that the witnesses did not disclose or give any description 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 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 incident

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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 PW10 has stated in her evidence.  So, when the entire chain of circumstantial evidence is complete, it is futile to challenge any link separately unless there is glaring instance of disbelief.”  

10.    The circumstances that the deceased was last seen in the company of

four persons including the appellant and said Sk. Sahid @ Bablu and that the

appellant had disputes with PW8, wife of the deceased, 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 IPC. After hearing the parties,  the trial court by its

order dated 23.12.96 sentenced both the 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 prefer any appeal against

his conviction and sentence while the appellant carried the matter by filing

Criminal  Appeal  No.53 of  1997 challenging his  conviction and sentence.

The High Court affirmed the view taken by the trial court and dismissed the

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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

Saraswati Singh arising from some disputes in connection with the business

and the identification by PWs 3, 5 and 16. It was submitted that the Test

Identification  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 a

pointed  question  that  if  the  appellant  deserved  acquittal  whether  such

acquittal would enure to the advantage of the other accused who had not

even  preferred  an  appeal,  Mr.  Mrinal  Kanti  Mandal  learned  Advocate

appearing for the Respondent-State submitted in the affirmative.

13. In the present case, apart from the identification by PWs 3, 5 and 16

and their version that they had seen the 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 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

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purely on the identification by PWs 3, 5 and 16 apart from the suspicion

expressed by PW 8 Saraswati Singh.

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:-

“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 the witnesses to identify the accused. The court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. 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 justice. In cases of inordinate 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  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 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

1 2003 (12) SCC 554

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identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case.

……………………….. 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 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, 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  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 alleged, was in the night and was only for some fleeting

moments.

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16.    In Subash 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 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 to whether the delay in holding the identification parade was in 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  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 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 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 of Ram Babu. As

2 1987 (3) SCC 331

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pointed  out  in  Muthuswami v.  State  of  Madras3where  an identification  parade  was  held  about  2½  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  of  A.P.4 It  was  held  that where  the  witnesses  had  not  given  any  description  of  the accused in the first information report, their identification of the accused at the 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 held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.”

17.  Similarly  the  issue  of  delay  weighed  with  this  court  in  Musheer

Khan  vs.  State  of  M.P.5 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 place on 24-1-2001 and the incident is of  29-11-2000,  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 have been 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

3 AIR 1954 SC 4=1954 Cri LJ 236 4 AIR 1983 SC 367 =(1983) 1 SCC 143 5 2010 (2) SCC 748

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parade itself was held 25 days after the arrest. Their chance meeting was

also in the night without there being any special occasion for them 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 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 Mandal, learned Advocate is right in submitting that

in  certain  cases  this  Court  had  granted  benefit  even  to  a  non-appealing

accused. In  Bijoy Singh  v. State of Bihar6, 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 had not  challenged the order

by way of  the  appeal.  To similar  effect  was  the  dictum of  this  court  in

6 2002 (8) SCC 147

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Suresh Chaudhary  v. State  of  Bihar7  and in  Pawan Kumar  . State  of

Haryana8and in Mohinder Singh and 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 of all the charges leveled against him. We further direct that

the benefit of this acquittal and our decision will also enure to the advantage

of the non- appealing accused namely Sk. Sahid @Bablu.  

21. The appeal is thus allowed in aforesaid terms. The appellant was released

on bail during the pendency of this appeal. His Bail bonds stand discharged.  

        ..……..………………..J. (Pinaki Chandra Ghose)

………………………J. (Uday Umesh Lalit)

New Delhi, January 6, 2017  

7 2003 (4) SCC 128 8 2003 (11) SCC 241 9 2004 (12) SCC 311