Vivek Agarwal, J.
The appellant has filed this Criminal Appeal under the provisions of Section 374 of the Criminal Procedure Code being aggrieved by judgment dated
26.12.2008 passed in Sessions Case No.40/2007 by the Court of Special Judge (Dacoity Affected Area), Gwalior, whereby the appellant has been
convicted under the provisions of Section 364-A of the Indian Penal Code (for short 'IPC') with life imprisonment and fine of Rs.1,000/-; in default of
payment of fine, further rigorous imprisonment of 10 months.
2. The prosecution case in short is that in the intervening night of 30-31.12.2003, appellant Mahendra Adiwasi alongwith his four accomplices had
abducted Chandan Singh, Papendra Singh, Raju, Kalla Dubey, Bhagat Singh, Maan Singh, Maniram and Harcharan from village Amraul and Mahuch
falling under Police Station Antri, District Gwalior. It is alleged that ransom was demanded for their release and the abductees were threatened to be
killed. Therefore, the charges were framed under the provisions of Sections 364-A and 302 of IPC and Section 13 of the Madhya Pradesh Dakaity
Avam Vyapaharan Prabhavit Kshetra Ahdiniyam, 1981 (for short 'MPDVPK Adhiniyam, 1981') looking to the fact that the area from where
abduction had taken place for ransom is a notified area under the provisions of MPDVPK Adhiniyam, 1981.
3. As per the prosecution story, the abductees were carrying out their agricultural operations when they were abducted and during investigation, it was
revealed that this incident was given effect to by prized Gopal son of Banshilal Gadaria, Pratap son of Banshilal Gadaria, Mahendra Adiwasi, Hari
Jatav, Ramdua and two other companions. It is also an admitted position that on 12.01.2004, in an encounter, abductees were released and in such
encounter, dacoit Ramdua was killed by the Police party, whereas abductee Maan Singh was also killed.
4. Chargesheet was filed in absence of the accused under the provisions of Sections 364-A, 365, 125-B of IPC read with Sections 11/13 of MPDVPK
Adhiniyam, 1981 and Sections 25 and 27 of the Arms Act. Appellant was formally arrested with permission of the Court after he was arrested in
some other crime.
5. Learned Special Judge framed the following issues, namely -
1) Whether accused Mahendra Singh in the intervening night of 30-31.12.2003 alongwith four other co-accused had abducted Chandan Singh,
Papendra Singh, Raju, Kalla Dubey, Bhagat Singh, Maan Singh, Maniram and Harcharan and demanded ransom for their release from their family
members; otherwise they threatened them with their lives;
2) Whether the appellant had killed Maan Singh for demand of ransom on the aforesaid date, place and time alongwith the co-accused;
3) Whether the accused on the said date, place and time committed the aforesaid acts so as to constitute crime under the provisions of MPDVPK
Adhiniyam, 1981; and
4) Whether any offence is proved against the accused and, if yes, then what punishment?
6. The appellant abjured his guilt and pleaded his innocence and prayed for quashing of the charges.
7. It is the contention of the learned counsel for the appellant that there is no involvement of the appellant in the crime and in fact, FIR (Ex.P/1) has
been lodged on 31.12.2003 by one of the abductees Chandan Singh son of Raghunath Singh Rawat (PW1), whereas the author of the FIR has
categorically mentioned in para 2 of his examination-in-chief that because of dark night, he could not identify any of the accused persons and cannot
say whether the accused present in the Court was part of the team which abducted them for ransom or not. He himself said that he has a diminished
vision. However, he admitted recording of FIR (Ex.P/1) and also preparation of spot map from where abduction had taken place. In cross-
examination, he admitted that since he was not already knowing the dacoits and if their names were wrongly taken, then he cannot say anything.
8. It is submitted that there was no Test Identification Parade conducted and PW2 Papendra Rawat had for the first time identified the appellant in the
Court. It is submitted that demand of ransom has not been proved nor any ransom was paid. Abductees were released in an encounter. It is further
submitted that for want of ransom, offence under Section 364-A of IPC is not made out. It is also submitted that the allegation of killing Maan Singh is
not on the appellant, therefore, the appellant has been wrongly convicted.
9. It is also pointed out that both PW2 Papendra Rawat and PW3 Raju Kushwah have admitted that they are not aware as to bullet of which of the
accused had killed Maan Singh and, therefore, the appellant has been discharged from the charge of murder of Maan Singh.
