MOHINDER SINGH Vs. STATE

JUDGEMENT

(1.) This criminal appeal is directed against the judgment and order dated 16.11.1995 of the learned Additional Sessions Judge in Sessions Case No. 141/95 whereby the learned Additional Sessions Judge held the appellant guilty under Section 25/54/59 of the Arms Act and further by his separate order of : the same date sentenced him to undergo R.I. for four years with a fine of Rs.200/- and in default of payment of fine to further undergo R.I. for fifteen days. The appellant was further sentenced to undergo R.I. for seven years.

(2.) The facts of the case as noted by the learned Additional Sessions Judge are as follows:

(3.) The main point of the learned Counsel for the appellant is that the identity of the accused has not been established. He submits that no witness categorically identifies the accused nor has any test identification parade being held and that mere identification done in Court is not an identification sufficient to hold the prosecution's case proved beyond a shadow of doubt. Learned Counsel for the appellant has taken me through evidence on record. It appears that the prosecution in support of the case brought home three witnesses sought to be eye-witnesses. Of them Public Witness 1, Anil Kumar, does not support the prosecution case at all. Similarly, Public Witness 4 does not support the case of the prosecution. The only witness upon which the conviction has been maintained is Public Witness 3, Balu Ram. This witness states that he was shown a photograph of the accused in the police station which was the basis of the identification of the accused. This witness also states that accused Mohinder was shown to him at Police Station, Laxmi Nagar by the police. The same witness states that after he was shown the photograph of Mohinder, the S.H.O. told him that the accused is confined to Tihar Jail. It is not clear, as to how, from Tihar Jail the accused was brought to Police Station, Laxmi Nagar, where he was again shown to this witness. However, the prosecution has not placed on record the photograph purported to be that of Mohinder nor placed on record any application seeking a test identification parade. This being the only evidence to establish the identity of the accused the same has to be looked at with reference to the established position at law. The law on the point of identification is very clear. Identification by way of photograph is not admissible in evidence. However, the photograph also having not placed on record, it cannot be said that such an identification is not beyond a shadow of doubt. The Supreme Court in 2001 (AD) Criminal Supreme Court 309, has held that if the mode of establishing identity of the accused is only that referred to above, such cannot form the basis of conviction.