REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO. 475 OF 2008

Ram Babu                 …Appellant

Versus State of U.P.             …Respondent

WITH

CRIMINAL APPEAL NO. 550 OF 2008

JUDGEMENT

R.M. Lodha, J.

These  two  appeals  by  special  leave  arise  out  of  

trial of the appellants and three others, namely, Saudan Singh  

(A-3),  Sher  Singh  (A-6)  and  Mangal  Singh  (A-1)  for  the  

commission  of  offence  punishable  under  Section  395  of  the  

Indian Penal Code (for short, `IPC’).  They were alleged to have  

committed dacoity on April 7, 1980 at or about 9.30 p.m. in a

temple  –  Totadhari  Math,  Gyan  Gudari,  Vrindavan,  District  

Mathura.   The appellants  and A-1 were convicted by the 3rd  

Additional Sessions Judge, Mathura under Section 395 IPC and  

sentenced to undergo rigorous imprisonment for a term of five  

years.  A-3  and  A-6  were  acquitted.  The  appellants  and  A-1  

challenged their conviction by a common appeal to Allahabad  

High Court. The High Court vide its judgment dated September  

14, 2007 dismissed the appeal.  It  is from this judgment that  

one appeal  has been preferred by Ram Babu (A-5)  and the  

other by Man Singh @ Mani (A-4) and Jagdish Upadhyay (A-2).  

We are  informed that  A-1  had  died  during  the  pendency  of  

appeal before High Court.  

2. Vrindavan is a holy and revered place having large  

number of public religious Maths. Totadhari  Math (hereinafter  

referred to as ‘temple’) is situate in Mohalla Gyan Gudari. Many  

silver idols adorn this temple.  Ornaments and silver utensils for  

shringar and puja of  the deities were used to be kept in the  

almirah in his room by the Mahant – Vishwast Sen Acharya.  

The  disciples,  students  and  teacher  resided  in  the  temple  

premises.  On  April  7,  1980  at  about  9.30  p.m.,  the  dacoits  

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(15/16 in number) armed with pistols, guns, knives and lathis  

entered  the  temple  premises.  At  that  time,  in  the  courtyard  

(Chowk),  Ram Ajor  Pathak  (PW-1),  Jagdish  Prasad  (PW-2),  

Sudarshan  Prasad  (PW-3),  Udhav  Prasad  (PW-9),  Brijesh  

Kumar, Kaladhar Dwivedi, Narotam Kumar and three sadhus,  

namely,  Damodar,  Ram  Prapan  and  Madhav  Prasad  were  

taking food (Prasad).  The dacoits asked them to hand over the  

keys of the temple and the room  where silver idols, ornaments  

and silver utensils etc. were kept but they feigned ignorance as  

the Mahant  was not  in  the temple.   The dacoits  then asked  

them to stay put in a small room.  PW-9 escaped from room  

where he was confined and managed to reach the roof of the  

temple.   The dacoits  broke open the room and almirah  and  

looted the ornaments,  silver  utensils,  cash and other  articles  

like  clocks,  clothes,  etc.  They  also  looted  idols  made  of  

Astadhatu and silver.  After looting the properties, the dacoits  

ran away towards river Yamuna.  Before leaving, the dacoits  

also caused injuries to Madhav Das and Damodar Das by the  

butt of the gun. As soon as Mahant reached the temple, PW-1  

went to the police station and lodged the first information report  

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at  about  10.15  p.m.  in  the  same  night  against  unknown  

persons.

3. Kashi  Ram  –  a  Sub  Inspector  commenced  

investigation  immediately  thereafter.  He  visited  the  place  of  

occurrence and prepared site plan. Madhav Das and Damodar  

Das who were injured by the dacoits were medically examined  

on April 8, 1980 at the Government Hospital, Vrindavan. During  

the  course  of  investigation,  the  Investigating  Officer  arrested  

number of dacoits.  On April 29, 1980, A-1 was arrested at 4.30  

p.m. On April 30, 1980, A-3 and A-2 were arrested at 6.15 a.m.  

and 9.00 a.m.  respectively. On May 1, 1980, A-6 was arrested  

at 12.30 p.m. while on May 6, 1980, A-5 was arrested at 2.00  

p.m. On May 29, 1980, accused A-4 was arrested at 5.30 p.m.  

Besides them, three more persons namely, Biro, Chandar and  

Sundar were also arrested by the Investigating Officer. On June  

4,  1980,  the  test  identification  parade  was  held  under  the  

supervision of L.P. Gupta (PW-14).  Based on the result of the  

identification and the statements recorded under Section 161 of  

Criminal Procedure Code,  a charge-sheet was filed against 7  

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persons  including  the  present  appellants.    Biro  (A-7)  was  

discharged by the trial judge on August 30, 1980.  

4. The  prosecution  examined  as  many  as  35  

witnesses.  PW-1, PW-2, PW-3 and PW-9 are inmates of the  

temple and were present at the time of incident. PW-14 is the  

Special  Executive  Magistrate  under  whose  supervision  test  

identification  parade  was  conducted.  Munna  Prasad  Srivast  

(PW-15), Ramesh Chandra (PW-18) and Maharaj Singh (PW-

19) were examined to prove the arrest of the accused persons.  

Jaipal Singh (PW-10) is the Investigating Officer who conducted  

investigation after transfer of Sub-Inspector Kashi Ram. Quite a  

few police constables were examined by way of link evidence to  

prove that right from the arrest till being lodged in jail, the faces  

of  the  suspects  were  kept  veiled  and  nowhere  was  the  

opportunity to see them.  

5. The  statements  of  the  accused  were  recorded  

under Section 313 of Criminal Procedure Code. The accused  

also produced four witnesses Jagdish Swarup (DW-1),  Tejbir  

Singh Tyagi (DW-2), Purushottam (DW-3) and V.D. Gupta (DW-

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4) in support of their defence that their identity did not remain  

secret and they have been falsely implicated.

6. The trial court held that guilt of A-1, A-2, A-4 and A-

5 for the offence under Section 395 IPC was proved beyond  

reasonable doubt. The benefit of doubt was given to A-3 and  

A-6.

7. Mr. Ashok Kumar Sharma, learned counsel for the  

appellants vehemently contended that the evidence against the  

appellants and A-3 and A-6 who have been acquitted and A-7  

who was discharged is identical and if based on that evidence,  

the identification of A-3 and A-6 was held not established, the  

said  evidence  is  liable  to  be  rejected  in  respect  of  the  

appellants  as  well.   He  would  also  contend  that  the  test  

identification parade was held belatedly and delay having not  

been explained sufficiently, the identification was doubtful and  

conviction improper. Lastly, learned counsel submitted that the  

incident took place 30 years back and half the sentence has  

already  been  undergone  by  the  appellants  and,  therefore,  

interest of justice would be sub-served if the sentence awarded  

to the appellants is reduced to already undergone.

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8. Mr. Pramod Swarup, learned senior counsel for the  

State supported the judgment of the High Court and submitted  

that  the  conviction  of  the  appellants  based  on  identification  

does not suffer from any legal infirmity warranting interference  

by this Court.    

9. Section 9 of the Evidence Act, 1872 reads:

“S. 9. Facts  necessary  to  explain  or  introduce  relevant  facts.—Facts  necessary  to  explain  or  introduce  a  fact  in  issue  or  relevant  fact,  or  which  support  or  rebut  an  inference suggested by a  fact  in  issue or relevant fact, or which establish the identity of  any thing or person whose identity is relevant, or fix the  time or place at which any fact in issue or relevant fact  happened,  or  which  show  the  relation  of  parties  by  whom any such fact was transacted, are relevant in so  far as they are necessary for that purpose.”

10. As per Section 9 of the Evidence Act, facts which  

establish the identity of an accused are relevant.  Identification  

parade  belongs  to  investigation  stage  and  if  adequate  

precautions  are  ensured,  the  evidence  with  regard  to  test  

identification parade may be used by the court for the purpose  

of corroboration.  The purpose of test identification parade is to  

test and strengthen trustworthiness of the substantive evidence  

of a witness in court. It is for this reason that test identification  

parade  is  held  under  the  supervision  of  a  magistrate  to  

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eliminate  any  suspicion  or  unfairness  and  to  reduce  the  

chances of testimonial error as magistrate is expected to take  

all possible precautions.

11. In  the  present  case,  PW-14  supervised  the  test  

identification parade held in District  Jail,  Mathura on June 4,  

1980.  He proved identification memos in  his  deposition.   He  

deposed that all possible precautions were taken in conduct of  

the test identification parade held on that date.  As a matter of  

fact,  there  is  no  challenge  to  his  testimony.   Insofar  as  

substantive evidence is concerned, all the three appellants (A-

2, A-4 and  A-5) have been identified by PW-3 and PW-9 in the  

Court.  A-2 and A-4 were also identified by PW-2 in the Court.  

