2025 INSC 220 Criminal Appeal No.1931 of 2019 Page 1 of 17

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1931 OF 2019

VINOD @ NASMULLA …APPELLANT

VERSUS

THE STATE OF CHHATTISGARH …RESPONDENT

J U D G M E N T

MANOJ MISRA, J.

1. This appeal impugns the judgment and order of

the High Court of Chhattisgarh, Bilaspur

1 dated

03.01.2018 passed in Criminal Appeal No.3014 of

1999 whereby the appeal of the appellant against the

judgment and order of the Sessions J udge,

(Surgujha) Ambikapur (then in Madhya Pradesh)

dated 26.10.1999, passed in Sessions Trial No.292 of

1

“The High Court”

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1994, has been dismissed and conviction of the

appellant under Section 395 read with Section 397 of

the Indian Penal Code, 1860

2 and Section 25 of the

Arms Act, 1959

3 has been upheld.

2. The appellant Vinod @ Nasmulla and Mohd.

Kalam Ansari were jointly tried by the Court of

Session, (Surguja), Ambikapur (now in the State of

Chhattisgarh). Mohd. Kalam Ansari was acquitted

whereas the appellant was convicted under Section

395 read with Section 397 of the IPC and Section 25

(1)(b) of the Arms Act. Under Section 395 read with

Section 397 of the IPC he was sentenced to seven

years rigorous imprisonment along with fine of

Rs.2,000/-, coupled with a default sentence of eight

months; and for the offence punishable under

Section 25(1) (b) (a) of the Arms Act, he was

sentenced to one and a half years of rigorous

imprisonment along with fine of Rs.500/-, coupled

with a default sentence of three months. All

sentences were to run concurrently.

Prosecution Case

3. The prosecution case in brief is that while Bus

bearing registration No. U.P. 42-A 5406 of Adarsh

2

“IPC”

3

Arms Act

Criminal Appeal No.1931 of 2019 Page 3 of 17

Transport Bus Service was going to Raipur in the

night of 28.09.1993, at about 11:30 p.m., one

person, who was sitting behind the driver, put a

country-made pistol on the temple of the driver and

ordered him to stop the bus. When the bus stopped

four persons already travelling in the bus and four

other persons, who boarded the bus from where it

had stopped, inter alia, started beating the

passengers and robbed them of their belongings. A

shot was also fired at one of the passengers who

sustained injuries. The culprits thereafter escaped

with looted articles. The driver took the bus to the

Police Station, Ambikapur where First Information

Report (FIR) was lodged at about 12:20 a.m. on

29.09.1993. Whereafter the police swung into action,

barricades were put to ensure that culprits do not

escape and, ultimately, it is claimed, in the night of

29.09.1993 itself, Khemraj Singh (PW-5) arrested the

appellant, at about 3:00 a.m., carrying a country-

made pistol, which had five cartridges, two live and

three empty. On 30.09.1993, the appellant was put

to test identification parade (for short TIP) wherein he

was identified by the bus driver Ram Sajeev an

Sharma (not examined) and Khalasi Ainul Khan (not

examined). The other person, who was also there in

the bus, namely, Kamal Singh (the Conductor of the

Criminal Appeal No.1931 of 2019 Page 4 of 17

bus), though was asked to identify the accused, failed

to identify him. Based on the alleged confessional

statement made during investigation, Mohd. Kalam

Ansari was arrested and put to trial along with the

appellant.

Prosecution Evidence

4. Though a number of witnesses were examined

by the prosecution but eye witnesses (i.e., passengers

in the Bus) examined were only three, namely, PW-6,

PW-9 and PW-12. However, none of them had

participated in the TIP of the appellant. PW-6, PW-9

and PW-12 proved commission of dacoity whereas

PW-9 identified the appellant in Court, during the

course of the trial, as the one, amongst those dacoits,

who had put the gun on the temple of the driver. PW-

5 was witness of appellant’s arrest and recovery of

country-made pistol. PW-7 (i.e., the Naib Tehsildar),

who executed the TIP of the appellant, proved the TIP

and PW-8 (i.e., the Additional Tehsildar) proved the

TIP of Mohd. Kalam Ansari.