10. Learned counsel for the appellant has placed reliance on the judgment of the Madhya Pradesh High Court in the case of Babloo v. State of MP as
reported in ILR (2009) MP 1780, wherein it has been held that if there is delay in conducting TIP and there is no material to show that the accused
were not kept baparda, then identification by the witness is doubtful because there is no evidence to indicate that the accused was kept baparda.
11. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Dana Yadav alias Dahu & Others v. State of
Bihar as reported in AIR 2002 SC 3325, wherein it has been held that if identification of the accused is made for the first time in Court by witnesses
more than two years from the date of incident, it cannot be relied upon specially when identification in Court is not corroborated either by previous
identification in TIP or any other evidence. Conviction of the accused cannot be based upon it. However, it has been held that if the accused were
already known to the complainant or the witnesses, then conducting of TIP will be waste of money and resources.
12. Learned counsel for the appellant has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ravi alias Ravichandran
v. State Rep. by Inspector of Police as reported in AIR 2007 SC 1729, wherein it has been held that if the FIR is against unknown persons, then TIP
should be held as early as possible. Conviction based on vague identification is liable to be set aside.
13. Reliance has also been placed on the judgment of this High Court in the case of Mohar Singh & Ors. v. State of M.P. as reported in 2011 Cr.L.R.
(MP) 185, wherein it has been held that if the accused persons were not already known to the abductees, then the dock identification for the first time
in the Court is not a reliable piece of evidence.
14. Placing reliance on such judgments, it is submitted that the author of the FIR Chandan Singh (PW1) has admitted that he had given the names of
the accused persons on the basis of the names which they were being taken by the team members. He has admitted that he had not identified any of
the accused persons because of incident taking place in dark and also because of his diminished vision. It is pointed out that PW2 Papendra Rawat in
his cross-examination in para 5 has admitted that at the time of abduction, faces of the accused were not visible. They had not personally given their
names, but were calling each other. In para 6, he has admitted that prior to abduction, he was not knowing any of the accused either by name or their
face. He also admitted that TIP was never conducted. He also admitted that he does not remember which of the accused was wielding which of the
weapon.
15. Similarly, PW3 Raju Kushwah has contradicted PW2 Papendra Rawat and has categorically mentioned that all the accused persons were having
mustaches and beards, however, he has supported the fact that he too was not knowing any of the accused persons prior to abduction. PW3 Raju
Kushwah has admitted that at the time of encounter, their hands were tied with chain. However, he denied that chain was opened by the Police.
16. PW4 Banti Kushwah too has identified the appellant in the Court. He admitted in cross-examination in para 6 that there are several persons in the
name of Mahendra. He admitted that there may be some other persons in the name of Mahendra other than the accused who was present in the
Court. He further affirms in para 7 that names of the abductees were given by the Police.
17. It is also submitted that PW6 S.S. Chauhan, Retired Sub-Inspector has admitted that the complainant had never informed that as to what amount
of ransom is to be sent and to whom. He also admitted that there is no mention of the fact that which of the accused had asked for the ransom. It is
also admitted that which of the accused had caught hold which of the abductee, is not mentioned in the FIR. He has also admitted that Nattha had not
disclosed the identity of any of the accused and had only given their names. He further admitted that Nattha had given the names of the accused on
the basis of the information received from Chandan Rawat (PW1).
18. In view of such facts, it is submitted that since PW4 Banti Kushwah has admitted that the names of the abductors have been given by the Police,
it is a bogus case prepared against the appellant and, therefore, his appeal deserves to be allowed and the impugned judgment deserves to be set aside.
19. The only issue involved in this appeal is whether on the basis of dock identification in the Court after more than four years of the incident and there
being no material to corroborate the identification, can conviction be upheld.
