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CASE NO.: Appeal (crl.)  174 of 2003

PETITIONER: Pramod Mandal

RESPONDENT: State of  Bihar

DATE OF JUDGMENT: 17/09/2004

BENCH: P. VENKATARAMA REDDI & B.P. SINGH  

JUDGMENT: JUDGMENT

B.P. SINGH, J.

In this appeal by special leave the sole appellant is  Pramod Mandal who alongwith six others was put up for trial  before the 6th Additional Sessions Judge, Bhagalpur in Sessions  Case No. 739 of 1990 charged of the offence under Section 396  IPC.  It is not necessary to refer to the charges framed against  the remaining accused since they are not appellants before us.   The trial court by its judgment and order of April 24, 1995  found the appellant guilty of the offence under section 396 IPC  and sentenced him to undergo rigorous imprisonment for 10  years.  The appellant preferred Criminal Appeal No.125 of  1995 before the High Court of Judicature at Patna which was  dismissed by the High Court by its impugned judgment and  order of April 5, 2002.  

       We may only observe that of the seven persons put up for  trial before the learned 6th Additional Sessions Judge one  Deepak Yadav was given the benefit of doubt and acquitted.   One Parsuram Paswan was sentenced to life imprisonment both  under sections 396 and 302 IPC, while Rajesh Kumar Yadav  was sentenced to life imprisonment under section 396 IPC.  The  remaining accused were sentenced to 10 years rigorous  imprisonment under section 396 IPC.  The appeals preferred by  the remaining accused have also been disposed of by the High  Court by the impugned  judgment.   

       The case of the prosecution is that the informant Dr.  Balmiki Singh is a resident of Mohalla Sahebganj, Nathnagar.   On January 13, 1989 at 2010 hours he lodged a first  information report at P.S. Nathnagar in which he stated that on  that date at about 7.30 p.m. while he was watching the  television, other members of the family were in the house.  His  son Priyadarshi Ashok, PW-1 had gone to the fields and had not  returned.  While he was watching the television he saw that  three persons entered his house with concealed faces.  Of them  two were armed with pistols and they demanded the keys from  him.  He could identify accused Parsuram Paswan by his voice,  stature and eyes.  He then heard the cries of his daughter-in-law  coming from another room and when he rushed to her room he  found that two other persons were threatening her, of whom one  was armed with country made pistol.  His daughter-in-law  handed over to them whatever ornaments she was wearing at  that time.  Two other persons then entered the room who picked  up some articles.  Those two persons had not concealed their  faces.  Some other dacoits also entered the room of his

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daughter-in-law and started making demands from her.  A  relative of his, namely Rajiv Kumar Mishra, PW-4, who was  residing with him, told his daughter-in-law to handover the  keys to the dacoits.  Thereafter the dacoits asked Rajiv to open  the almirah but he was unable to do so.  One of the dacoits  threatened to kill him if he did not open the almirah.  Seeing  this, the informant rushed and caught that hand of the dacoit in  which he was holding the pistol and pushed him towards the  verandah.  Thereafter the informant’s daughter, Rani Purnashri  started raising alarm.  Some of the dacoits were in the courtyard  of the house and he recognized one of them as Rajesh Yadav  who was armed with a pistol.  Rajesh Yadav exhorted  Parshuram to fire and thereafter Parshuram fired hitting his  daughter Rani Purnashri.  The dacoits also exploded bombs.   The informant claimed to have recognized one of the  miscreants as Deepak Yadav who assaulted him on his back  with the barrel of his pistol as a result of which his grip over  one of the dacoits, whom he had caught, loosened and that  dacoit slipped away.  Thereafter the dacoits fled away.  His  daughter Rani Purnashri succumbed to her injuries.  By this  time his son Priyadarshi Ashok, PW-1 had also come.  He  mentioned in his report that Aruni, Rajiv Kumar Mishra, PW-4  and Madan Sriharsha, PW-2 were also injured.  In the report he  also gave descriptions of other dacoits whom he had not  recognized.