Trial Court Finding

5. The trial court, inter alia, held that the factum

of dacoity is duly proved; PW -9 identified the

appellant as one of the dacoits who committed the

crime; PW-5 proved recovery of country-made pistol

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from the appellant and, therefore, the appellant is

liable to be convicted. The trial court, however,

acquitted co-accused Mohd. Kalam Ansari.

High Court Finding

6. Aggrieved by the judgment and order of

conviction, the appellant preferred appeal before the

High Court, though without success. Aggrieved by

dismissal of the appeal, the appellant is before us.

7. We have heard the learned counsel for the

appellant; the learned counsel representing the State

of Chhattisgarh; and have perused the records.

Submissions on behalf of Appellant

8. The submission of the learned counsel for the

appellant is as follows:

(i) The prosecution has withheld the best

evidence, namely, the driver of the bus at whom

the gun was pointed and who allegedly identified

the appellant in the TIP. Besides that, neither the

conductor nor the Khalasi (i.e., the Cleaner), who

participated in the TIP, was examined by the

prosecution.

(ii) PW-9 is a police personnel whose presence

in the Bus at the time of dacoity is doubtful

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because, firstly, his papers relating to his

movement were not brought on record and,

secondly, if he was present, there was no reason

not to use him for identification during the TIP.

Even if it is assumed that he was travelling in the

Bus, his non-participation in the TIP renders him

unreliable, more so, because in his testimony he

admits that he had seen the appellant earlier.

(iii) No stolen/ looted article was recovered

either from the possession of the appellant or at

his pointing out.

(iv) The country-made pistol alleged to have

been recovered is not linked to the gun shots

that were allegedly fired with the aid of any

forensic evidence.

(v) The manner in which the appellant is

stated to have been arrested by PW-5 at 3.00

a.m. in the night does not inspire confidence.

Moreover, if the appellant was carrying a loaded

pistol, why he would not use it to effect his

escape, particularly, when PW-5 was alone and

attending nature’s call.

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9. Based on the above submissions, the learned

counsel for the appellant submitted that the trial

court as well as the High Court has accepted the

testimony of the prosecution witnesses without

testing it on the anvil of probability, therefore, the

judgment and order of conviction deserves to be set-

aside.

Submissions on behalf of State

10. Per contra, the learned counsel for the State

submitted that the factum of dacoity is proved

beyond doubt; PW-9 has identified the appellant as

the culprit who pointed the gun at the driver to

ensure that the bus stopped; there is nothing to

indicate as to why PW-9 would falsely implicate the

appellant; the TIP was promptly conducted; PW-7,

the Naib Tehsildar, in whose presence the TIP was

conducted, has proved that in the said parade the

appellant was identified; PW-5 proved that in the

night of the incident, the appellant was arrested

while he was carrying a country-made pistol; and the

forensic examination of the pistol reveals that it was

in a working condition with live cartridges. These

evidences, inter alia, duly proved the involvement of

the appellant in the commission of crime and

therefore, the order of conviction and sentence is

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based on proper appreciation of the evidence on

record and does not call for interference in exercise of

power under Article 136 of the Constitution of India.

Analysis

11. Before analysing the rival submissions, it

would be useful to cull out facts as regards which

there is no dispute. These are:

(i) The incident for which the prosecution

was launched is of dacoity where a running bus,

carrying 35 passengers, was looted by about

eight armed men in the night of 28.09.1993.

However, only two including the appellant were

put to trial.

(ii) No looted article of any kind is stated to

have been recovered either from, or at the

instance of, the appellant or the other accused.

The country-made pistol stated to have been

recovered from the appellant at the time of arrest

is not connected to any empty cartridge, or

bullet, that might have been found at the spot or

extracted from the person injured.

(iii) Neither the FIR nor the statements of

eyewitnesses recorded under Section 161 CrPC

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name the appellant or for that matter any other

accused.

(iv) Though the TIP was carried out with the

aid of Driver, Khalasi (i.e., the Cleaner) and

Conductor of the Bus , none of them was

examined as a witness during trial.

(v) PW-9 is the only witness who identified the

appellant on the dock as one of the dacoits who

participated in the dacoity.