Being  inmates,  their  presence  in  the  temple  at  the  time  of  

incident was natural. All of them were having their food in the  

chowk at that time.  That there was sufficient light for enabling  

them to identify the dacoits is also established.  Besides bulbs  

and tube lights, according to these witnesses, the light was also  

available  from  two  gas  petromaxes.  Pertinently,  learned  

counsel for the appellants did not contest the finding recorded  

by the trial court as well as the High Court in this regard.  The  

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prosecution  also  examined  large  number  of  witnesses  to  

adduce link evidence to the effect that right from the arrest of  

the accused persons till  being lodged in jail,  the faces of the  

suspects were kept veiled and nowhere was the opportunity to  

see them.  The learned counsel  for the appellants,  however,  

contended that the evidence against the appellants and A-3, A-

6 and A-7 was identical and based on that evidence A-3 and A-

6 were acquitted and A-7 was  discharged and on the same  

evidence,  appellants  could  not  have  been  legally  convicted.  

Insofar as A-3 is concerned, the trial court gave him benefit of  

doubt as the prosecution failed to furnish any explanation as to  

why  he  could  not  be  confined  in  jail  or  presented  before  a  

Magistrate on the day of arrest itself, i.e. April 30, 1980. The  

trial  court  found that,  although A-3 was arrested on April  30,  

1980 at about 6.15 a.m. but he was produced before the Court  

on the next day despite the fact that Magistrate was available  

hardly 8 killometers away. As regards A-6, the trial court was  

not convinced about the date, time and place of his arrest. The  

trial court held that from the evidence on record, possibility of  

his  arrest  at  earlier  point  of  time  and  at  some  other  place  

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cannot be excluded. We are afraid the grounds on which A-3  

and A-6 were given benefit  of  doubt do not,  in any manner,  

affect the credibility of the evidence of PW-2, PW-3 and PW-9  

in the Court or the test identification parade insofar as A-2, A-4  

and A-5 are concerned.  These witnesses have identified the  

appellants not only in test identification parade but also in the  

Court.  The identification of the appellants, thus, is established  

by substantive evidence duly corroborated by test identification  

parade.

12. We may also consider the contention of the learned  

counsel for the appellants that as the test identification parade  

was  held  belatedly  and  delay  has  not  been  explained  

sufficiently,  the  identification  of  the  appellants  is  rendered  

doubtful. It is true that A-2 was arrested on April 30, 1980; A-5  

on  May  6,  1980;  and  A-4  on  May  29,  1980  while  the  test  

identification  parade  was  held  on  June  4,  1980  but  the  

explanation that has been put forth by the prosecution for this  

delay is that the suspects (9 in number) including the appellants  

were  arrested  on different  dates  and the  last  of  such  arrest  

being of A-4 on May 29, 1980, the test identification parade was  

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held only thereafter.  In our view, in the facts and circumstances  

of the case explanation is acceptable and it cannot be said that  

test identification parade held on June 4, 1980 suffers from any  

undue and unexplained delay.

13. Learned counsel for the appellants took us through  

the  evidence  of  all  the  important  witnesses.   Ordinarily,  this  

Court  does  not  enter  into  an  elaborate  examination  of  the  

evidence in a case where the High Court has concurred with  

the findings of fact recorded by the trial court.  There is nothing  

exceptional in the present case that may justify departure from  

this rule.  However, we considered the evidence referred to by  

learned counsel for the appellants and we do not think that the  

conclusion  recorded  by  the  trial  court  and  confirmed  by  the  

High Court suffers from any factual or legal infirmity, or was one  

which could not reasonably be arrived at by those Courts.

14. It  was  submitted  by  learned  counsel  for  the  

appellants that the incident is of 1980 and the appellants have  

already  undergone  half  the  sentence  and  their  sentence  be  

reduced to already undergone. We are not impressed by this  

submission.  Dacoity is a daredevil  act.   Most of the time, a  

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serious crime like  dacoity  is  committed  by unknown persons  

and it is very difficult to trace them and still difficult to secure  

their conviction.  As a matter of fact, looking to the nature of  

crime and the manner in which the appellants looted temple  

properties,  graver  punishment  was  warranted.   In  any  case,  

sentence of five years rigorous imprisonment awarded by the  

trial  court  and confirmed in appeal by the High Court  for the  

offence under Section 395 IPC calls for no interference.

15. Both appeals fail and are dismissed.     

      ……………………J

(P. Sathasivam)

      …….……………..J         (R. M. Lodha)

New Delhi April 19,  2010.

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