       A motive was suggested in the report itself.  The  informant stated that he had a dispute with Rajesh Yadav and  Deepak Yadav over the demolition of a ridge in his field. An  incident took place in August, 1988 when he had been  threatened by them.                         PW.11 Indradeo Singh the investigating officer was  examined by the prosecution.  Dr. Kailash Jha, PW-6 was the  doctor who had conducted the post-mortem examination on the  body of the deceased.  PWs-8, 9 and 10 were the three  Magistrates who conducted Test Identification Parades on  different dates.  Apart from these witnesses, several eye  witnesses were examined, namely PW-1, Priyadarshi Ashok,  son of the informant, PW-2, Madan Sriharsha, another son of  the informant, PW-3 Vijayshree, daughter of the informant and  PW-4 Rajiv Kumar Mishra, relative of the informant.  PW-5,  Dr. Balmiki Singh is the informant himself.  All the witnesses  have supported the case of the prosecution and there is nothing  in the evidence to discredit them.  The trial court as well as the  High Court have carefully scrutinized the evidence of these  witnesses and have concluded that the prosecution had proved  that a dacoity took place in the house of the informant at about  7.30 p.m. on January 13, 1989 and in the course of the  commission of the dacoity the daughter of the informant was  shot dead by one of the dacoits.   

       Learned counsel for the appellant did not even attempt to  persuade us to hold that the prosecution case was false and such  an occurrence had not taken place at all.  He rightly drew our  attention to the evidence on record in support of the defence  that on the date of occurrence there was no electricity supply in  that area between 6.55 p.m. and 7.55 p.m. and, therefore,  identification of the appellant in electric light was not possible,  and that there was no light from any other source which could  have made his identification possible.  It was further submitted  that the conviction of the appellant is based on the sole  identification by PW-4 Rajiv Kumar Mishra.  It is not safe to  convict the appellant on the basis of his identification.  

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       We shall first consider the evidence adduced by the  defence to establish that on the date of occurrence between 6.55  p.m. and 7.55 p.m. there was no supply of electrical energy to  Mohalla Sahebganj in Nathnagar.  To prove this fact DW-1  Naval Kishore Yadav was examined.  He was a correspondence  clerk in the Area Electricity Board, Nathnagar, Bhagalpur.  He  produced a register and claimed that supply of electricity to  different areas was noted in the said register by the Switch  Board Operator, Arun Kumar Sah.  From the register it  appeared that from 6.55 p.m. to 7.55 p.m. on the date of  occurrence there was no supply of electricity to the area in  question.  The entry referred to by him was in the handwriting  of Mr. Arun Kumar Sah.  He further stated that the entry had  been certified by the Assistant Engineer Shri B.K. Srivastava.   This witness admitted in cross-examination that the entry sheets  were not bound.  He also admitted that the register did not show  in which areas electricity was being supplied.  

       The High Court has attached no weight to the evidence of  this witness.  He was neither the author of the entry in the  register nor was he the certifying officer.  The Switch Board  Operator who is stated to have made the entry and the Assistant  Engineer who is stated to have certified that entry were not  examined.  There was overwhelming evidence of witnesses to  the effect that there was supply of electricity at the time when  the occurrence took place.  Indeed PW-5 stated that he was  watching the television when the dacoits entered his house.   The High Court, therefore, rejected the evidence of DW-1 and  held on the basis of the evidence on record that there was  supply of electricity at the time when dacoity was committed in  the house of PW-5 and the witnesses, therefore, had sufficient  light and opportunity to identify the dacoits.  

       The next question is whether the evidence of PW-4 Rajiv  Kumar Mishra must be accepted.  The courts below have  concurrently found Rajiv Kumar Mishra, PW-4 to be a reliable  and trustworthy witness.  It has been noticed that Rajiv Kumar  Mishra had suffered as many as 5 injuries in the course of the  occurrence, three of them being incised injuries and the  remaining two were abrasions.  This has been proved by Dr.  Mirtunjay Kumar, PW-7 who examined PW-4.  It will thus  appear that PW-4 was in the forefront trying to defend the  members of the family from the onslaught of the dacoits.  It is  in that process that he was severely injured by the dacoits.   Obviously he had sufficient opportunity to notice the features of  the dacoits from close quarters.  He has been mentioned in the  first information report as the person who had advised the  informant’s daughter-in-law to handover the keys to the dacoits.   It is also stated that thereafter the dacoits wanted him to open  the almirah and when he was not able to open the almirah, he  was threatened with death by the dacoits.  We are, therefore,  quite clear in our mind that Rajiv Kumar Mishra, PW-4, being a  young man tried his level best to resist the dacoits to the extent  possible in the circumstances and in that process he was  severely assaulted.

