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CASE NO.: Appeal (crl.)  489 of 2008

PETITIONER: Md. Kalam @ Abdul Kalam

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 14/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    489 OF 2008 (Arising out of SLP (Crl.) No. 4178 of 2006)

Dr. ARIJIT PASAYAT, J

1.      Leave granted. 2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Rajasthan High Court, Jaipur  Bench. Challenge in the appeal before the High Court was to  the judgment and order dated 10.4.2002 passed by learned  Additional Sessions Judge (Fast Track) Class II, Jaipur. By the  said judgment, the appellant was convicted for offence  punishable under Section 395 of the Indian Penal Code, 1860  (in short ’IPC’). He was sentenced to undergo rigorous  imprisonment for 10 years and to pay a fine of Rs.1,000/- with  default stipulation.  

3.      Background facts in a nutshell are as follows:         In the intervening night of 8-9th May, 1994 when Vishwas  (PW-3) and his wife Renu Jain (PW-1) were sleeping in their  house situated in Mauji Colony, Malviya Nagar, Jaipur, five  persons entered the house and tied their servant Chaturbhuj  who was sleeping in the basement of the house. Thereafter,  the accused also tied the mouth, hands and legs of Vishwas  Jain (PW-3) and his wife Renu (PW-1) and then bolted them  inside the bathroom and having threatened them at the point  of pistal and knife, the accused looted the gold and silver  ornaments, coins and cash. The miscreants stayed in their  house for about an hour. Complainant Vishwas managed to  come out of the bathroom through a window and then  telephonically informed the police personnel of Police Station,  Malviya Nagar, Jaipur. On receiving the information, the police  party reached the house of complainant, where complainant  submitted a written report, whereupon a case for offence  under Section 395 IPC was registered.  

       At the very outset it may be stated that case was  registered against five accused. The investigating agency  arrested three accused, namely, Mohd. Babul, Mohd. Jalal  and Mohd. Ansari and after completion of investigation  submitted charge sheet against them for offence under Section  395 IPC. At the conclusion of trial, the leaned trial Judge vide  its judgment dated 31.3.1997 held the accused appellant  guilty and accordingly convicted and sentenced them. These  three accused challenged their conviction by filing appeals  before the High Court. Vide judgment dated 13.4.1998 the  High Court dismissed the appeals of Mohd. Jalal and Mohd.

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Babul and maintained their conviction under Section 395 IPC  and partly allowed the appeal of accused Ansari by altering his  conviction from Section 395 IPC to Section 411 IPC.  Investigation as against the appellant and co-accused Saidulla  was kept pending under Section 173(8) of the Code of Criminal  Procedure, 1973 (in short the ’Code’). Appellant Mohd. Kalam  was arrested on 27.3.1998. Co-accused Saidulla was also  arrested but he absconded during trial and is still absconding.

       After arrest, Test Identification Parade was conducted  and after completion of investigation, police  submitted charge  sheet against the appellant.   

       The basic challenge before the High Court was to the  possibility of identification. With reference to the statement of  Renu Jain (PW-1) and Vishwas Jain (PW-3) it was contended  that there was possibility of the appellant having been shown  to the complainant and  his wife. It was  stated that the Test  Identification Parade (in short ’TI Parade’) was done after a  period of over 7 days.  High Court did not accept the plea. It  held that the trial Court had analysed this aspect. The High  Court also considered the evidence of PWs 1 and 3 and came  to hold that it was crystal clear that PW-3 had ample  opportunity to identify the appellant. It was also noted that the  said witness was believed in respect of the identification of  three other accused persons who had earlier faced trial and  had been convicted for offence punishable under Section 395  IPC and on appeal their conviction had been upheld by the  High Court. The appeal was accordingly dismissed.

4.      Learned counsel for the appellant submitted that only on  the basis of identification by PW-3 the conviction should not  have been recorded. It was pointed out that PW-1 had  accepted that his wife, PW-1 had not gone for the  identification.

5.      Learned counsel for the respondent-State supported the  judgment of the trial Court.  

6.      The TI Parade was done on 3.4.1998, the accused was  arrested on 27.3.1998 and on 28.3.1998 the accused was  produced by the SHO at the residence of Additional Chief  Judicial Magistrate No.6 and prayer was made for police  custody remand. On the application for remand, the  Magistrate allowed the police custody till 31.3.1998. On  31.3.1998 the SHO again produced the appellant before the  Magistrate and on both occasions the Magistrate recorded that  the accused was produced ’Baparda’.  The TI Parade was held  on 3.4.1998 and the appellant and other accused were  correctly identified by PW-3. The evidence of Shri Ratish  Kumar Garg (PW-12) the Judicial Magistrate, First Class,  Jaipur shows that on 3.4.1998 he was working as Judicial  Magistrate and on the direction of the Chief Judicial  Magistrate, Jaipur the accused-appellant  alongwith others  were brought for the TI Parade. Vishwas Jain (PW-3) correctly  identified the appellant. It is also specifically stated in his  evidence  that it was not correct to say that the accused  "might have told to him that accused was shown to the  witness earlier."

7.      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

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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.  8.      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 Indian Evidence Act, 1872 (in  short 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 (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).  9.      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

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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."  

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."  

11.     In Harbhajan 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

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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."  

12.     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.  13.     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  demeanor 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.  14.     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  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."  

15.     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

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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.  16.     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  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."                           

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17.     These aspects were also highlighted in Malkhansingh  and Others v. State of M.P. (2003 (5) SCC 746) and Munshi  Singh Gautam (dead) and Ors. v. State of M.P. (2005 (9) SCC  631).

18.     In view of the evidence which the trial Court and the High  Court have analysed and the identification by PW-3 in the TI  Parade, there is no infirmity in the conclusions of guilt of the  accused. The appellant’s conviction is accordingly maintained.  The sentence also does not warrant interference.   

19.     The appeal is without merit and is dismissed.