{"id":132254,"date":"2003-02-13T00:00:00","date_gmt":"2003-02-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anil-kumar-vs-state-of-u-p-on-13-february-2003"},"modified":"2016-03-10T05:46:23","modified_gmt":"2016-03-10T00:16:23","slug":"anil-kumar-vs-state-of-u-p-on-13-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anil-kumar-vs-state-of-u-p-on-13-february-2003","title":{"rendered":"Anil Kumar vs State Of U. P on 13 February, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Anil Kumar vs State Of U. P on 13 February, 2003<\/div>\n<div class=\"doc_author\">Author: S N Variava<\/div>\n<div class=\"doc_bench\">Bench: S. N. Variava, B. N. Agrawal<\/div>\n<pre>           CASE NO.:\nAppeal (crl.)  139 of 1996\n\nPETITIONER:\nAnil Kumar\n\nRESPONDENT:\nState of U. P.\n\nDATE OF JUDGMENT: 13\/02\/2003\n\nBENCH:\nS. N. VARIAVA &amp; B. N. AGRAWAL\n\nJUDGMENT:\n<\/pre>\n<p>J U D G M E N T<\/p>\n<p>S. N. VARIAVA, J.\n<\/p>\n<p>\tThis Appeal is against a Judgment dated 22nd November, 1994.<br \/>\n\tBriefly stated the facts are as follows:\n<\/p>\n<p>On 11th June, 1978 one Manoj Kumar (P.W.2) was returning to his<br \/>\nhome.  At that time he was way laid by Chaman (the Appellant in<br \/>\nCriminal Appeal Nos. 934-936 of 1995, which Appeals have been<br \/>\ndismissed today by a separate Judgment) and four other persons way<br \/>\nlaid him and assaulted him with iron bars, knives and Dandas.\tOn<br \/>\nhearing his cries his younger brother Sanjay rushed forward to protect<br \/>\nhim and embraced Manoj in order to save his life.  The younger<br \/>\nbrother was only 10 years old at that time.  Even on seeing that a 10<br \/>\nyears old boy has embraced Manoj the assailants did not stop but<br \/>\ncontinued to inflict knife and Danda blows even on the young boy of 10<br \/>\nyears.\tOn hearing the cries of Manoj and Sanjay, their father Shri<br \/>\nSidheswar Dwivedi, mother Smt. Kaushalya Dwivedi and sister<br \/>\nSangeeta rushed to save them.\tThey were also assaulted.  Thereafter<br \/>\nother people of the public came there and the assailants ran away.<br \/>\n\tA complaint was lodged by the father Shri Sidheswar Dwivedi.<br \/>\nIn the first information report he named Chaman as having first<br \/>\nattacked along with certain unknown persons.  He thereafter named<br \/>\ncertain other persons who were supposed to have come there and<br \/>\nhelped the assailants after he reached the spot.   On the basis of this<br \/>\ncomplaint an investigation was made by the police.  Eight accused<br \/>\nwere put up for trial.\tAs Sanjay had died the charges were under<br \/>\nSections 302, 323, 325 read with 149 and Section 148 of the Indian<br \/>\nPenal Code.\n<\/p>\n<p>\tThe prosecution examined a number of witnesses of whom<br \/>\nP.W.1, was the father, P.W.2, was Manoj and P.W.4, was the mother.<br \/>\nThey were eye-witnesses who narrated the incident and identified<br \/>\nChaman and  the Appellant.  In spite of detailed cross examination<br \/>\ntheir testimony could not be shaken.  Their evidence was corroborated<br \/>\nby the evidence of the Doctor who disclosed that Sanjay had died a<br \/>\nhomicidal death and that Manoj, his father and the mother had also<br \/>\nreceived injuries.\n<\/p>\n<p>After trial six persons were acquitted by the trial Court.<br \/>\nChaman and the Appellant were convicted by the trial Court under<br \/>\nSections 325 read with 149 I.P.C. for which a sentence of 4 years was<br \/>\nimposed.  They were also convicted under Sections 324 read with 149<br \/>\nI.P.C. and a sentence of 2 years was imposed.  For offence under<br \/>\nSections 323 read with 149 I.P.C. a sentence of 6 months was<br \/>\nimposed.  For offence under Section 148 I.P.C. a sentence of 1 year<br \/>\nwas imposed.  All the sentences were directed to run concurrently.<br \/>\n\tThe Appellant (as well as Chaman) filed two criminal Appeals in<br \/>\nthe High Court.\t The State also preferred an Appeal against the<br \/>\nacquittal under Sections 302 read with 149 and against the acquittal of<br \/>\nother 6 persons.   