(vi) PW-5 is the only witness of arrest of the

appellant in the night of 29.09.1993.

12. From the facts culled out above, there are just

two pieces of evidence against the appellant, namely,

(a) dock identification by PW-9; and (b) arrest of the

appellant that night with a country-made pistol by

PW-5. We shall deal with each of them separately.

Dock Identification by PW-9 not reliable

13. Before we proceed to test the reliability of the

dock identification by PW-9, it would be apposite to

examine the evidentiary value of the TIP conducted

during investigation to identify the appellant.

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14. A test identification parade under Section 9 of

the Evidence Act, 1872

4 is not substantive evidence

in a criminal prosecution but is only corroborative

evidence. The purpose of holding a test identification

parade during the stage of investigation is, firstly, to

ensure that the investigating agency is proceeding in

the right direction where the accused is unknown

and, secondly, to serve as a corroborative piece of

evidence when the witness identifies the accused

during trial.

5 The evidence of identification merely

corroborates and strengthens the oral testimony in

court which alone is the primary and substantive

evidence as to identity.

6 In Rameshwar Singh v.

State of Jammu and Kashmir

7

, a three-Judge

Bench of this Court succinctly summarized the

evidentiary value of the TIP as under:

“6……. The identification during police

investigation ……. is not substantive

evidence in law and it can only be used for

corroborating or contradicting evidence of

the witness concerned as given in Court.

The identification proceedings …… must

4

Section 9.- Facts necessary to explain or introduce relevant facts. - Facts necessary to explain or

introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in

issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or

fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of

parties by whom any such fact was transacted, are relevant in so far as they are necessary for that

purpose.

5

Umesh Chandra v. State of Uttarakhand, (2021) 17 SCC 616, (paragraph 9); Iqbal and Another v. State of

Uttar Pradesh, (2015) 6 SCC 623 (paragraph 15)

6

Hari Nath and Another v. State of U.P., (1988) 1 SCC 14 (paragraph 19),

7

(1971) 2 SCC 715

Criminal Appeal No.1931 of 2019 Page 11 of 17

be so conducted that evidence with regard

to them when given at the trial, enables

the court safely to form appropriate

judicial opinion about its evidentiary value

for the purpose of corroborating or

contradicting the statement in Court of the

identifying witness.”

Thus, if the witness who identified a person or an

article in the TIP is not examined during trial, the TIP

report which may be useful to corroborate or

contradict him would lose its evidentiary value for the

purposes of identification. The rationale behind the

aforesaid legal principle is that unless the witness

enters the witness box and submits himself for cross-

examination how can it be ascertained as to on what

basis he identified the person or the article. Because

it is quite possible that before the TIP is conducted

the accused may be shown to the witness or the

witness may be tutored to identify the accused. Be

that as it may, once the person who identifies the

accused during the TIP is not produced as a witness

during trial, the TIP is of no use to sustain a n

identification by some other witness.

15. In the instant case, though it was proved by

PW-7 (i.e., the Naib Tehsildar who executed the TIP)

that the TIP for identifying the appellant was

conducted and the appellant was identified by two

out of three witnesses, those three witnesses who

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participated in the TIP of the appellant were not

examined during trial. Thus, the TIP report, which

could have been used to either contradict or

corroborate those witnesses, is of no evidentiary

value. Hence, the only substantive evidence on record

of the case in respect of identification of the appellant

is the dock identification by PW-9.

16. The dock identification by PW-9 does not

inspire our confidence for the following reasons:

(a) PW-9 is a police personnel posted at police

station Prem Nagar. During cross-examination,

on being questioned about his movement papers,

he could not provide a satisfactory explanation

for his movement in that bus.

(b) As per the investigating officer, PW-9’s

statement was recorded on the same day the FIR

was registered. The appellant was also arrested

that very night within few hours of the incident.

Yet, PW-9 was not used for identifying the

accused during the TIP. His non-participation in

the TIP, seriously dents his credibility.

(c) PW-9 in his deposition stated that he had

seen the appellant earlier on more than one

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occasion. If that was so, there was all the more

reason for the investigating officer to use him in

the TIP. More so, when, as a police personnel, he

was under the control of the prosecution.