20. Learned special Judge has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Malkhan Singh & Others v. State of MP
as reported in (2003) 5 SCC 746=AIR 2003 SC 2669, wherein it has been held that in a case of rape if the prosecutrix has identified the accused in
the Court, then her evidence can be treated to be reliable and conviction can be based on it even if no TIP is held. In para 16, it has been held that it is
well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the
identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not
preceded by a test identification parade, is a matter for the Courts of fact to examine. However, in the present case, the Special Judge has not
examined the aspect of delay inasmuch as PW2 Papendra Rawat and PW3 Raju Kushwah had given their statements before the Court on
04.03.2008, whereas the incident had taken place in December 2003. Therefore, their statements were recorded almost after more than four years
and, therefore, the Court was required to dwell into the aspect of span of human memory to identify a person after a lapse of more than four years
and what will be the impact of such identification in the light of the law laid down by the Hon'ble Supreme court in the case of Dana Yadav alias Dahu
& Others (supra). This aspect has finer ramifications in view of the evidence of PW4 Banti Kushwah, who has admitted that the names of the dacoits
were given to him by the Police.
21. In view of the provisions contained in Section 9 of the Evidence act, the statements of the witnesses PW1 Chandan Singh Rawat, PW2 Papendra
Rawat, PW3 Raju Kushwah and PW4 Banti Kushwah contain special impacts when they admitted that at the time of abduction, they had not
identified anybody inasmuch as it was dark. PW2 Papendra Rawat and PW3 Raju Kushwah submit that they had identified the accused in the Court
as they had stayed with them for 12-13 days. However, there is contradiction in the statement given by PW2 Papendra Rawat, who says that except
for one accused Pratap, none of them was having beard and mustaches, whereas PW3 Raju Kushwah admitted that all the accused persons were
having beard and mustaches coupled with the fact that PW4 Banti Kushwah has admitted of Police giving the names of the accused and their
statements were recorded in the Court after a lapse of more than four years of the incident of their release. Sufficient doubt is created as to the
authenticity of the identification in the Court. It is also important to point out that in TIP, persons of similar age and physical description are mixed-up
to understand the capability of a witness to identify from amongst several persons made to stand in a queue; whereas, in the present case, the trial
was conducted against an isolated person as other accused persons were absconding. It has also come on record that he was arrested in another case
and with the permission of the Court arrested in the present case, therefore, the Police had sufficient opportunity to introduce the accused. No reason
has been assigned to not to conduct TIP specially when the prosecution witnesses have admitted that they were not knowing the accused before
hand.
22. In the case of Suresh Chandra Bahri v. State of Bihar as reported in AIR 1994 SC 2420, it has been held that it is well settled law that the
statements of the witness in the Court is his evidence, but when the accused person is not known to the witness concerned, then identification of the
accused by the witness soon after his arrest is of great importance because it furnishes assurance that the investigation is proceeding on right lines in
addition to furnish corroboration of the evidence to be given by the witness later in the Court at the trial.
23. Learned Special Judge in the case of Ravi alias Ravichandran v. State Rep. by Inspector of Police as reported in AIR 2007 SC 1729 has held that
TIP is not a substantive piece of evidence. It has been held that when the FIR is lodged against unknown person, TIP should be held as early as
possible. The fact of the matter is that the names of the accused were given on the basis of their calling such names without there being any such
identification as has been admitted by PW6 S.S.Chauhan. However, the decision of the Hon'ble Supreme Court is also to the effect that though TIP is
not substantive piece of evidence, yet the Court conducting trial is required to look into the circumstances before taking any decision on to the aspect
of corroboration. In the present case, this judgment has been applied in isolation without referring to the fact that identification of the accused in the
Court was after more than four years of the incident.
24. The prosecution has failed to prove the case beyond reasonable doubt and, therefore, the conviction of the appellant merely on the basis of the
Court identification that too after more than four years of the incident gives rise to suspicion and the benefit of doubt may be extended to the appellant.
Therefore, this Court is of the opinion that the Special Judge has erred in not appreciating the fact that there was no proper identification of the
accused in view of the contradictions of the statements given by PW2 Papendra Rawat, PW3 Raju Kushwah and PW4 Banti Kushwah about their
specific features. There is no statement under Section 161, Cr.P.C. recorded by the Police after release of the abductees PW2 Papendra Rawat,
PW3 Raju Kushwah and PW4 Banti Kushwah giving details of the abductors and, therefore, the circumstances, under which test identification in the
Court has been carried out, are against the principle of law laid down in the case of Dana Yadav (supra).
25. Thus, the conviction solely on the basis of dock identification that too after such a long period is not sustainable and, therefore, the impugned
judgment is set aside. The appeal is allowed. Accordingly, the appellant, who is in jail, be released forthwith.