The High Court heard all these Appeals together and<br \/>\ndisposed off the same by the impugned judgment.\t The High Court has<br \/>\nconfirmed the finding of the trial Court that the prosecution had<br \/>\nproved its case beyond a reasonable doubt as against Chaman and the<br \/>\nAppellant.  It has also confirmed the conviction under Sections 325<br \/>\nread with 149, 324 read with 149, 323 read with 149 and 148 of the<br \/>\nIndian Penal Code.  But the High Court has concluded, and in our view<br \/>\nrightly, that an offence was made out under Sections 304 Part II read<br \/>\nwith 149 I.P.C. and sentenced both Chaman and the Appellant to 5<br \/>\nyears rigorous imprisonment.   Hence this Appeal.<br \/>\n\tMr. Tripurari Ray has submitted that both the trial Court and the<br \/>\nHigh Court have erred in convicting the Appellant.  He submitted that<br \/>\nin the FIR the Appellant has not been named.  He submitted that the<br \/>\nscribe of the FIR\twas one Mr. Umesh Kumar Dixit who was the<br \/>\nnephew of the complainant.  He submitted that Umesh Kumar Dixit<br \/>\nwas a class-mate of the Appellant and he knew the Appellant.  He<br \/>\nsubmitted that as Umesh Kumar Dixit knew the Appellant he would<br \/>\nhave named the Appellant in the written complaint if the Appellant had<br \/>\nactually been present at that time.  He submitted that the prosecution<br \/>\ndid not examine Umesh Kumar Dixit and therefore the Appellant has<br \/>\nbeen gravely prejudiced.  He submitted that an adverse inference<br \/>\nmust be drawn against the prosecution that if Umesh Kumar Dixit had<br \/>\nbeen examined the Appellant would have been able to establish that<br \/>\nhe was not present at the time of the incident.\t We are unable to<br \/>\naccept the submission.\tUmesh Kumar Dixit was not an eye witness.<br \/>\nHe did not see the incident and did not know who were present or who<br \/>\nthe assailants were.  He only scribed what was told to him by P.W.1.<br \/>\nIt has come in the evidence of P.Ws. 1, 2 and 4 that they did not know<br \/>\nthe Appellant prior to the incident.  They therefore could not have<br \/>\nnamed him in the FIR.\tAs Umesh Kumar Dixit was not an eye-witness<br \/>\nto the incident there was no necessity to examine him.\tUmesh Kumar<br \/>\nDixit could have showed no light.  He could not have stated whether<br \/>\nthe Appellant was present or not.  Therefore no prejudice has been<br \/>\ncaused to the Appellant.\n<\/p>\n<p>\tIt was next pointed out that the Appellant was arrested on 12th<br \/>\nJune, 1978.  It was submitted that on the same day the Appellant was<br \/>\ntaken to the hospital.\tIt was submitted that while taking the Appellant<br \/>\nto the hospital no precautions were taken.  It was submitted that his<br \/>\nface was not covered. It was submitted that for this reason itself the<br \/>\ntrial gets vitiated.   In support of this submission reliance was placed<br \/>\nupon the case of S. V. Madan v. State of Mysore reported in (1980) 1<br \/>\nSCC 479 wherein this Court found that there was no evidence adduced<br \/>\nby the prosecution to show that precautions were taken to ensure that<br \/>\nthe witnesses did not see the accused and\/or that the witnesses had<br \/>\nno opportunity to see the accused before the identification parade.  On<br \/>\nthis ground it was held that reliance could not be placed on an<br \/>\nidentification parade.\t Thus this case was based on the fact that there<br \/>\nwas no evidence that precautions were taken.  We however note that<br \/>\nP.Ws. 8 and 9, i.e. the investigating officer and the officer in-charge of<br \/>\nthe police station, have deposed that they took the Appellant in a<br \/>\ncovered condition and that whilst the Appellant was in jail he was not<br \/>\nshown to anybody.  In cross-examination their testimony, that they<br \/>\nhad taken these precautions, could not be shaken.  Thus in this case<br \/>\nthere is clear evidence that precautions were taken in order to ensure<br \/>\nthat the witnesses did not have the chance to see the Appellant.