While ruling on a very significant legal point pertaining to the manner of conducting of test identification parade, the Apex Court in a most learned, laudable, landmark, logical and latest judgment titled Jafar vs State of Kerala in Criminal Appeal No. 1607 of 2009 and cited in Neutral Citation No. : 2024 INSC 207 that was pronounced as recently as on March 15, 2024 has minced just no words to hold in no uncertain terms that in the absence of proper identification parade being conducted, the identification for the first time in the court cannot be said to be free from doubt. We need to note here that the Apex Court held so while deciding in an appeal that was against the judgment of the Kerala High Court by which an appeal that had been submitted by the accused was dismissed and his conviction was confirmed for the offence that is punishable under Section 397 read with Section 395 of the Indian Penal Code (IPC). It definitely must be mentioned here that the two-Judge Bench of the Apex Court comprising of Hon’ble Mr Justice BR Gavai and Hon’ble Mr Justice Sandeep Mehta minced just no words to observe unequivocally that:
In the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt. We find that the other circumstance that the Courts relied for resting the order of conviction is with regard to the recovery of an iron rod. An iron rod is an article which could be found anywhere. It is not the case of the prosecution that any stolen article was recovered from the appellant herein.

While closing the curtains finally on this leading case, we see that the Apex Court was most unequivocal in holding that the judgment and order passed by the High Court dismissing the appeal and of the Trial Court convicting the appellant are not sustainable in law. Accordingly, we observe that in the fitness of things, the Apex Court after considering everything most sagaciously allowed the appeal, quashed the impugned judgment and very rightly acquitted the appellant. No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice BR Gavai for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Sandeep Mehta sets the ball in motion by first and foremost putting forth in para 1 that:
This appeal challenges the judgment and order dated 16.01.2009 passed by the learned Single Judge of the High Court of Kerala at Ernakulam in Criminal Appeal No. 643 of 2008 thereby dismissing the appeal filed by the appellant herein and confirming the conviction as recorded by the Court of Addl. Sessions Judge (Adhoc-II), Ernakulam (for short, ‘trial court’) for the offence punishable under Section 397 read with Section 395 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentencing him to undergo rigorous imprisonment for seven years, with a fine of Rs.10,000/-; in default of payment of fine, to suffer simple imprisonment for a period of three months.

To put things in perspective, the Bench envisages in para 2 while dwelling on the facts of the case that:
The case of the prosecution in brief is that, on 14.05.2004 at about 1:45 a.m., accused Nos.1 to 8 came in a vehicle bearing registration number KL 4/C 6021 driven by accused No.8 to the building at Perumbavoor, where the retail shops of Kerala State Beverages Corporation were situated in three rooms bearing Door Nos.17/1221, 1222 and 1223, with the intention to commit dacoity. According to the prosecution, accused Nos.1 to 4, 6 and 7 armed with deadly weapons like iron lever and wooden bar, entered into the room No.17/1238. At the said gate, the security guard (PW1) was posted.

The appellant herein (accused No.2) kicked on the naval portion of PW-1. Sijo @ Fijo (accused No.4) beat him with an iron lever on the right leg, which resulted in fracture. Accused Nos.1 to 3 beat him with the wooden bar on various parts of his body. Thereafter, the accused persons tied the legs and hands of PW-1 with bath towels and made him lie on the cot. Following which, they fastened his body on the cot with a piece of bed sheet and the remaining piece of the bed sheet was pushed into his mouth and they manhandled him. Thereafter, they committed robbery of mobile phone, wrist watch and torch belonging to PW-1.

As we see, the Bench then discloses in para 2.1 that:
It is also the prosecution case that they destroyed the light in the building and lock of the shutters of the retail shop of the corporation. On the basis of said allegation, Crime No.345/2004 came to be registered in the Perumbavoor Police Station for the offence punishable under Section 397 of the IPC.