       So far as the appellant is concerned, PW-4 had a special  reason to remember his features.  He deposed that he identified  the dacoits in the light of electric bulb.  He further deposed that  Tuntun Choudhary had assaulted him on his left leg.  Similarly  the appellant Pramod Mandal had tried to assault him with an  iron rod.  It also appears from the record that this witness had  stated these facts before the Judicial Magistrate who conducted  the Test Identification Parade and this fact had been noted by  the Magistrate in the Identification Chart.  It cannot, therefore,

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be said that the role assigned to the appellant by PW-4 was an  after thought.   

       It was then submitted that the appellant was arrested on  January 17, 1989 and he was put up for Test Identification  Parade on February 18, 1989.  Thus there was a delay of one  month in holding the Test Identification Parade and, therefore,  the identification by witnesses in such an identification parade  belatedly held was not reliable, particularly when there was  only one identifying witness against the appellant.

       Shri B.B. Singh, learned counsel for the State submitted  that the evidence in this case discloses that the witnesses had  ample opportunity to see the accused in electric light since the  place of occurrence was the house of PW-5.  They had  abundant opportunity to notice their features from close  quarters and, therefore, it could not be said that only a month  after  the occurrence their  memory  faded  to such an extent  that they could not have identified the culprits on account of  lapse of time.  Secondly it is submitted that in this case, having  regard to the evidence on record, the quality of evidence of PW- 4 is such that even if the Test Identification Parade was not  held, his identification in court could be acted upon.  Lastly he  submitted that there is no complaint by the appellant that he  was either shown to the witness before the holding of the Test  Identification Parade or that there was any irregularity in the  holding of the Test Identification Parade.   He further  emphasized the fact that having regard to the nature of  occurrence, it was not as if the witnesses had only a fleeting  glimpse of the accused.  The evidence on record proves that the  occurrence continued for about 25 minutes and, therefore, the  witnesses had  ample  opportunity to notice the physical  features of the dacoits which must have got imprinted in their  memories.   So far as PW-4 is concerned, he submitted that this  witness had deposed in court, and had also earlier stated before  the Magistrate conducting the Test Identification Parade, that  the appellant Pramod Mandal had attempted to assault him with  an iron rod.  This statement was not even challenged in his  cross-examination.   

       The parties have relied upon the decisions of this Court  which we shall consider hereafter.  

       Learned counsel for the appellant placed considerable  reliance on the decisions of this Court in 1981 (Supp.) SCC 28 :  Wakil Singh and others  vs.  State of Bihar.  In that case the trial  court had acquitted the appellants but the High Court on appeal  reversed the order of acquittal and convicted them.  The  judgment of the High Court was impugned before this Court.   Wakil Singh, the first appellant in the appeal, had been  convicted by the High Court on the basis of the testimony of  PW-9 who was the sole identifying witness.  This Court noticed  that the Test Identification Parade was held about 3 = months  after the dacoity and observed that in view of such a long lapse  of time it is not possible for a human being to remember the  features of the accused and he is, therefore, very likely to  commit mistakes.  In these circumstances unless the evidence is  absolutely clear, it would be unsafe to convict the accused for  such a serious offence on the testimony of a single witness.   This Court also noticed the fact that though PW-9, the  identifying witness was present on September 4, 1965 when a  Test Identification Parade was held, he was not asked to  identify the appellant, but the witness identified the accused  four days later.  This circumstance also threw some doubt on  the complicity of the appellant.  Moreover it was observed that

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since the High Court was reversing an order of acquittal it  failed to consider the fact that there being only one witness who  identified the accused concerned, the view taken by the trial  court could not be said to be not a reasonable possible view.   This Court, therefore, upheld the order of acquittal.                 

       It will thus be observed that this Court in the aforesaid  judgment has not laid down an invariable rule that if Test  Identification Parade is held after 3 = months or if there is only  one identifying witness, "it would be unsafe to convict the  accused" because the court prefaced this observation by the  words "In these circumstances unless the evidence is absolutely  clear".  It is well settled that it is open to a court of fact to  assess the quality of evidence and to determine whether the  evidence on record justifies a conviction.  If the court comes to  the conclusion that the evidence does not prove conclusively  the guilt of the accused the court may order his acquittal.  Such  an order of acquittal cannot be set aside by a court sitting in  appeal unless it records a finding that the view taken by the trial  court was not a possible reasonable view of the evidence on  record.  In Wakil Singh’s case  this Court found that the view of  the trial court could not be said to be not a reasonable possible  view and, therefore, interference by the High Court was not  justified.  It also noticed the fact that the identifying witness  though present was not asked to identify on the first day, but  was asked to do so on the fourth day.  Moreover, the   Test Identification Parade was held after 3-1/2 months.  These  features which existed in the case of Wakil Singh (supra) are  absent in the instant case and, therefore, the said decision is  clearly distinguishable.   

