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CASE NO.:

Appeal (crl.) 1307 of 2006

PETITIONER:

Heera & Anr

RESPONDENT:

State of Rajasthan

DATE OF JUDGMENT: 20/06/2007

BENCH:

Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment rendered by a

learned Single Judge of the Rajasthan High Court at Jodhpur

upholding the conviction of appellants for offence punishable

under Section 395 of the Indian Penal Code, 1860 ( in short

the 'IPC'). Custodial sentence of 10 years with fine of

Rs.2000/- each with default stipulation as imposed by the

trial Court was maintained. However, five co-accused were

acquitted.

2. Background facts in a nutshell are as follows:

On 24.1.1997 Prem Singh lodged an oral report alleging

inter alia that he is working at Lavri Petrol Pump for last 3

years. In the night at about 2 O' clock, since vehicles were not

coming for filling up petrol, they were taking rest in the office.

Outside the office, two tankers were lying. In office, cook

Kanhaiya Lal, Bhim Singh and Fateh Singh were sleeping. At

that time, about seven persons wearing pant-shirt and sweater

came there and started throwing stones towards the office,

due to which the glasses were broken. On this they wake up.

Three accused persons came towards them and started

beating them with lathis, for which he lifted a lathi and started

giving blows to the accused by lathi, on which all the accused

fell on him. Two persons started breaking the cash box.

Complainant Prem Singh raised hue and cry, hearing which

neighbour Sh. Bhagwati Prasad Joshi came there. He was

also beaten by the accused persons. The accused persons

took away the cash lying in the cash box. Complainant

received injuries on his face and hands. The accused persons

had taken away a sum of Rs.10-12 thousand lying in the cash

box.

3. On this report a case under Section 395 IPC was

registered and investigation commenced. On completion of

investigation, charge sheet was filed. Thirty seven witnesses

were examined by the prosecution to further its version.

Accused persons pleaded innocence and claimed trial. The

trial court found evidence of witnesses to be credible and

cogent. It is to be noted that in the Test Identification Parade

(in short the 'TI Parade''). A1-Heera, A-6 Nopa i.e. the present

appellants were identified. Recovery were also made pursuant

to the information given by them in terms of Section 27 of the

Indian Evidence Act , 1872 (in short the 'Evidence Act'). The TI

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Parade of the accused persons was conducted through Shri

Mahendra Kumar, Civil Judge and Judicial Magistrate. PW-

1-Prem Singh identified A1 and A6. PW-11- Bhanwar Singh

identified A1- Heera. As noted above, trial Court convicted all

the seven accused persons and in appeal conviction of present

appellants was maintained by the High Court.

4. Learned counsel for the appellants in support of the

appeal submitted that the seven persons were arrested. There

was no reason as to why only appellants were held guilty. PW

4-Bhagwati Prasad was a neighbour of the victim. It was also

submitted that the evidence of the PW 22- Puran Puri does not

show that all the requisite formalities were adopted before the

Test Identification Parade was conducted.

5. Learned counsel for the respondent on the other hand

supported the judgment of the High Court.

6. As was observed by this Court in Matru v. State of U.P.

(1971 (2) SCC 75) identification tests do not constitute

substantive evidence. They are primarily meant for the

purpose of helping the investigating agency with an assurance

that their progress with the investigation into the offence is

proceeding on the right lines. The identification can only be

used as corroborative of the statement in court. (See Santokh

Singh v. Izhar Hussain (1973 (2) SCC 406). The necessity for

holding an identification parade can arise only when the

accused are not previously known to the witnesses. The whole

idea of a test identification parade is that witnesses who claim

to have seen the culprits at the time of occurrence are to

identify them from the midst of other persons without any aid

or any other source. The test is done to check upon their

veracity. In other words, the main object of holding an

identification parade, during the investigation stage, is to test

the memory of the witnesses based upon first impression and

also to enable the prosecution to decide whether all or any of

them could be cited as eyewitnesses of the crime. The

identification proceedings are in the nature of tests and

significantly, therefore, there is no provision for it in the Code

and the Evidence Act. It is desirable that a test identification

parade should be conducted as soon as after the arrest of the

accused. This becomes necessary to eliminate the possibility of

the accused being shown to the witnesses prior to the test

identification parade. This is a very common plea of the

accused and, therefore, the prosecution has to be cautious to

ensure that there is no scope for making such allegation. If,

however, circumstances are beyond control and there is some

delay, it cannot be said to be fatal to the prosecution.

