LexVIJAYAN@ RAJAN versus STATE OF KERALA
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_.., VITA YAN @ RAJAN A v. STATE OF KERALA FEBRUARY 16, 1999 [G.B. PATTANAIK ANDS. RAJENDRA BABU, JJ.] B Evidence Act, 1872: Section 9. Test Identification Parade-Found not acceptable--Evidentiary value of-Held, identification of accused in court after many years of occunmce c cannot be accepted-Further, it is impossible to remember the face of the accused by the witness for the purpose of identification after 5 years of the occurrence though the witness had seen his face while opening the door. Test Identification Parade-Photograph of accused shown to witness · and also printed in all local newspapers-Held, in the circumstances, test D .. identification parade rightly not relied on by trial court-Further, a witness seeing an unknown man running away cannot identify him at a later point of time particularly when no special feature is indicated by the witness. Test identification Parade-Witness identified accused in Test Iden- E tification Parade but failed to identify him in court-Held, identificatio11 in Test Identification Parade loses its importance. Section 32-Dying declaration-Deceased made a statement that people close to co-accused killed him-No evidence to indicate that deceased knew accused earlie1~Held, such statement, eve11 if accepted, cannot be said F -.... to be the cli11chi11g material to hold that it refers to the accused. Section 27-Crime articles-Recovery of-'-Bullets recovered from house of accused on basis of his disclosure statement while in police custody-No evidence to show that bullets recovered from body of deceased were the same G as those recovered from house of accused-Held, this circumstance insuffi- cie11t to connect accused with the crimC-Criminal Trial. ~ ..... Penal Code, 1860 : Ss. 120-B and 302. Climinal Conspiracy-Establishing of-Held, Prosecution must estab- H 659 660 SUPREME COURT REPORTS [1999) 1 S.C.R. A fish connection between alleged conspiracy and act done pursuant to the said conspiracy. The appellants-accused were tried by the Sessions Court for offences under Section 302 of the Penal Code, 1860 read with Section 120-B and were acquitted. However, the High Court convicted the first appellant B under Section 302 IPC and the second appellant under Section 302 read with Section 120-B and were sentenced to undergo imprisonment for life. Hence this appeal. According to the prosecuti?n, the accused entered into a criminal C conspiracy to cause the death of the deceased. Pursuant to the said conspiracy the first accused fired two shots at the deceased who suc- cumbed to the injuries at the hospital. The photograph of the first accused was shown to the witnesses and also printed in all local newspapers before the Test Identification Parade. (TIP) However, the witness who identified the accused in the TIP failed to identify him in the court. One of the D witnesses saw the first accused running away on the road after the occur- rence. Two bullets were recovered from the house of the second accused pursuant to his disclosure statemeut under Section 27 of the Evidence Act, 1872. The maidservant of the deceased had seen the face of the first accused while opening the door and she identified him in the court after E 5 years. The deceased had made a statement that the people close to first accused had killed him. Allowing the appeal, this Court HELD : 1.1. It is highly unsafe to accept the identification of accused F in Court many years after the occurrence when the Test identification Parade made shortly after the occurrence has not been accepted. Moreover, for a person to just see the face of the accused while opening, the door and then remember the same for the purpose of identification after five years of occurrence is just impossible. [664-F-G] G 1.2. Not only the photograph of the first accused was shown to the maidservant but was also printed !n all the local newspapers. Under these circumstances, the Sessions Judge rightly did not rely upon the Test Identification Parade. Further, a witness seeing an unknown man running away would not be able to identify him at a later point of time particularly H . when no special feature was also indicated by the witness. [665-D] VIJAYAN@RAJANv. STATE[PATIANAIK,J.] 661 ... ., 1.3. Although the witness identified the first accused in the Test A Identification Parade yet he could 11.ot identify him in court and, therefore, ·the Test Identification Parade loses its imp
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