       Learned counsel for the appellant also relied upon the  decision of this Court in (1987) 3 SCC 331 : Subhash and Shiv  Shankar  vs.   State of Uttar Pradesh,  wherein this Court held  that a long interval of nearly 4 months before the Test  Identification Parade was held, made it doubtful whether inspite  of this interval of time the witnesses were able to have a clear  image of the accused in their minds and identify him correctly  at the Test Identification Parade.  In the instant case the Test  Identification Parade was held only a month after the  occurrence and not after four months as in the case of Subhash  and Shiv Shankar (supra).  The delay in the instant case is not  such as would cast a doubt on the ability of the witnesses to  identify the accused.   

       Learned counsel for the appellant also relied upon the  decision of this Court in (1982) 3 SCC 368 : Soni  vs.  State of  Uttar Pradesh.  The said judgment is a brief judgment where on  the facts of the case the court doubted the identification by the  witnesses in view of the delay in holding of the Test  Identification Parade.  However, this judgment does not lay  down any principle of law which may be applied to the facts of  the present case.  It is a decision on the facts of the case and  cannot be treated as a binding precedent.  In fact the said  judgment was noticed by this Court in (2003) 3 SCC 569 : Anil  Kumar  vs.  State of Uttar Pradesh and this Court after  extracting the relevant part of the judgment observed :-

"It is to be seen that apart from stating  that delay throws a doubt on the  genuineness of the identification parade  and observing that after lapse of such a  long time it would be difficult for the  witnesses to remember the facial  expressions, no other reasoning is given

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why such a small delay would be fatal."               

       Learned counsel for the State submitted that in the instant  case there was no inordinate delay in holding the Test  Identification Parade so as to create a doubt on the genuineness  of the Test Identification Parade.  In any event he submitted that  even if it is assumed that there was some delay in holding the  Test Identification Parade, it was the duty of the accused to  question the investigating officer and the Magistrate if any  advantage was sought to be taken on account of the delay in  holding the Test Identification Parade.  Reliance was placed on  the judgment of this Court in (1973) 3 SCC 896 : Bharat Singh   vs.  State of Uttar Pradesh.  In the aforesaid judgment this  Court observed thus :-

       "In Hasib v. State of Bihar AIR  1972 SC 283;  it was observed by the  Court that identification parades belong  to the investigation stage and therefore it  is desirable to hold them at the earliest  opportunity.  An early opportunity to  identify tends to minimize the chances of  the memory of the identifying witnesses  fading away due to long lapse of time.   Relying on this decision, counsel for the  appellant contends that no support can be  derived from what transpired at the  parade as it was held long after the arrest  of the appellant.  Now it is true that in the  instant case there was a delay of about  three months in holding the identification  parade but here again, no questions were  asked of the investigating officer as to  why and how the delay occurred.  It is  true that the burden of establishing the  guilt is on the prosecution but that theory  cannot be carried so far as to hold that  the prosecution must lead evidence to  rebut all possible defences.  If the  contention was that the identification  parade was held in an irregular manner or  that there was an undue delay in holding  it, the Magistrate who held the parade  and the Police Officer who conducted the  investigation should have been cross- examined in that behalf".     

In the instant case we find that the defence has not imputed any  motive to the prosecution for the delay in holding the Test  Identification Parade, nor has the defence alleged that there was  any irregularity in the holding of the Test Identification Parade.   The evidence of the Magistrates conducting the Test  Identification Parade as well as the Investigating Officer have  gone unchallenged.  Learned counsel for the State is, therefore,  justified in contending that in the facts and circumstances of  this case the holding of the Test Identification Parade, about  one month after the occurrence, is not fatal to the case of the  prosecution as there is nothing to suggest that there was any  motive for the prosecution to delay the holding of the Test  Identification Parade or that any irregularity was committed in  holding the Test Identification Parade.  