7. It is trite to say that the substantive evidence is the

evidence of identification in Court. Apart from the clear

provisions of Section 9 of the Evidence Act, the position in law

is well settled by a catena of decisions of this Court. The facts,

which establish the identity of the accused persons, are

relevant under Section 9 of the Evidence Act. As a general

rule, the substantive evidence of a witness is the statement

made in Court. The evidence of mere identification of the

accused person at the trial for the first time is from its very

nature inherently of a weak character. The purpose of a prior

test identification, therefore, is to test and strengthen the

trustworthiness of that evidence. It is accordingly considered a

safe rule of prudence to generally look for corroboration of the

sworn testimony of witnesses in Court as to the identity of the

accused who are strangers to them, in the form of earlier

identification proceedings. This rule of prudence, however, is

subject to exceptions, when, for example, the Court is

impressed by a particular witness on whose testimony it can

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safely rely, without such or other corroboration. The

identification parades belong to the stage of investigation, and

there is no provision in the Code which obliges the

investigating agency to hold or confers a right upon the

accused to claim, a test identification parade. They do not

constitute substantive evidence and these parades are

essentially governed by Section 162 of the Code. Failure to

hold a test identification parade would not make inadmissible

the evidence of identification in Court. The weight to be

attached to such identification should be a matter for the

Courts of fact. In appropriate cases it may accept the evidence

of identification even without insisting on corroboration. [See

Kanta Prashad v. Delhi Administration (AIR 1958 SC 350),

Vaikuntam Chandrappa and others v. State of Andhra

Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of

U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of

Jammu and Kashmir (AIR 1972 SC 102)].

8. In Jadunath Singh and another v. The State of Uttar

Pradesh (1970) 3 SCC 518), the submission that absence of

test identification parade in all cases is fatal, was repelled by

this Court after exhaustive considerations of the authorities on

the subject. That was a case where the witnesses had seen the

accused over a period of time. The High Court had found that

the witnesses were independent witnesses having no affinity

with deceased and entertained no animosity towards the

appellant. They had claimed to have known the appellants for

the last 6-7 years as they had been frequently visiting the

town of Bewar. This Court noticed the observations in an

earlier unreported decision of this Court in Parkash Chand

Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of

1956 decided on January 15, 1957), wherein it was observed :-

"It is also the defence case that Shiv Lal did

not know the appellant. But on a reading of

the evidence of P.W. 7 it seems to us clear

that Shiv Lal knew the appellant by sight.

Though he made a mistake about his name

by referring to him as Kailash Chandra, it was

within the knowledge of Shiv Lal that the

appellant was a brother of Manak Chand and

he identified him as such. These

circumstances are quite enough to show that

the absence of the identification parade would

not vitiate the evidence. A person who is well-

known by sight as the brother of Manak

Chand, even before the commission of the

occurrence, need not be put before an

identification parade in order to be marked

out. We do not think that there is any

justification for the contention that the

absence of the identification parade or a

mistake made as to his name, would be

necessarily fatal to the prosecution case in

the circumstances."

9. The Court concluded:

"It seems to us that it has been clearly laid

down by this Court, in Parkash Chand Sogani

v. The State of Rajasthan (supra) (AIR Cri LJ),

that the absence of test identification in all

cases is not fatal and if the accused person is

well-known by sight it would be waste of time

to put him up for identification. Of course if

the prosecution fails to hold an identification

on the plea that the witnesses already knew

the accused well and it transpires in the

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course of the trial that the witnesses did not

know the accused previously, the prosecution

would run the risk of losing its case."

10. In Harbajan Singh v. State of Jammu and Kashmir

(1975) 4 SCC 480), though a test identification parade was not

held, this Court upheld the conviction on the basis of the

identification in Court corroborated by other circumstantial

evidence. In that case it was found that the appellant and one

Gurmukh Singh were absent at the time of roll call and when

they were arrested on the night of 16th December, 1971 their

rifles smelt of fresh gunpowder and that the empty cartridge

case which was found at the scene of offence bore distinctive

markings showing that the bullet which killed the deceased

was fired from the rifle of the appellant. Noticing these

circumstances this Court held:-

"In view of this corroborative evidence we find

no substance in the argument urged on

behalf of the appellant that the Investigating

Officer ought to have held an identification

parade and that the failure of Munshi Ram to

mention the names of the two accused to the

neighbours who came to the scene

immediately after the occurrence shows that

his story cannot be true. As observed by this

Court in Jadunath Singh v. State of U.P. (AIR

1971 SC 363) absence of test identification is

not necessarily fatal. The fact that Munshi

Ram did not disclose the names of the two

accused to the villages only shows that the

accused were not previously known to him

and the story that the accused referred to

each other by their respective names during

the course of the incident contains an element

of exaggeration. The case does not rest on the

evidence of Munshi Ram alone and the

corroborative circumstances to which we have

referred to above lend enough assurance to

the implication of the appellant."

11. It is no doubt true that much evidentiary value cannot be

attached to the identification of the accused in Court where

identifying witness is a total stranger who had just a fleeting

glimpse of the person identified or who had no particular

reason to remember the person concerned, if the identification

is made for the first time in Court.

12. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630)

this Court upheld the conviction of the appellant even when

the witness while deposing in Court did not identify the

accused out of fear, though he had identified him in the test

identification parade. This Court noticed the observations of

the trial Judge who had recorded his remarks about the

demeanour that the witness perhaps was afraid of the accused

as he was trembling at the stare of Ram Nath-accused. This

Court also relied upon the evidence of the Magistrate, PW-7

who had conducted the test identification parade in which the

witness had identified the appellant. This Court found, that in

the circumstances if the Courts below had convicted the

appellant, there was no reason to interfere.

13. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1)

SCC 80), this Court held that it is well settled that substantive

evidence of the witness is his evidence in the Court but when

the accused person is not previously known to the witness

concerned then identification of the accused by the witness

soon after his arrest is of great importance because it

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furnishes an assurance that the investigation is proceeding on

right lines in addition to furnishing corroboration of the

evidence to be given by the witness later in Court at the trial.

From this point of view it is a matter of great importance, both

for the investigating agency and for the accused and a fortiori

for the proper administration of justice that such identification

is held without avoidable and unreasonable delay after the

arrest of the accused. It is in adopting this course alone that

justice and fair play can be assured both to the accused as

well as to the prosecution. Thereafter this Court observed:-

"But the position may be different when the

accused or a culprit who stands trial had

been seen not once but for quite a number of

times at different point of time and places

which fact may do away with the necessity of

a TI parade."

14. In State of Uttar Pradesh v. Boota Singh and others

(1979 (1) SCC 31), this Court observed that the evidence of

identification becomes stronger if the witness has an

opportunity of seeing the accused not for a few minutes but

for some length of time, in broad daylight, when he would be

able to note the features of the accused more carefully than on

seeing the accused in a dark night for a few minutes.

15. In Ramanbhai Naranbhai Patel and others v. State of

Gujarat (2000 (1) SCC 358) after considering the earlier

decisions this Court observed:-

"It becomes at once clear that the aforesaid

observations were made in the light of the

peculiar facts and circumstances wherein the

police is said to have given the names of the

accused to the witnesses. Under these

circumstances, identification of such a named

accused only in the Court when the accused

was not known earlier to the witness had to

be treated as valueless. The said decision, in

turn, relied upon an earlier decision of this

Court in the case of State (Delhi Admn.) v. V.

C. Shukla (AIR 1980 SC 1382) wherein also

Fazal Ali, J. speaking for a three-Judge Bench

made similar observations in this regard. In

that case the evidence of the witness in the

Court and his identifying the accused only in

the Court without previous identification

parade was found to be a valueless exercise.

The observations made therein were confined

to the nature of the evidence deposed to by

the said eye-witnesses. It, therefore, cannot

be held, as tried to be submitted by learned

Counsel for the appellants, that in the

absence of a test identification parade, the

evidence of an eye-witness identifying the

accused would become inadmissible or totally

useless; whether the evidence deserves any

credence or not would always depend on the

facts and circumstances of each case. It is, of

course, true as submitted by learned Counsel

for the appellants that the later decisions of

this Court in the case of Rajesh Govind

Jagesha v. State of Maharashtra (AIR 2000

SC 160) and State of H.P. v. Lekh Raj (AIR

1999 SC 3916), had not considered the

aforesaid three-Judge Bench decisions of this

Court. However, in our view, the ratio of the

aforesaid later decisions of this Court cannot

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be said to be running counter to what is

decided by the earlier three-Judge Bench

judgments on the facts and circumstances

examined by the Court while rendering these

decisions. But even assuming as submitted

by learned Counsel for the appellants that the

evidence of, these two injured witnesses i.e.

Bhogilal Ranchhodbhai and Karsanbhai

Vallabhbhai identifying the accused in the

Court may be treated to be of no assistance to

the prosecution, the fact remains that these

eye-witnesses were seriously injured and they

could have easily seen the faces of the

persons assaulting them and their

appearance and identity would well within

imprinted in their minds especially when they

were assaulted in broad daylight. They could

not be said to be interested in roping in

innocent persons by shielding the real

accused who had assaulted them."

16. These aspects were recently highlighted in Munshi Singh

Gautam (dead) and Ors. v. State of M.P. ( 2005 (9) SCC 631).

17. In the instant case the accused persons have been

identified by PWs 1 and 11 and no infirmity was noticed in

their evidence. Additionally, evidence of PW 22 clearly shows

that all requisite formalities with regard to Test Identification

Parade were adopted and followed. In that view of the matter

there is no merit in the appeal which is accordingly dismissed.

18. We record our appreciation for the able manner in which

Ms. Tanuj Bagga Sharma, learned Amicus Curiae assisted the

Court.