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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 16

th

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 24

th

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 9

th

September and 11

th

September and the Test Identification Parade was held on 6

th

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

Page 11 11

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 Madras

3

where 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 Bihar

6

, 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 Bihar

7

and in Pawan Kumar . State of

Haryana

8

and 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