http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  932 of 2007

PETITIONER: Mahabir

RESPONDENT: The State of Delhi

DATE OF JUDGMENT: 11/04/2008

BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT

REPORTABLE

CRIMINAL APPEAL NO.932 OF 2007 With (Criminal Appeal no. 1475 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      These two appeals are directed against the common  judgment of the Delhi High Court in Criminal Appeal nos.430  of 2002 and 328 of 2005.  It needs to be noted that by the said  common judgment three appeals i.e. Criminal Appeal nos  430/2002, 545/2003 and 328/ 2005 were disposed of.    2.       Appellant-Mahabir (appellant in Criminal Appeal no.932  of 2007) was appellant in Criminal Appeal no.430 of 2002 and  appellant Jalvir (appellant in Criminal Appeal no.1475 of 2007  was appellant in Criminal Appeal no.328 of 2005).  Each of  them was convicted for offence punishable under Section 394  read with Section 34, and section 302 read with section 34 of  the Indian Penal Code, 1860 (in short ’IPC’), and was    sentenced to imprisonment for 10 years with fine and  imprisonment for life with fine respectively, with default  stipulation in each case for the aforesaid offences.   

3.      Background facts in a nutshell are as follows:

       Smt. Seema Sharma gave statement to the police alleging  that on 24.2.1997 at about 4.15 p.m. she was present in her  house bearing No.28-B, pocket-B Sidharth Extension, New  Delhi when she heard her door bell ringing and her maid  servant Kamla @ Kharpai went to open the door.  Accused  Jalveer who is related to the complainant along with his three  associates entered the house.  Complainant was standing in  the balcony where all the four reached.  All the three  associates of Jalveer took out knives, Jalveer also took out  knife from his pocket.  Two of the associates of accused  Jalveer caught hold of the complainant and dragged her to her  bed room where she was beaten and accused made enquiries  about gold kept in her house and when she did not give any  information, they kicked her on her stomach.  They removed a  gold chain along with locket and jumkas with chain from her

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

ear.  When Kamla, the maid servant of the complainant, tried  to intervene, two of the associates of the accused Jalveer tied a  blouse around the neck of the complainant as a result of  which she became unconscious for sometime.  After sometime  she heard the screams of Kamla @ Kharpai, her maid servant,  and when she saw, a nylon string was tied around her neck  and she was lying on the floor, Jalveer along with his associate  thereafter fled away from the spot.  Complainant was admitted  in the hospital.  Police party reached at the spot, dead body of  Kamla was removed to AIIMS where postmortem was  conducted on her dead body.  Subsequently, accused Mahabir  and Mahesh were arrested by the police of police station  Hazarat Nizamuddin.  A VCR, ear rings of this case belonging  to complainant were recovered from their possession.  They  made disclosure statements regarding this case therefore, they  were arrested in the present case.  Police applied for holding  TIP of accused Mahesh and Mahabir but they refused to join  the proposed TIP.  The TIP of jewelery articles and VCR  recovered from the accused Mahabir and Mahesh was done by  the Metropolitan Magistrate.  The complainant correctly  identified the articles as well as the jewelery recovered from  the possession of these accused persons.  Subsequently,  accused Jalveer was arrested in this case and Roopa was also  formally arrested in this case after production warrants were  issued.  Photographs of the place of incident were taken, site  plan was got prepared, finger prints were lifted from the place  of incident. Statement of witnesses were recorded by the police  and after investigation of the case they came to the conclusion  that the accused persons committed the murder of maid  servant Kamla and they also committed robbery in the house  of the complainant.  Accordingly, challan was filed.

       After complying with the provision of Section 207 of the  Code of Criminal Procedure, 1973 (hereinafter referred to as  the ’Code’) learned Metropolitan Magistrate committed the  case to the court of Sessions which in turn assigned the same  to learned Additional Sessions Judge for trial in accordance  with law.                    

