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CASE NO.: Appeal (crl.)  13 of 2007

PETITIONER: Amitsingh Bhikamsing Thakur                             ..Appellant

RESPONDENT: State of Maharashtra                                    ..Respondent

DATE OF JUDGMENT: 05/01/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (CRL.) No.1114 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

Appellant calls in question legality of the judgment  rendered by a Division Bench of the Bombay High Court  Aurangabad Bench.  By the impugned judgment, the High  Court dismissed four appeals which arose out of a common  decision against them. All four accused before the High Court  were tried by learned Additional Sessions Judge, Ahmad  Nagar.  Learned trial judge had held all the four accused  persons to be guilty of offences punishable under Sections  396, 506, 341, 379 read with Section 120 B of the Indian  Penal Code, 1860 (in short the ’IPC’) and sentenced each of  them to suffer life imprisonment and to pay a fine of  Rs.3,000/- with default stipulation in respect of conviction  relatable to Section 396 IPC read with Section 120 B IPC.   Learned trial judge was of the view that offence relatable to  Sections 506 and 341 IPC is covered by the main offence and  no separate sentence was required to be passed.  So far as  offence relatable to Section 379 read with Section 120 B IPC is  concerned, each of the accused persons was sentenced to  suffer two years rigorous imprisonment and a fine of  Rs.1000/- with default stipulation.  Accused No. 4 i.e. present  appellant alone was found guilty of offence punishable under  Section 5 read with Section 27 of the Arms Act, 1950 ( in short  the ’Arms Act’) and was further sentenced to undergo 5 years  rigorous imprisonment and to pay a fine of Rs.3,000/- with  default stipulation.  It was also recorded that offence under  Section 3 read with Section 25(1-B) of the Arms Act is covered  under Section 5 read with Section 27 of the said Act and  therefore, no separate sentence was passed.  

Challenge to the judgment before the High Court in the  four appeals did not yield any relief.

The accusations filtering out unnecessary details which  led to the trial of the four accused persons are essentially as  follows:

The incident in question took place on 1.5.1999 at about  8.15 p.m.  Complainant Abhijit Dhone (PW-1) is an eye

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witness of the same and therefore, criminal law was set into  motion by the complaint lodged by said Abhijit at Topkhana  Police Station, Ahmed Nagar, on the same day at about 9 p.m.   Complainant Abhijit was working with the victim  Santoshkumar Kirjichand Bakliwal (hereinafter described as  ’deceased’) in his shop of gold and silver situated at Ganj  Bazaar, Ahmednagar, since about 15 to 20 days prior to the  incident.  His working hours started around 9 a.m.   He  alongwith his master Santoshkumar used to come to the shop  and used to have break in the afternoon.  The shop used to be  closed at about 8 p.m. and the two used to return home some  times by rickshaw and some times on feet.  It was the routine  of Santoshkumar to bring home the daily earnings in a  chocolate coloured cloth bag at the end of every day.

On 1.5.1999 at the end of the day at about 8 p.m.  Santoshkumar collected the daily earnings in the chocolate  coloured bag.  The master and complainant closed the shop  and started home on feet.  At about 8.15 p.m. they were  walking in front of hospital of Dr. Deshpande, which is near  the residence of the master.  A vehicle overtook them and  halted by going little ahead.  The pillion rider jumped from the  vehicle, approached the complainant and his master and  demanded the money bag.  The master gripped the bag with  more firmness.  The offender again angrily demanded the bag  in threatening language.  The threat was followed by the  offender drawing out a pistol, which was kept underneath his  shirt and near his stomach.  He aimed the pistol at the  master.  Even upon complainant trying to see the registration  number of the vehicle, he was threatened by the offender and  a bullet was fired at the master at his chest from a close  distance.  The assailant immediate jumped on the M-80  motorcycle and the motorcycle fled away in the direction of  Kothla Bus stand.

Inspite of bullet injury to the chest, the deceased ran  towards residence, but dashed against the window and fell  down.  His relative Sanju came out from the hosue and took  him to the hospital of Dr. Deshpande.  As Dr. Deshpande was  not available in the hospital, he was shifted to civil hospital.   At this juncture, complainant waited at the residence of the  master.

In the complaint, complainant stated that he is not able  to give the registration number of motorcycle, but the person  who fired at his master was slim of about 5ft. height, who had  combed his hair to his right side and had no grown beard or  mustache.  He was wearing white shirt and black pant and he  was of mild black complexion.  The driver of the M-80  motorcycle was also of mild black complexion and had worn  chocolate coloured shirt and black pant.  The complainant has  specifically recoded that if these two persons are shown to him  he would be in a position to identify them.

