Ibarat Husain Kitabullah v. The State of Maharashtra

9.2. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra[2], in paragraph Nos.153 to 158, while enunciating the law relating to appreciation of evidence in a case based on circumstantial evidence, the Supreme Court has held as under:-

9.3. In the case of G. Prashwanath Vs. State of Karnataka[3], in paragraph No.11, while enunciating the law relating to appreciation of evidence in a case based on circumstantial evidence, the Supreme Court has held as under: “11. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.”

10. We have heard the learned Advocates appearing for the Appellant and learned APP at length and with their able assistance perused the entire evidence and record of the case.

11. In the present case it is seen that testimony of PW-4, injured witness is most relevant. PW-4 is the cleaner of the truck; he has given his eye witness account of the incident. He has deposed that, their truck was intercepted and stopped by the car from which four persons got down and they entered the truck cabin and forced Ranjit Singh (driver) to get down; thereafter they took Ranjit Singh in the nearby forest area and after 15 to 20 minutes returned back without him; that before his hands were tied and he was blindfolded, he saw the Appellant and others with his own eyes; that he specifically identified two of the accused in the Court and the Appellant in the T.I.P. From his cross-examination it is seen that his testimony is not impeached at all and the defence has not brought on record or proved any materiel that would create the slightest of doubt about the evidence given by him in respect of the occurrence of the incident; that he has identified the decomposed body of Ranjit Singh from his clothes, watch and shoes worn by him. By virtue of the memorandum panchanama (Exh.126), clothes and shoes of Ranjit Singh were recovered and seized by IO; his deposition proves that the four Accused took Ranjit Singh into the forest and thereafter Ranjit Singh was never seen alive. In so far as Appellant (Accused No.3) is concerned, he has been specifically identified before the court as well as during the identification parade. The most crucial circumstance is that Appellant has been identified in the test identification parade by PW-4. From perusal of his evidence it is seen that PW-4 had sufficient time to identify the Appellant immediately before the incident of murder of Ranjit Singh.

12. Learned Advocate for Appellant has relied upon the decision of Apex Court in the case of Umesh Chandra and Ors. Vs. State of Uttarakhand[4] to contend that though the Appellant has been identified by PW-4 in the TIP, the same by itself cannot form the substantive basis for conviction of Appellant. We have perused the said decision. In that case, prosecution had solely rested its case on the identification of Appellant in the TIP. The Supreme Court in paragraph Nos.[9] and 10 has held as under:- “9. A test identification parade under Section 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is only to ensure that the investigating agency prima facie was proceeding in the right direction where the accused may be unknown or there was a fleeting glance of the accused. Mere identification in the test identification parade therefore cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification.

10. But more important than that, the test identification parade being a part of the investigation, has to be proved by the prosecution as having been held in accordance with law. The onus lies on the prosecution to establish that the TIP was held in accordance with law. It is only after the prosecution prima facie establishes a valid TIP having been held, the question of considering any objection to the same arises. If the prosecution has failed to establish that a TIP was properly held by examining the witnesses to the same, there is nothing for the accused to disprove. In the present case, a Magistrate is stated to have conducted the TIP. The Magistrate has not been examined. No explanation is forthcoming why the Magistrate was not examined. The only evidence available is that of PW-4 the Station House Officer that during the investigation the TIP was held in the District Jail, Nainital and he identifies the proceedings in the Court. The identification of the proceedings is irrelevant as obviously he could not have been present during the TIP. The TIP, apart of the investigation, therefore cannot be said to have been proved much less that it was held in accordance with the law. Secondly there cannot be repeated TIPs till such time that the prosecution is successful in obtaining identification of the accused.”

13. Though it is argued in defence that the test identification parade was not conducted according to the jail manual in the present case, it is seen that PW-4 had specifically identified Appellant in the Court in his substantive evidence. In support of this proposition, we may usefully refer to the decision of the Supreme Court in the case of Ronny and ors. Vs. State of Maharashtra[5] wherein it is held that evidence of identification of accused at the trial by the prosecution witness even without the corroboration of the identification parade was rightly relied upon by the Trial Court as well as by the High Court. Paragraph No.24 of the decision is relevant and reads thus:- “24. The identification of appellants by PW-29, PW-34, PW-42 and PW-45 in court for the first time without prior identification by them in the test identification parade has been the subject matter of comment. Insofar as the identification of appellants by PW-42 and PW-45 are concerned, the trial court as well as the High Court had not accepted the same but the identification of appellants by PW-29 and PW-34 had been accepted by both the trial court as well as by the High Court and in our view rightly. We have already laid down above that the identification of the accused by a witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material. From the above mentioned aspect, the evidence of PW-42 and PW-45 has been rightly rejected by the trial court and the High Court as PW-42 is a rickshaw driver who had no opportunity to see closely the appellants whom he took to Rooman bungalow in the night. So also PW-45's identification of A-1 in court without his participation in the TIP has also no probative value inasmuch as he went to the shop of the witness as one of the customers and there was no specific reason why he should watch A-1 closely. But the same is not the position with PW-29 and PW-34. They were talking to the deceased Rohan Ohol at the time when the appellants came to rooman bungalow. Indeed A-1 wished the deceased Rohan who introduced A-1 as Nitin Anil Swargey. Thereafter, A-1 introduced A-2 and A-3 to Rohan Ohol and PW-29 and PW-34. They talked together for about 7-8 minutes and on Rohan Ohol's saying them to sit inside the house, they left their soiled shoes in the verandah and entered the house it can safely be presumed that had they not given the name and description of the appellants at the earliest when their statement was recorded by the police on 24th July, 1992, the defence in their searching and lengthy cross-examination would have brought on record omissions and contradictions with reference to their earlier statement given to the police. As such evidence of identification of the appellants at their trial by the said witnesses even without the corroboration of the identification parade, had been rightly relied upon by the trial court as well as by the High Court. We, 5 AIR 1998 SC 1251: (1998) 3 SCC 625 therefore, find no illegality in the judgment of the courts below in accepting their evidence of identification.”

14. Relying on the evidence led by prosecution in respect of identifying the Appellant to be one of the key person present and involved in the crime, it is further pertinent to note that discovery of dead body of Ranjit Singh is at the instance of the Appellant; that postmortem note (Exh.111) having been proved in evidence and admitted by defence and finding of the beheaded dead body of Ranjit Singh at the instance of Appellant leaves no room for doubt that he was killed in the incident; that Appellant alongwith other accused further attempted to murder Ajit Singh also stands proved since they (one of them) slit his neck and left him on the road to succumb to his injury.

12. On minute perusal of the evidence on record, it is conclusively established that Appellant was part of the group of Accused persons who actively participated in the murder of Ranjit Singh and attempted to murder PW-4 - Ajit Singh. Hence, we do not find any infirmity in the reasoned Judgment and Order passed by the learned Trial Court and do not find any reason to interfere with the same.

13. Criminal Appeal is accordingly dismissed.

14. Before parting with the Judgment, we would like to place on record appreciation for the efforts put in by Mr. Rohan Surve, learned Advocate appointed by the High Court Legal Services Committee, Mumbai for espousing the cause of Appellant; he was thoroughly prepared in the matter and rendered proper and able assistance to the Court. [ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.]