       Learned counsel for the State has also relied upon the

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decision of this Court in (2003) 3 SCC 569 : Anil Kumar  vs.   State of Uttar Pradesh wherein the Test Identification Parade  was held 47 days after the arrest of the appellants.  This Court  after considering several decisions of this Court including the  decisions in (1994) 1 SCC 413 : Brij Mohan  vs.  State of  Rajasthan ; (2001) 3 SCC 468 :  Daya Singh  vs.  State of  Haryana and (2000) 1 SCC 471 : State of Maharashtra  vs.   Suresh  concluded that since the identifying witness was  attacked by the assailants including the appellant and another,  he had a clear look at the assailants.  When his younger brother  came to save him he was killed by the assailants while the  witness also received serious injuries.  These were  circumstances which would impress upon the mind of the  witness the facial expressions of the assailants and this  impression would not diminish or disappear within a period of  47 days.  Similar was the case of the father and the mother of  the identifying witness who had seen the assailants attacking  their sons and one of their sons getting killed.  In their memory  also the facial expressions of the assailants will get embossed.   A mere lapse of 47 days would not erase the facial expressions  from their memory.   

       It is neither possible nor prudent to lay down any  invariable rule as to the period within which a Test  Identification Parade must be held, or the number of witnesses  who must correctly identify the accused, to sustain his  conviction.  These matters must be left to the Courts of fact to  decide in the facts and circumstances of each case.  If a rule is  laid down prescribing a period within which the Test  Identification Parade must be held, it would only benefit the  professional criminals in whose cases the arrests are delayed as  the police have no clear clue about their identity, they being  persons unknown to the victims.  They therefore, have only to  avoid their arrest for the prescribed period to avoid conviction.   Similarly, there may be offences which by their very nature  may be witnessed by a single witness, such as rape.  The  offender may be unknown to the victim and the case depends  solely on the identification by the victim, who is otherwise  found to be truthful and reliable.  What justification can be  pleaded to contend that such cases must necessarily result in  acquittal because of there being only one identifying witness?   Prudence therefore demands that these matters must be left to  the wisdom of the courts of fact which must consider all aspects  of the matter in the light of the evidence on record before  pronouncing upon the acceptability or rejection of such  identification.           Lastly in (2003) 5 SCC 746 : Malkhansingh and others   vs.  State of Madhya Pradesh a three Judge Bench of this Court  of which one of us (B.P. Singh, J.) was a Member, after  considering various decisions of this Court observed thus :-    

"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

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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 of  Criminal Procedure 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 of Criminal  Procedure.  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".

       Learned counsel for the State submitted that having  regard to the principles laid down in the aforesaid decisions it  was open to him to contend that even in the absence of the Test  Identification Parade the conviction of the appellant would be  fully justified on the basis of the evidence of PW-4 alone who  identified him in court.  In this case, however, his identification  in court is corroborated by his identification in the Test  Identification Parade.   

       We find considerable force in the submission advanced  by the learned counsel for the State.  This is not a case where  the testimony of PW-4 in court is not corroborated by an earlier  identification in test identification proceeding.   Since we have  found no irregularity or unfairness in the holding of the Test  Identification Parade, it must be held that the evidence of PW-4  is amply corroborated by the result of the test identification  proceeding.  Moreover we have found that the occurrence did  take place in the house of PW-5.  PW-4, is an eye witness,  being a relative of PW-5, residing with him.  There was  sufficient light to enable the witnesses to identify the dacoits.   The presence of PW-4 cannot be disputed because he bore the  brunt of the attack by the dacoits having suffered three incised  wounds and two other injuries.  No reason has been suggested  why this witness should have falsely implicated the appellant.   The dacoity took place for about 25 minutes and PW-4, being  in the forefront of the defence, had ample opportunity to notice  the appearance and physical features of the culprits.  So far as  the appellant is concerned, PW-4 categorically stated that he  had attempted to hit him with an iron rod.  This fact he also

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stated before the Magistrate who conducted the Test  Identification proceeding.  We, therefore, find no reason to  suspect the truthfulness and credibility of this witness.  He  appears to be a witness on whom the court can place implicit  reliance.  The courts below have found his evidence to be  reliable after critical scrutiny of his testimony.  The traumatic  experience of that fateful day in which a young girl lost her life  within his view, must have left the faces of the assailants  imprinted in his memory which certainly would not have  diminished or got erased within a period of only 30 days.  There  is, therefore, no reason to doubt either the genuineness of the  Test Identification proceeding or the veracity of the witness.   

       We, therefore, find no merit in this appeal and the same  is accordingly dismissed.