<br \/>\n\tIt was next submitted that even though the Appellant was<br \/>\narrested on 12th June, 1978 the identification parade was held only on<br \/>\n27th July, 1978. It was submitted that there was a delay of about 47<br \/>\ndays in holding the test identification parade.\t It was submitted that<br \/>\nthe test identification parade after such a delay cannot be relied upon<br \/>\nand on this ground also the Appellant is entitled to be acquitted.  In<br \/>\nsupport of this submission reliance has been placed on the case of<br \/>\nSoni vs. State of U. P. reported in (1982) 3 SCC 368.  The entire<br \/>\nJudgment consists of one paragraph which reads as follows:<br \/>\n\t&#8220;After hearing counsel on either side we are satisfied<br \/>\nthat the conviction of the appellant for the offence of<br \/>\ndacoity is difficult to sustain.  The conviction rests purely<br \/>\nupon his identification by five witnesses, Smt. Koori,<br \/>\nPritam Singh, Kewal, Chaitoo and Sinru, but it cannot be<br \/>\nforgotten that the identification parade itself was held after<br \/>\na lapse of 42 days from the date of the arrest of the<br \/>\nappellant.  This delay in holding the identification parade<br \/>\nthrows a doubt on the genuineness thereof apart from the<br \/>\nfact that it is difficult that after lapse of such a long time<br \/>\nthe witnesses would be remembering the facial<br \/>\nexpressions of the appellant.\tIf this evidence cannot be<br \/>\nrelied upon there is no other evidence which can sustain<br \/>\nthe conviction of the appellant.   We therefore allow the<br \/>\nappeal and acquit the appellant.&#8221;\n<\/p>\n<p>It is to be seen that apart from stating that  delay throws a doubt on<br \/>\nthe genuineness of the identification parade and observing that after<br \/>\nlapse of such a long time it would be difficult for the witnesses to<br \/>\nremember the facial expressions,  no other reasoning is given why<br \/>\nsuch a small delay would be fatal.\n<\/p>\n<p>\tReliance was also placed upon the case of Hari Nath vs. State of<br \/>\nU. P. reported in (988) 1 SCC 14.  In this case the importance of test<br \/>\nidentification parade was being considered.  It was held that the test<br \/>\nidentification parade only has corroborative value and that a test<br \/>\nidentification parade should be held with reasonable promptitude after<br \/>\nthe occurrence.\n<\/p>\n<p>\tBased upon the aforesaid authorities it was submitted that the<br \/>\nlaw, as laid down by this Court is that if there is delay in holding the<br \/>\ntest identification parade then it is difficult to believe that the<br \/>\nwitnesses would remember the facial expressions of the accused.\t It<br \/>\nwas submitted that the law is that such identification becomes<br \/>\nsuspicious and the accused must be given the benefit of doubt.<br \/>\n\tWe are unable to accept these submissions.  In the case of <a href=\"\/doc\/1588841\/\">Brij<br \/>\nMohan v. State of Rajasthan<\/a> reported in AIR (1994) SC 739 the test<br \/>\nidentification parade was held after 3 months.\tThe argument was that<br \/>\nit was not possible for the witnesses to remember, after a lapse of<br \/>\nsuch time, the facial expressions of the accused.  It was held that<br \/>\ngenerally with lapse of time memory of witnesses would get dimmer<br \/>\nand therefore the earlier the test identification parade is held it<br \/>\ninspires more faith.   It is held that no time limit could be fixed for<br \/>\nholding a test identification parade. It is held that sometimes the crime<br \/>\nitself is such that it would create a deep impression on the minds of<br \/>\nthe witnesses who had an occasion to see the culprits.\tIt was held<br \/>\nthat this impression would include the facial impression of the culprits.<br \/>\nIt was held that such a deep impression would not be erased within a<br \/>\nperiod of 3 months.