The Supreme Court in the case of Lala @ Anurag Prakash Aasre v. The State of Maharashtra has held that failure to conduct Test Identification Parade (TIP) for an accused will not vitiate his conviction.
The Court observed that TIP was unnecessary in the case as the identity of the appellant was known to the witnesses and the appellant was also identified by the prosecution eyewitnesses as the person who wielded the sword and inflicted the injuries.
The appellant preferred an appeal before the Supreme Court against the dismissal of his appeal by the High Court and his conviction under section 302, 120B, 147, 148, and 324 of the Indian Penal Code (IPC).
Facts of the case
The deceased (Balu Mandpe) was chit-chatting with his friends on 22-01-2009 in front of his house at a street corner when he was attacked by deadly weapons by a group of 10-12 persons who at first hurled abuses at the deceased. The accused group started assaulting the deceased with sharp-edged weapons such as sword, knives, khanjar, and farsa. The deceased was taken to the hospital by his friends where he was declared dead by the doctors.
An FIR was lodged in the Imamwada Police Station by the prosecution witness 1 (PW1) where he mentioned the names of all the attackers except that of the Appellant (Lala @ Anurag Prakash Aasre) in the larger group describing one of the attackers by his build and appearance.
The case was registered under sections 147, 148, 149, 302, 120B of the Indian Penal Code(IPC). After the filing of the chargesheet, the case went before the Sessions Court at Nagpur. As per the Trial Court, the appellant assaulted PW1 with a sword and he along with other accused was convicted.
An appeal was preferred by the appellant before the High Court where his counsel contended that PW1 while naming the six assailants, had not named the appellant in the FIR. As per the FIR- when PW1 intervened to protect the deceased "One tall person having longish nose attacked with the sword". When the informant PW1 resisted the same by his hand, he suffered a sword injury in the wrist area of his left hand. The remaining 6 accused named in the FIR, had carried knives, khanjar, and farsa.
The Appellant denied that he was a part of the accused group and his name was not mentioned in the registered FIR. Further appellant's counsel contended that as TIP was not conducted the identity of the appellant is not clearly formed as one of the not named persons involved in the assault.
The State contended that the appellant was convicted under section 324 IPC as he gave a sword blow to PW1 and also TIP was not required as the appellant is identified by all the eyewitnesses and was known to PW1 and PW4. Also, the appellant was specifically named by PW1 in the supplementary statement recorded by the police under section 161 Cr.Pc. and PW2, PW4, and PW6 have also named the appellant in their Section 161 statement.
The main issue involved in the appeal was whether the appellant was identified as the person wielding the sword, who gave the sword blow to PW1 and also to the deceased.
Supreme Court's findings
The apex court after carefully considering the contentions of both the parties ruled that there were a few errors (typographical or otherwise) in the FIR witness statements and supplementary statements, presented at different stages of this case for which the Court relied upon the Draft Rules of Criminal Practice, 2021 notified on SC's directions in Suo Moto Writ (Crl.) No.1/2017 'In Re: To Issue Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials'.
The Court resorted to the relevant original Trial Court records to ensure that the judgment is based upon correct facts and documents.
The bench of Justices Hrishikesh Roy and Sanjay Kishan Kaul observed that although the FIR does not include the name of the appellant as one of the accused, the statement recorded on the day of the attack does mention "one fair complexioned person having longish nose, named 'Lalya', attacked with sword and I obstructed the blow with my arm." Also, the supplementary statement recorded under section 161 CrPc submitted by the state also identifies the assailant by name, "one heightened, white coloured boy namely Lalya attacked me with sword".
The testimony of all the other PWs was also considered by the Court who had actually identified the appellant as one of the attackers who had assaulted the deceased with a sword due to which the deceased sustained injuries fell down and eventually died.
The Supreme Court held that while it is true that the FIR is silent on the name of the appellant, it cannot entirely throw out the prosecutorial case on such a basis as other reliable evidence was available in the case. The FIR is certainly the starting point of the investigation, but it is well within the rights of the prosecution to produce witness statements as they progress further into the investigation and unearth the specific roles of accused persons. The FIR as is known, only sets the investigative machinery, into motion.
The court while considering all the relevant facts and evidence held the identity of the appellant as one of the attacking group members and his specific role in the assault is established beyond doubt which led to the death of Balu Mandpe and injuries to PW1 and others.
The apex court while referring to the case of Munshi Singh Gautam v. State of M.P. (2005) 9 SCC 631 dismissed the appeal of the appellant and upheld the decision of both the High Court and Trial Court which held that the absence of the name of the appellant in the FIR would not justify his acquittal while was he was particularly identified by prosecution eyewitnesses. While the appellant was positively identified by the eyewitnesses, the TIP not being conducted was held to be immaterial.