As it turned out, the Bench then while delving deeper enunciates in para 2.2 that:
Upon completion of the investigation, a final report was filed in the Court of Judicial Magistrate First Class, Perumbavoor upon which the Court took cognizance and instituted C.P. No.89/2005. As the accused No.1 was absconding, the case against him was split up and re-filed in the committal court. Insofar as accused Nos.3 and 6 are concerned, since they were minors, charge-sheet against them was filed in the Juvenile Court. The case against accused Nos.2, 4, 5, 7 and 8 in the original charge-sheet was committed to the Court of Sessions, Ernakulam wherein S.C.No.723/2005 was instituted. Before the learned trial court, the accused were re-arrayed as accused Nos. 1 to 5. The charges came to be framed for offences punishable under Section 397 read with Section 395 of the IPC and the accused pleaded not guilty. Thereafter, the accused Nos.1 and 4 absconded and hence trial was proceeded only against accused Nos. 2, 3 and 5. The trial court only found accused Nos.2 and 3 guilty and as such convicted them as aforesaid. Insofar as accused No. 5 is concerned, he was acquitted.

Needless to state, the Bench then states in para 3 that:
We have heard Mr. T.N. Singh, learned counsel for the appellant and Mr. Harshad V. Hameed, learned counsel for the respondent/State.

Do note, the Bench notes in para 4 that:
Learned counsel for the appellant submits that the conviction is based on no evidence and as such, the appeal deserves to be allowed. As against this, learned counsel for the respondent/State submits that both the Courts have concurrently, upon appreciation of the evidence, found the appellant to be guilty and as such, no interference would be warranted.

Be it noted, the Bench notes in para 5 that:
With the assistance of the learned counsel for the parties, we have scrutinized the evidence. The conviction of the appellant herein is basically based on the deposition of Babu Puttan (PW-1), who was working as a security guard and was sitting in a chair in front of the said room. No doubt that he narrates the version, as per the prosecution case. He has also identified accused No.2-Jafar, appellant herein and accused no.3-Saneesh in the Court. However, he has clearly admitted that police had shown him these two people and as such, he has identified them.

Quite significantly, it is worth noting that the Bench notes in para 6 that, Anil Kumar (PW-8), who is the Investigating Officer (IO), has also admitted that PW-1 identified the accused persons by seeing them at the police station. He has further admitted that no identification parade was conducted. As such, it can be seen that the identification of the appellant herein by PW1 is quite doubtful as no identification parade has been conducted. PW-1 clearly states that he has identified the accused persons since the police had shown him those two people.

Most significantly and most forthrightly, what constitutes the cornerstone of this notable judgment is then encapsulated in para 7 holding that:
In the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt. We find that the other circumstance that the Courts relied for resting the order of conviction is with regard to the recovery of an iron rod. An iron rod is an article which could be found anywhere. It is not the case of the prosecution that any stolen article was recovered from the appellant herein.

As a corollary, the Bench then holds in para 8 that:
In the result, we find that the judgment and order passed by the High Court dismissing the appeal and of the trial court convicting the appellant are not sustainable in law.

Further, the Bench then directs in para 9 that:
The appeal is therefore allowed. The judgment and order of the trial court convicting the appellant herein and that of the High Court affirming the same are quashed and set aside.

What’s more, the Bench then further directs in para 10 that:
The appellant herein is acquitted of all the charges charged with. Since the appellant is on bail, his bail bonds shall stand discharged.

Finally, the Bench then concludes by holding in para 11 that:
Pending application(s), if any, shall stand disposed of.

In a nutshell, we thus see that the Apex Court most commendably acquits the appellant of all the charges charged with after considering all the facts and all the evidence that were placed before it. While taking the most balanced stand, the Apex Court very rightly took the most pragmatic stand that in the absence of proper identification parade being conducted, the identification for the first time in the court cannot be said to be free from doubt. There can be no gainsaying that the benefit of doubt always goes to the accused. No denying it.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh