Summary
Two men on a scooter in Punjab were waylaid in 2001 by three strangers; chilli powder was thrown in the driver's eyes, the pillion rider was shot dead in the chest and the scooter taken. The complainant's FIR described the assailants only as two clean-shaven youths and a turbaned Sikh aged about 30, without saying he could identify them. No test identification parade was held; he identified the appellants for the first time in court four years later, adding that he had seen them in the city once or twice. Rs 1 lakh was recovered from each accused, though the trial court itself disbelieved the claim that Rs 5 lakh had been in the scooter. The trial court convicted them under Sections 302/34 and 392 IPC and the High Court affirmed. The Supreme Court acquitted them.
Issues
- Whether a conviction for murder and robbery can rest on the complainant's identification of unknown assailants for the first time in court, without a test identification parade, when his FIR gave no description beyond age and did not claim he could identify them.
- Whether recovery of Rs 1 lakh from each accused is incriminating when the prosecution failed to prove that the victims were carrying Rs 5 lakh or that the recovered cash was the looted money.
Provisions considered
- Section 9 (test identification parade as corroborative evidence), Indian Evidence Act, 1872A TIP is not substantive evidence and its absence does not by itself make dock identification inadmissible, but identification of strangers for the first time at trial is inherently weak and prudence requires corroboration by earlier identification unless the witness is of sterling quality; here the FIR's bare description and the witness's admissions made a TIP necessary, and without it the dock identification was unsafe. (¶¶ 4.3, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7)
- Sections 302 read with 34, 392 and 397, Indian Penal Code, 1860The convictions for murder in the course of robbery and for robbery rested solely on the dock identification and the cash recoveries, both found unreliable; they were set aside and the accused acquitted. (¶¶ 2, 6, 7, 8)
Held
- Although an FIR is not an encyclopaedia, where no TIP has been held the first version in the FIR assumes importance in testing whether the witness disclosed any identity or description from which he could later recognise the accused. The FIR mentioned only two clean-shaven young men and a turbaned Sikh of about 30 and did not say the complainant had seen them before or could identify them; in cross-examination he admitted the accused were not known to him and that he had given only their ages, while improving his story in court by claiming to have seen them in the city once or twice. (¶¶ 6.2, 6.3, 6.4)
- In Malkhansingh the prosecutrix had ample opportunity in daylight to observe assailants who threatened her before and after the crime, and in Md. Kalam the Court was impressed by the particular witness; the weight of dock identification without a TIP is for the court of fact, and on these facts it was neither safe nor prudent to convict on it. (¶¶ 6.5, 6.6, 6.7)
- The trial court itself found that the prosecution failed to prove that the complainant and the deceased carried Rs 5 lakh in the scooter; to connect the accused with the loot the prosecution had to prove both that the amount was carried and that the cash recovered was that very amount, so recovery of some cash could not sustain the conviction. (¶ 6.1)
Result
Appeals allowed; the judgments of the trial court and the Punjab and Haryana High Court (01.04.2011) convicting the appellants under Sections 302/34 and 392 IPC set aside and the appellants acquitted and ordered to be released forthwith unless required in another case.