\n<\/p>\n<p>\tIn the case of Daya Singh vs. State of Haryana reported in AIR<br \/>\n2001 SC 1188 the test identification parade was held after a period of<br \/>\nalmost 8 years inasmuch as the accused could not be arrested for a<br \/>\nperiod of 7-1\/2 years and after the arrest the test identification parade<br \/>\nwas held after a period of 6 months.  The cases of Hari Nath  (supra)<br \/>\nas well as Soni (supra) were relied upon on behalf of the accused in<br \/>\nthat case.  Both these cases were considered by this Court. The<br \/>\ninjured witnesses had lost their son and daughter-in-law in the<br \/>\nincident.  It was pointed out that the purpose of test identification<br \/>\nparade is to have the corroboration to the evidence of the eye<br \/>\nwitnesses in the form of earlier identification.  It was held that the<br \/>\nsubstantive evidence is the evidence given by the witness in the Court.<br \/>\nIt was held that if that evidence is found to be reliable then the<br \/>\nabsence of corroboration by the test identification is not material.  It<br \/>\nwas further held that the fact that the injured witnesses had lost their<br \/>\nson and daughter-in-law showed that there were reasons for an<br \/>\nenduring impression of the identity on the mind and memory of the<br \/>\nwitnesses.\tReliance was also placed upon the following paragraph in<br \/>\nthe case of <a href=\"\/doc\/1037935\/\">State of Maharashtra v. Suresh<\/a> reported in (2000) 1 SCC<br \/>\n471:\n<\/p>\n<p>\t&#8220;We remind ourselves that identification parades are<br \/>\nnot primarily meant for the Court.  They are meant for<br \/>\ninvestigation purposes.\t The object of conducting a test<br \/>\nidentification parade is twofold.  First is to enable the<br \/>\nwitnesses to satisfy themselves that he prisoner whom<br \/>\nthey suspect is really the one who was seen by them in<br \/>\nconnection with the commission of the crime.   Second is<br \/>\nto satisfy the investigating authorities that the suspect is<br \/>\nthe real person whom the witnesses had seen in<br \/>\nconnection with the said occurrence.&#8221;\n<\/p>\n<p>This Court therefore concurred with the High Court that the categorical<br \/>\nevidence of the witnesses received corroboration from the test<br \/>\nidentification parade even though it was held late.  The conviction of<br \/>\nthe Appellants in that case was upheld.\n<\/p>\n<p>\tIn the present case also Manoj was attacked by Chaman as well<br \/>\nas the Appellant.  He had a clear look at his assailants.  Thereafter his<br \/>\nyounger brother came to save him and in that process got killed.<br \/>\nManoj also received serious injuries.  These are circumstances which<br \/>\nwould impress upon the mind of Manoj the facial expressions of the<br \/>\nassailants.  This impression would not diminish or disappear within a<br \/>\nperiod of 47 days.  Similar is the case of the father and the mother of<br \/>\nManoj.\t They have seen the assailants attacking their sons and one of<br \/>\nthe sons getting killed.  In their memory also the facial expressions of<br \/>\nthe assailants would get embossed.   A mere lapse of 47 days is not<br \/>\ngoing to erase the facial expressions from their memory.<br \/>\n\tAll these witnesses have identified the Appellant. We are in<br \/>\nagreement with the trial Court as well as the Appellate Court that their<br \/>\nevidence is believable.\t  In this view of the matter we see no infirmity<br \/>\nin the impugned Judgment.  We see no reason to interfere.  The<br \/>\nAppeal stands dismissed.  The bail bond stands cancelled.  The<br \/>\nAppellant should be taken into custody forthwith to serve out the<br \/>\nremaining period of sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Anil Kumar vs State Of U. P on 13 February, 2003 Author: S N Variava Bench: S. N. Variava, B. N. Agrawal CASE NO.: Appeal (crl.) 139 of 1996 PETITIONER: Anil Kumar RESPONDENT: State of U. P. DATE OF JUDGMENT: 13\/02\/2003 BENCH: S. N. VARIAVA &amp; B. N. AGRAWAL JUDGMENT: J [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-132254","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Anil Kumar vs State Of U. 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