The complaint was investigated and charge-sheet filed in  the Court of Judicial Magistrate, Ahmed Nagar, was registered  as RTC No.242 of 1999 and on committal by order dated  21.8.1999, it was registered as Sessions Case No. 150/1999.

There is another story in relation to the vehicle used in  the commission of above referred offence, which comes out  through evidence of Sk. Lalan (PW-6).  He is owner of Bajaj M  80 motorcycle registration No.MH-16/G-5308.  According to  Sk. Lalan that was stolen on 1.5.1999 some time between 10  A.M. to 5.30 p.m. from the location where it was parked. A

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complainant was registered by Sk. Lalan.  According to said  complaint, on 1.5.1999 at about 10 a.m., he came to his shop  in Ganjbazar area on said Bajaj M-80 motorcycle and he  parked it in front of residence of Vijay Verma.  He removed the  plug cap of the same.  He worked in the shop upto 5.30 p.m.  and thereafter came to the location where motorcade was  parked for the purpose of going to residence.  The vehicle was  missing and enquiries to people in the vicinity yielded no  results.  Being convinced that vehicle was stolen, he reported  the matter to Kotwali Police Station on 2.5.1999 at 2.45 hours,  which was registered as Crime No. 118/1999 u/s 379 IPC.

Investigation of this complaint by Sk. Lalan culminated  into filing of chargesheet in the Court of CJM, Ahmed Nagar,  on 28.6.1999.  The same was registered as RTC No. 194/1999.   This case was also committed to the Court of Sessions on  7.2.2000, whereafter it was registered as Sessions Case No.  18/2000 and ultimately it was amalgamated with Sessions  Case No. 150/1999.  The two Sessions Cases were so tried  after amalgamation only after amending the charge.  This was  because theft of the vehicle was taken as part and parcel of  the conspiracy, since the vehicle is used ultimately for  committing the main offence i.e. threatening the complainant  to deliver the cash bag and shooting at him as he did do so.

The trial court mainly relied on the evidence of PWs.1  and 10 and PW 3.  PW 10 Mangala Chintamani is the wife of  accused No. 1 i.e. Balu Ranganath Chintamani. It is to be  noted that the High Court directed acquittal of A 2 (Vitthal  Ramayya Madur) and A 3 (Intakhab Alam Abdul Salam Sain)  but dismissed the appeal so far as the accused Nos.1 and 4   are concerned.  The present appeal has been filed by only A 4  (Amitsing Bhikamsingh Thakur).

Primary stand of learned counsel for the appellant is  that the so called confession has no evidentiary value it was  extracted under duress.  The discovery was made from an  open space and therefore the confession cannot be of any  consequence.  Also identification of the accused through a   test identification parade has no legal value. 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  of Criminal Procedure, 1973 (in short the ’Code’) and the  Indian Evidence Act, 1872 (in short 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

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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.          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 (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).  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

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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."  

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  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."

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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.  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.  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."  

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.  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 V.C. Shukla v. State (AIR  1980 SC 1382) wherein also Fazal Ali, J.  speaking for a three-Judge Bench made

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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."                                    These aspects were highlighted in Malkhansingh and  Others v. State of M.P. (2003 (5) SCC 746).

So far as the discovery under Section 27 of the Evidence  Act is concerned it appears to be from open space.  In that  contest the observations of this Court in Anter Singh v. State  of Rajasthan   (2004 (10) SCC 657) need to be noted.

The scope and ambit of Section 27 of the Evidence Act  were illuminatingly stated in Pulukuri Kotayya v. Emperor   (AIR 1947 PC 67) in the following words, which have become  locus classicus:   

It is fallacious to treat the ’fact discovered’  within the section as equivalent to the object  produced; the fact discovered embraces the  place from which the object is produced and  the knowledge of the accused as to this and

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the information given must relate distinctly to  this fact. Information as to past user or the  past history, of the object produced is not  related to its discovery in the setting in which  it is discovered. Information supplied by a  person in custody that ’I will produce a knife  concealed in the roof of my house’ does not  lead to the discovery of a knife; knives were  discovered many years ago. It leads to the  discovery of the fact that a knife is concealed  in the house of the information to his  knowledge, and if the knife is proved to have  been used in the commission of the offence,  the fact discovered is very relevant. But if to  the statement the words be added ’with which  stabbed A.’, these words are inadmissible  since they do not related to the discovery of  the knife in the house of the informant." (p.  77)

The aforesaid position was again highlighted in Prabhu v.  State of Uttar Pradesh  (AIR 1963 SC 1113).   Although the interpretation and scope of Section 27 has  been the subject of several authoritative pronouncements, its  application to concrete cases in the background events proved  therein is not always free from difficulty. It will, therefore, be  worthwhile at the outset, to have a short and swift glance at  Section 27 and be reminded of its requirements. The Section  says :  "Provided that, when any fact is deposed  to as discovered in consequence of  information received from a person accused of  any offence, in the custody of a police officer,  so much of such information, whether it  amounts to a confession or not, as relates  distinctly to the fact thereby discovered may  be proved."  

The expression "provided that" together with the phrase  "whether it amounts to a confession or not" show that the  section is in the nature of an exception to the preceding  provisions particularly Section 25 and 26. It is not necessary  in this case to consider if this Section qualifies, to any extent,  Section 24, also. It will be seen that the first condition  necessary for bringing this Section into operation is the  discovery of a fact, albeit a relevant fact, in consequence of the  information received from a person accused of an offence. The  second is that the discovery of such fact must be deposed to.  The third is that at the time of the receipt of the information  the accused must be in police custody. The last but the most  important condition is that only "so much of the information"  as relates distinctly to the fact thereby discovered is  admissible. The rest of the information has to be excluded. The  word "distinctly" means "directly", "indubitably", "strictly",  "unmistakably". The word has been advisedly used to limit and  define the scope of the provable information. The phrase  "distinctly" relates "to the fact thereby discovered" and is the  linchpin of the provision. This phrase refers to that part of the  information supplied by the accused which is the direct and  immediate cause of the discovery. The reason behind this  partial lifting of the ban against confessions and statements  made to the police, is that if a fact is actually discovered in  consequence of information given by the accused, it affords  some guarantee of truth of that part, and that part only, of the  information which was the clear, immediate and proximate

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cause of the discovery. No such guarantee or assurance  attaches to the rest of the statement which may be indirectly  or remotely related to the fact discovered. (See Mohammed  Inayuttillah v. The State of Maharashtra (AIR 1976 SC 483).  At one time it was held that the expression "fact  discovered" in the section is restricted to a physical or material  fact which can be perceived by the senses, and that it does not  include a mental fact, now it is fairly settled that the  expression "fact discovered" includes not only the physical  object produced, but also the place from which it is produced  and the knowledge of the accused as to this, as noted in  Palukuri Kotayya’s case (supra) and in Udai Bhan v. State of  Uttar Pradesh (AIR 1962 SC 1116).  The various requirements of the Section can be summed  up as follows: (1)     The fact of which evidence is sought to be given  must be relevant to the issue.  It must be borne in mind that  the provision has nothing to do with question of relevancy. The  relevancy of the fact discovered must be established according  to the prescriptions relating to relevancy of other evidence  connecting it with the crime in order to make the fact  discovered admissible.  (2)     The fact must have been discovered. (3)     The discovery must have been in consequence of  some information received from the accused and not by  accused’s own act. (4)     The persons giving the information must be accused  of any offence. (5)     He must be in the custody of a police officer. (6)     The discovery of a fact in consequence of  information received from an accused in custody must be  deposed to. (7)     Thereupon only that portion of the information  which relates distinctly or strictly to the fact discovered can be  proved.  The rest is inadmissible. As observed in Palukuri Kotayya’s case (supra) it can  seldom happen that information leading to the discovery of a  fact forms the foundation of the prosecution case.  It is one  link in the chain of proof and the other links must be forged in  manner allowed by law.  To similar effect was the view  expressed in K. Chinnaswamy Reddy v. State of Andhra  Pradesh and Another (1962 SC 1788)  

When the evidence of PW1 and the identifications made  at the Test Identification Parade and discovery in terms of  Section 27 are considered, conclusions of the trial court, so far  as affirmed by the High Court, do not suffer from any  infirmity.  At this juncture it is to be noted that learned  counsel for the appellant has submitted that PW 1 was related  to the deceased and therefore his evidence should be rejected.   The plea is clearly without substance.  Relationship would not  result in the mechanical rejection of the testimony of the  witnesses.  Settled norms of appreciation of evidence required  that the evidence of such witnesses is to be assessed with  caution.  In the instant case the trial court has analysed the  evidence with care and caution and the High Court has also  done so.   

Above being the position the plea relating to alleged  interestedness of the witnesses has also no substance.   Looked at from any angle the appeal is sans merit, deserves  dismissal which we direct.