4.      In order to establish its accusations the prosecution  examined 19 witnesses out of which Smt. Seema Sharma (PW- 4) was the eye-witness to the incident.  Placing reliance on her  evidence and the test identification parade of the accused  persons and the articles, the Trial Court convicted both and  sentenced as aforesaid.   

5.      Before the High Court the primary stand was that PW4  had accepted to have seen the accused Mahabir at the time of  his arrest and, therefore, the test identification parade was of  no consequence and rightly accused-appellant Mahabir had  refused to take part in it.  So far as accused Jalvir is  concerned, it was stated that the complainant did not know  his father’s name and address and, therefore, could not have  made accusations so far as he is concerned. It was also  pointed out that in the first information report name of Jalvir  was mentioned though PW4 herself accepted that she was  unconscious for four days.              7.      The High Court did not find any substance in such plea.   It noted that though accused was shown to her, that actually  did not dilute the evidentiary value and also that was not  relevant as the accused refused to take part in the test  identification parade. It was also noted that accused Jalvir was  known to the witness and, therefore, there was no difficulty in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

mentioning his name in the first information report.   Accordingly, the conviction and sentence as recorded by the  Trial Court came to be affirmed.                                                                                     8.      In support of the appeals, learned counsel for the  appellant submitted that the identification after the accused  was shown to the witness is really of no consequence. Further,  so far as accused Jalvir is concerned, he is barely known to  PW4.  He was not a frequent visitor to the house of the  accused and, therefore, it was not possible for her to identify  the said accused.     

9.      Learned counsel for the respondent-State supported the  impugned order of the High Court which affirmed the  conviction and sentence as recorded by the Trial Court.   

10.     We shall deal with the appeal filed by the accused  Mahabir.  From the evidence of PW4 it is clear that after the  incident accused Mahabir and Mahesh were shown to PW4 at  the time of their arrest.  In fact, police brought many persons  for identification of culprits and identified Mahabir and  Mahesh to PW4.  She admitted that these two persons were  brought to the hospital. Subsequently, she had identified them  in Court.  So far as recovery of the VCR is concerned, which  was treated as a ground for holding Mahabir and Jalvir guilty,    she accepted that it was not told to her about recovery of VCR.   She was told by the police that VCR had been recovered after    the police persons had brought Mahabir and Mahesh.  Interestingly, she also accepted that Mahabir and Mahesh  were brought to the hospital where she was asked to identify  them.        

11.     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  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 possible 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.  12.     It is trite to say that the substantive evidence is the  evidence of identification in Court. Apart from the clear

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

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 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).  13.     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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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 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."  

14.     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."  

15.     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.  16.     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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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.  17.     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."  

18.     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.  19.     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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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

21.     In view of the accepted position that the accused persons  were brought to the hospital to be shown to PW4, grievance  that the test identification parade was really of no  consequence because they had already been shown to the  witnesses has substance.  That being only piece of material  which was used for conviction of Mahabir, same cannot be  sustained.  The same is set aside.  He be released forthwith  unless required in any case. So far accused Jalvir is  concerned, PW4 had categorically stated that she knew him  six years prior to the incident. He had come to their house  many times.  Therefore, there was no difficulty in identifying  accused Jalvir and naming him in the first information report.   It is of significance that in the first information report name of  Jalvir was specifically noted.  The plea that Jalvir’s name  could not have been given at the first instance, because the  witness was unconscious is without any substance.  As a  matter of fact, the witness has categorically stated that after  the information was lodged, she became unconscious.            Above being the position, the conclusions of the Trial Court in  holding accused Jalvir guilty does not suffer from any  infirmity.   

22.     The High Court was right in dismissing the appeal of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

accused-appellant Jalvir.  We find no infirmity in the  conclusions of the High Court to warrant interference.   Therefore, Criminal Appeal no.1475 of 2007 stands dismissed  and as noted above, Criminal Appeal no.932 of 2007 is  allowed.