ANIL KUMAR versus STATE OF U.P.

Citation: [2003] 1 S.C.R. 1067 · Decided: 13-02-2003 · Supreme Court of India · Bench: S.N. VARIAVA · Disposal: Dismissed

Judgment (excerpt)

-. 
ANIL KUMAR 
A 
V. 
STATE OF U.P. 
FEBRUARY 13. 2003 
[S.N. VARIAVA AND B.N. AGRAWAL, JJ.] 
8 
Penal Code, 1860: 
Sections 148, 149, 30./ Part-II, 323, 324 and 325: Accused assaulted 
prosecution witness and killed his brother-Conviction by trial Court-Affirmed C 
by High Court-On appeal Held, when the eye witnesses/Relatives of the 
victin1 have a clear look at assailants co1nn1itting crilne, the facial expressions 
would get en1bossed in their 1ne11101y and tt1ould not be erased in a short 
period of tinze-Hence evidence ·af such eye-witnesses reliable-Delay in test 
identification parade ilnn1aterial-Evidence Act, 1872. 
D 
Cri111inal trial: 
Non-exan1i11ation of H1itness other than eye-1vitness-Effect on-Held, 
no prejudice is caused to accused. 
According to the Prosecution, \vhen PW2 was_ returning to his house, 
he was intercepted and assaulted by the accused. When his younger 
brother, sister and parents came to his rescue, accused assaulted them as 
well. Thereafter, younger brother of PW2 succumbed to his injuries. 
E 
A complaint was lodged by the father of the deceased against 8 F 
persons. Trial Court convicted and sentenced accused appellant and other 
accomplice under Sections 325 r/w 149; 324 r/w 149; 323 r/w 149 IPC and 
under Section 148 IPC and acquitted the remaining 6 persons. Both 
accused as well as State preferred appeals before the High Court. High 
Court confirmed the conviction and sentences and also concluded that an 
offence was made out under Sections 304 Part-II r/w 149 IPC and G 
convicted and sentenced both the accused persons accordingly. Hence the 
present appeal. 
It was contended for the accused-appellant that since the scribe of 
Fill \vas relative of the complainant and knew the accused also, non-
I %7 
H 
1068 
SUPREME COURT REPORTS 
f2003] 1 S.C.R. 
A examination of such witness, gravely prejudiced the accused; that since 
accused was taken to hospital without his face being covered, trial got 
vitiated; and that delay in conducting test identification parade casts a 
doubt on the genuineness of the identification parade. 
B 
Dismissing the appeal, the Court 
HELD: Lt. The scribe of FIR was not an eye-witness. He did not 
see the incident and did not know who were present or who the as_sailants 
were. He only scribed what was told to him by PWI, the complainant. It 
has come in the evidence of PWs.1, 2 and 4 that they did not know the 
appellant prior to the incident. They therefore could not have named him 
C in the FIR. Si.nee the said scribe was not an eye-witness to the incident 
there \vas no necessity to examine him. He could not have stated whether 
the appellant was present or not. Therefore, no prejudice has been caused 
to the appellant. 11070-G, H; 1071~AJ 
D 
1.2. In the instant case, PWs. 8 and 9, the investigating officer and 
the officer-in-charge of the police station, took the appellant in a covered 
conditibn and that whilst the appellant was in jail he was not shown to 
anybod~. Jn cross~examination, their testimony that they had taken t.hese 
precautions, c·ould not be shaken. Thus in this case there is clear evidence· 
that precautions were taken in order to ensure that the witnesses did not 
E have the chance to see the appellant. 11071-D-El 
L3 .. PW2,. brother of the deceased, was attacked by the appellant 
as well as his accomplice. He had a clear look at his assailants. Thereafter 
his younger brother came to save him and got killed. PW2 also r~ceived 
serious inj11ries. These are circumstances which would impress upon the 
F · mind of PW2 the facial expressions of the assailants. This impression would 
not dimin_ish or disappear within a period of 47 days. Similar is the case 
of other prosecution witnesses, parents of the deceased. They have .seen 
the assailants attacking their sons and one of the sons getting killed. ln 
their memory also the facial expressions of the assailants would get 
G embossed. A mere lapse of 47 days is not going to erase the facial 
expressions from their memory. All the witnesses have identified the· 
appellant. Their evidence is believable. There is no infirmity in the 
impugned judgment. 11073-G, H; 1074-A, Bl 
Brij Mohan v. Siate of Rajasthan, AIR (1994) SC 739 and Daya Singh 
H v. State of Haryana, AIR (2001) SC 1188, relied on. 
ANIL KUMAR v. STATE OF U.P. [S.N. VAR!AVAJ]. 
1069 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A 
13911996. 
From the Judgment and Order dated 22.11.1994 of the High Court of 

Excerpt shown. Read the full judgment & AI analysis in Lexace.