REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     445        OF 2009 (Arising out of SLP (Crl.) No.3895 of 2006)

               Santosh Devidas Behade and Ors. ...Appellants

Versus

State of Maharashtra ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay  High  Court,  Nagpur  Bench,  upholding  the  conviction  of  the

appellants for offences punishable under Sections 147, 148, 302 read with

Section 149 of the Indian Penal  Code,  1860 (in  short  the ‘IPC’). By the

impugned order two Criminal Appeals i.e. Criminal Appeal Nos. 314/2001

and  346/2001  were  disposed  of.  Accused  persons  are  Namdev  (A-1),

Santosh (A-2), Mangal (A-3), Subhash (A-4) and Sudam (A-6).  The High

Court by the impugned judgment dismissed the appeals.  

3. Background facts in a nutshell are as follows:

The  Complainant-Chandrakalabai  widow  of  Bharat  Kharat  was  a

resident  of Village Dharkanha.  At the time of incident,  she was residing

with  her  husband  Bharat  Mukinda  Kharat  (hereinafter  referred  to  as  the

‘deceased’) and two sons in the house situated in the village Dharkanha. It

is  the  case  of  the  prosecution  that  Shivcharan  (PW6),  son  of  the

Complainant Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai,

the keep of deceased Bharat  and Shakuntalabai  were residing in the said

house. On the day of incident, Shakuntala was not present as she had gone

to  Pusad.  At  that  time,  work  of  uprooting  the  groundnut  crop  was  in

progress in the field of deceased Bharat and several persons from village

Londhari  were  working in  his  field.  There was a pit  dug in  front  of  the

house of Bharat for construction of one room.

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On  7th June,  1998,  at  about  1.00  p.m.,  deceased  Bharat  and  one

Tulshiram Vadar had gone to Pusad and returned home at about 7.00 p.m.

After  that,  deceased Bharat  was  taking meal  in  his  house and Tulshiram

went to sleep in front of the house.  After  some time, at  about 8.00 p.m.

accused  Namdev  Tarpe  came to  the  house  of  the  complainant  and  told

Bharat that persons from village Yehala were coming to beat him and he

should run away from the spot, or release the dogs. When Bharat came out

of the house, five to six persons encircled Bharat  in the courtyard of his

house and started beating him. They were armed with axes, sticks, crowbars

and beat Bharat with the said weapons. When Bharat was being assaulted,

he  shouted  for  help  loudly  saying  “Chandrakala,  I  am  dying.”  The

complainant -Chandrakala went to Tulsiram and awakened him. Tulshiram

tried to rescue Bharat from the clutches of the accused; but the accused did

not allow him to help the deceased. The complainant Chandrakala thereafter

went towards the persons of village Londhari and stayed there along with

her sons. The assailants also came there and threatened them not to disclose

the incident and asked them to leave. The persons from village Londhari

thereafter left the place. The accused persons also left the place.

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The  complainant  Chandrakala  along  with  her  sons  went  near  her

husband  deceased  Bharat  and  noticed  injuries  on  his  person,  who  had

already succumbed to those injuries on the spot. The complainant asked her

son Shivcharan (PW-6) the names of the assailants. Shivcharan told her that

the assailants were from village Yehala and gave their names as “Namdeo

Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Sahebrao and

one unknown person to whom he knew by face.”

The complainant along with her sons thereafter went to the house of

Police  Patil  of  village  Dharkanha  and  narrated  the  incident.  The

complainant  stayed there  for  the  night  and on the next  day, she  went  to

Police  Station,  Pusad  (Rural)  and  lodged  a  report.  In  the  report,  she

mentioned the names of five accused persons and one unknown person. She

also stated in the report that accused persons assaulted her husband because

one  year  before  the  incident,  there  were  murders  of  one  Atmaram and

Laxman of  village  Yehala  and  in  the  said  crime,  her  husband  deceased

Bharat was arrested and, therefore, the assailants for taking revenge of the

said murders, and had assaulted Bharat in the incident in question. On the

basis of the report lodged by the complainant investigation was undertaken.

