SUPREME COURT OF INDIA
Heera and Another
Vs
State of Rajasthan
(Arijit Pasayat and D. K. Jain, JJ)
Appeal (Crl.) 1307 of 2006
20.06.2007
JUDGMENT
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 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. Â
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  . 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 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  Vaikuntam Chandrappa and others
v. State of Andhra Pradesh  , Budhsen and another v. State of U.P.
 and Rameshwar Singh v. State of Jammu and Kashmir  .
8. In Jadunath Singh and another v. The State of Uttar Pradesh  , 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 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  , 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. Â 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  8
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  , 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 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  , 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  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  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 Â
and State of H.P. v. Lekh Raj  , 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 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. ( Â .
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.