17. Besides that, when you withhold the best

evidence such as that of the driver, conductor and

cleaner of the Bus, who all participated in the TIP,

without giving good reason as to why they were not

produced or summoned, the dock identification by a

solitary witness, that too a police personnel, fails to

inspire our confidence to sustain conviction of the

appellant for the offence punishable under Section

395 read with Section 397 of the IPC, particularly, in

absence of corroborative evidence of recovery of any

looted article either from, or at the instance of, the

appellant.

Manner in which arrest has been effected is

doubtful

18. As regards the manner in which the appellant

is stated to have been arrested, prosecution case

rests on the testimony of PW-5. PW-5 is a police

constable. According to him, while he was going to

attend nature’s call on 29.09.1993, at around 3:00

a.m., he saw the appellant hiding in the bushes near

a public pond, probably to evade arrest, as the police

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had been on the look-out for the dacoits. PW-5 says

that the appellant tried to escape by threatening to

use his country made pistol, but he managed to

overpower and arrest the appellant; and later he

along with the pistol was handed over to the police

station in-charge.

19. The prosecution evidence indicates that

country-made pistol had two live cartridges and three

empty cartridges.

20. The appellant had denied the factum of arrest

in the manner alleged and had also produced defence

witnesses, but neither the trial court nor the High

Court discussed the defence evidence.

21. Ordinarily, if a person is carrying a loaded

weapon, he would use the same to evade arrest

unless the person is completely outnumbered. Here,

the appellant is stated to have been arrested by PW-

5, who was single and about to attend nature’s call.

Moreover, there is no injury on either side to suggest

that resistance was offered at the time of arrest.

Such a prosecution story is too convenient to be

acceptable as true. More so, when it had support

from police witnesses only. Therefore, the court

should have been circumspect so as to look for

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corroborative pieces of evidence. This we say so,

because it is not uncommon for the police to be

under pressure to quickly resolve a case having

implications on public order and therefore, look for

soft targets.

22. Here, there is neither recovery of any looted

article from the appellant or at his instance, nor the

country-made pistol was linked to any empty

cartridge recovered from the Bus or the scene of

crime. There is also no injury report to substantiate

that the appellant offered resistance before he was

apprehended. In absence of any such corroborative

evidence, it would be too naive on our part to accept

the prosecution story regarding the manner in which

the appellant is stated to have been arrested.

23. Besides above, from paragraph 34 of the trial

court judgment, we could notice that the seizure

memo (Exb. P/11) of country made pistol, etc. was

prepared at 11:45 hours on 29.09.1993, which is

about nine hours after the appellant was allegedly

arrested. Such a long delay in producing the seized

articles at the police station for preparing seizure

memo, in absence of cogent explanation, dents the

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credibility of prosecution story regarding the arrest of

the appellant at about 3 a.m. on 29.09.1993.

24. Once we doubt the manner in which the

appellant is stated to have been arrested, the

recovery of country-made pistol alleged to have been

made at the time of arrest falls to the ground.

Besides that, from paragraphs 33 and 34 of the trial

court judgment, it appears that the country made

pistol produced during trial did not match with the

description of the seized weapon in the seizure

memo. This discrepancy was casually brushed aside

by observing that it may be due to rusting. That

apart, the seized article(s) were sent for forensic

examination on 22.06.1994, as would appear from

paragraph 34 of the trial court judgment. All these

circumstances, taken cumulatively, seriously dent

the credibility of the prosecution case qua recovery of

country made pistol from the appellant at 3 a.m. in

the night of 29.09.1993.

25. In the light of the analysis above, we are of

the view that the prosecution has failed to prove the

guilt beyond reasonable doubt. The appellant is

therefore, entitled to the benefit of doubt. The appeal

is allowed. The judgment and order of the trial court

and the High Court are hereby set -aside. The

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appellant is acquitted of the charge for which he was

tried. The appellant is reported to be on bail. He need

not surrender. His bail bond is discharged.

26. Let a copy of this order be sent to the

concerned court.

…….…………. ......................................J.

(PAMIDIGHANTAM SRI NARASIMHA )

……………… ......................................J.

(MANOJ MISRA)

New Delhi;

February 14, 2025