Full Judgment
S.C. Mohapatra, J.
1. This is an appeal against an order of acquittal.
2. Prosecution was launched against 11 accused persons. Accused Nos. 1 to 7 were charged Under Section 395 I.P.C. Accused Nos. 8 to 10 were charged for an offence Under Section 412 I.P.C., and accused No. 11 was charged Under Section 216-A I.P.C. This appeal is directed against acquittal of accused Nos. 1 to 4 and 6. No appeal has been filed against acquittal of accused Nos. 5, 6 and 8 to 11. Main ground of attack to the acquittal of the five respondents is their identification. Therefore, it is to be consider-ed whether the respondents in this appeal were identified by P. Ws. 1 and 4 as claimed by the prosecution since identification has been disbelieved by the trial court on the ground of delay.
3. Mr. Jitamitra Mohanti, learned Additional Standing Counsel relied upon the decision reported in (1990) 2 CLR 324 (Satrughna v. State of Orissa in support of his submission that there is no delay in conducting the test identification parade and accordingly trial court unreasonably disbelieved identification of the respondents.
4. In considering the question of involvement of an accused with the crime, totality of evidence and circumstances are to be considered. Precedents are only guidelines for appreciating the evidence on record. Delay in test identification parade by itself cannot be a ground to reject identification if otherwise the same is acceptable. Delay, however, is a circumstance to be given weight since normal course of conduct is that a duty is discharged by the officers immediately if otherwise there is no impediment and where delay is outcome of laches, bona fides of actions of the officers become doubtful. Where no laches can be inferred, mere delay by itself ought not to be a ground to reject the test identification parade. Drawal of inference depends upon the judicial approach of the Judge considering the matter. In the decision referred to by Mr. Mohanti, a psychology of persons identifying is tried to be explained to lay down a principle. As has been rightly observed, circumstances cannot be considered as mathematical rule. I am inclined to hold that judicial determination of a Judge should be left to his own judgment on the facts and in the circumstances of a case and no general principle should be laid down. All decisions explaining the reasons for drawing the factual inferences must be confined to the facts of that case since facts and circumstances of two cases are never equal.
5. In background of the aforesaid discussion, I am to examine if delay if any in conducting the test identification parade was outcome of laches for disbelieving the identification which is sought to be the sole basis of conviction.
6. Delay in test identification parade has been the reason to doubt the involvement of respondents in the crime committed. Mr. Jitramitra Mohanty, learned Additional Standing Counsel submitted that occurrence being on 24-12-1982, test identification parade on 27-1-1983 of some and on 22-2-1983 of others cannot be said to be delayed.
7. Normally, steps are taken for conducting test identification parade after arrest of an accused. Identification in a parade becomes meaningless if the person identifying has other means of knowing the suspect before such parade. In absence of such an inference by the Court, delay by itself should not be a ground to discard the identification. Accordingly, I am in agreement with the submission of Mr. Mohanti that in this case such an inference cannot be drawn and identification if otherwise acceptable, ought not to be rejected merely on ground of delay.
8. This led me to consider the evidence with regard to identification. It is not disputed that the only material witnesses are P.Ws. 1 and 4 for this purpose. In the earliest version of P.W. 4 in the FIR he has stated that the culprits covered their faces by cloth and napkins. If this is the position, test identification should have been conducted with such covering of faces. Then only identification would have been well proved. The same has not been done. I would have normally proceeded further even discarding this aspect if the situation would have been such that the witnesses would have remembered the faces on the date of occurrence. On version of P. W. 1, he was assaulted brutally as a result of which he became unconscious. It is not possible to identify persons who had covered their faces with cloth and napkins on such short observation. Identification by P.W. 1 becomes doubtful. Respondent No. 1 has clean shaved head at the time of identification. There was no similar person in the test identification parade. Accordingly, his identification by P. Ws. 1 and 4 is not to be accepted to be a just ground to involve him with the crime.
9. In view of the aforesaid discussions, only on the doubtful identification of P. Ws. 1 to 4 it becomes difficult to convict the respondents without any further materials to lend assurance for their being involved in the crime. In such circumstances, when they have been acquitted by the trial court, I am not inclined to interfere with the acquittal.
10. In the result, there is no merit in this appeal which is accordingly dismissed.