A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

whether the interest paid qualifies as penalty charges for late payment as per Article 11(6), whereby the exemption afforded by the said Article would stand excluded. If not, the exemption afforded by Article 11(1) would squarely apply and the interest paid by Ascendas to the assessee company in Netherlands owing to the sale of shares of VITP Ltd. would not be taxable in India.

The core lacuna in the case of the Prosecution lies in its failure to produce the seized silver and gold articles before the jurisdictional Magistrate and conduct Test Identification with either PW.3 or PW.4. Test Identification Parade was arranged for identification of the appellant by LW.1, PW.3 and PW.4. However, the report reveals that while LW.1 has failed to identify the appellant, PW.4 was absent. It is only PW.3, who is stated to have identified the appellant. It was suggested to PW.3 in his cross- examination that there is a tackle mark on the forehead of the appellant and that the Police have shown his photographs before the Test Identification Parade. Irrespective of the probative value of this suggestion, we are of the opinion that the appellant cannot be convicted solely based upon the identification by one witness as there is every likelihood of the witness indulging in chance identification as only 5 persons were paraded before him and such chance identification cannot be ruled out. If we carefully consider the contents of Ex.P.4, LW.1 spent long time with the assailants during the entire incident and for the reasons best known to the Prosecution, they have not cited him as a witness. Moreover, he, being the person who had the best chance of identifying the appellant, failed in this regard during the Test Identification Parade. Similarly, PW.4 has not even attended the Test Identification Parade. In these facts and circumstances of the case, it is wholly unsafe to rely upon the testimony of PW.3 to connect the appellant to the offences with which he was charged.