10 April 1996
Supreme Court
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RAM NATH MAHTO Vs STATE OF BIHAR

Bench: PUNCHHI,M.M.
Case number: Appeal (crl.) 225 of 1987


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PETITIONER: RAM NATH MAHTO

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       10/04/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 SCALE  (3)441

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The conviction  of the  appellant under Section 396 IPC initially visited  him with  a life  sentence, as ordered by the Court  of Session,  but on  appeal to the High Court, it was reduced to ten years’ rigorous imprisonment. _      It  was  a  night  robbery  in  a  running  train.  The appellant was  allegedly one  of the  dacoits. A  person was killed during  the course  of commission  of dacoity and the dacoits caused  hurts to  others and  looted their property. P.W.6, Diwakar  Yadav, was  one such  person who was robbed. The Train  Ticket Examiner,  P.W.3,  was  also  one  of  the occupants in  the train who was injured. The occurrence took place shortly  after the  train left  Keshar station for its onward journey  to Calcutta.  This incident  happened in the State of  Bihar. The  matter was  reported to  the police by P.W.3. The  appellant, was  later arrested  as  one  of  the culprits. He  was put  to identification parade conducted by Judicial Magistrate.  Bharatji Misra,  P.W.7. Thereat, P.W.6 was able  to identify  the appellant  as one  of the dacoits besides others,  with whom  we are  presently not  concerned with, and  claimed that  he was  the one  who had a revolver with  him  which  he  employed  during  the  course  of  the occurrence.        At  the trial  P.W.7 fully  supported the prosecution case, deposing  that P.W.6  had before  him  identified  the appellant as the dacoit carrying a revolver. P.W.6, however, chose not  to identify the appellant at the trial and rather said that  he could  not recognize  the accused  whom he had identified at  the indentification  parade. When his pointed attention was  drawn  towards  the  appellant,  he  did  not identify him. At that juncture, the trial judge recorded his remarks as  to his  demeanor that  the witness  perhaps  was afraid of  the accused.  It thus  became  evident  that  the witness  was   frightened  to   accord  recognition  to  the appellant at the trial. Despite such bend in the prosecution case, the  trial court  as also the High Court relied on the

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statement of  the  Magistrate,  P.W.7  as  to  P.W.6  having identified the  appellant before  him at  the identification parade and  held the  prosecution case  proved beyond doubt. Added thereto  was the  remark of  the trial court about the demeanor of the witness P.W.6.      As was  done before  the courts  below, learned counsel for the  appellant has  relied upon a decision of this Court in Budhsen  & Anr.  vs. State  of U.P. - AIR 1970 SC 1321 to contend that  the evidence of identification parade does not constitute by  itself substantive evidence which is governed essentially by  the provisions of Section 162 of the Code of Criminal   Procedure. In that case, this Court took the view that on  the facts  established ,  the  Test  Identification Parade  could   not  be   considered  to  provide  safe  and trustworthy evidence on which conviction could be sustained. That case  was distinguished  by the courts below and in our view  rightly,   by  taking  into  account  the  substantive evidence of  the Magistrate, P.W.7, supported by the remarks of the  trial court regarding demeanor of P.W.6 there can be no dispute  to the proposition that oral evidence led at the trial may by itself be substantive evidence whereas evidence of Test  Identification Parade  may per  se be  not. In that situation, the  Court would  certainly be  entitled to  rely upon such  evidence as  that would be relevant under Section of the Evidence Act. Here have, as said before, the evidence of the Magistrate, P.W.7 to support the prosecution evidence to that  he conducted  the identification  parade and before him P.W.6 had correctly identified Ram Nath to be one of the dacoits. And  the word  of P.W.7  In the  context  has  been believed by the courts below.      For the  foregoing reasons,  we do  not differ from the view taken  by the  High Court in maintaining the conviction of the  of the  appellant. The appeal therefore fails and is hereby  dismissed.  The  appellant  is  on  bail.  He  shall surrender to his bail bonds.