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After completion of investigation charge sheet was filed and as the accused

persons i.e. seven in number in two Criminal Appeals before High Court

pleaded innocence, trial was held.  

It  is  to  be  noted  that  A-1  was  absconding  and  therefore  separate

charge sheet was filed against him. The trial Court placed reliance on the

evidence  of  Chandrakala  (PW-2)  and  Shivcharan  (PW-6)  and  found  the

accused persons guilty.  

In appeal, the primary stand of the accused persons was that PWs 2

and 6 being related to the deceased their evidence should not be acted upon

particularly when Tulshiram and the younger son of the deceased were not

examined.  Additionally,  it  was  submitted  that  in  the  Test  Identification

Parade (in short the ‘TI Parade’) held on 3.8.1998 only two accused persons

Sudam and  Mangal  were  identified.  Further,  the  evidence  of  Shivcharan

(PW-6) only relates to accused Shamrao  and, therefore, Section 149 has no

application. It was also submitted that PW-2 cannot be believed as she did

not know the names of the accused persons and the names were told to her

by PW-6. The trial Court did not analyse their evidence and held that merely

because PWs 2 and 6 were the wife and son of the deceased that did not

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render their evidence suspect.  Additionally, the TI parade was held only in

respect of two accused appellants Sudam and Mangal and not in respect of

other  accused  persons  as  they  were  allegedly  known  to  the  prosecution

witnesses.  

Stand of State was that as others were known, there was no need for

TI  Parade.  The  fact  situation  clearly  shows  that  Section  149  IPC  has

application.

4. In support of the appeal the stands taken before the High Court are re-

iterated by learned counsel for the appellants and for the State.  

5. A plea which was emphasized by the appellant relates to the question

whether Section 149, IPC has any application for fastening the constructive

liability which is the sine qua non for its operation.  The emphasis is on the

common  object  and  not  on  common  intention.   Mere  presence  in  an

unlawful assembly cannot render a person liable unless there was a common

object and he was actuated by that common object and that object is one of

those  set  out  in  Section  141.   Where  common  object  of  an  unlawful

assembly is not proved, the accused persons cannot be convicted with the

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help  of  Section  149.   The  crucial  question  to  determine  is  whether  the

assembly consisted of five or more persons and whether the said persons

entertained one or more of the common objects, as specified in Section 141.

It cannot be laid down as a general proposition of law that unless an overt

act is proved against a person, who is alleged to be a member of unlawful

assembly, it cannot be said that he is a member of an assembly.  The only

thing  required  is  that  he should  have  understood  that  the  assembly was

unlawful and was likely to commit any of the acts which fall  within the

purview of Section 141.  The word ‘object’ means the purpose or design

and, in order to make it ‘common’, it must be shared by all.  In other words,

the object should be common to the persons, who compose the assembly,

that is to say, they should all be aware of it and concur in it.  A common

object may be formed by express agreement after mutual consultation, but

that is by no means necessary.  It may be formed at any stage by all or a few

members of the assembly and the other members may just join and adopt it.

Once formed, it need not continue to be the same.  It may be modified or

altered  or  abandoned  at  any  stage.   The  expression  ‘in  prosecution  of

common object’ as appearing in Section 149 have to be strictly construed as

equivalent to ‘in order to attain the common object’. It must be immediately

connected with the common object by virtue of the nature of the object.

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There must be community of object and the object may exist only up to a

particular stage, and not thereafter.  Members of an unlawful assembly may

have community of object up to certain point beyond which they may differ

in their objects and the knowledge, possessed by each member of what is

likely to be committed in prosecution of their common object may vary not

only according to the information at his command, but also according to the

extent to which he shares the community of object, and as a consequence of

this the effect of Section 149, IPC may be different on different members of

the same assembly.

6. ‘Common object’ is different from a ‘common intention’ as it does

not  require  a  prior  concert  and  a  common meeting  of  minds  before  the

attack.  It is enough if each has the same object in view and their number is

five or more and that they act as an assembly to achieve that object.  The

‘common object’  of  an  assembly  is  to  be  ascertained  from the  acts  and

language of the members composing it, and from a consideration of all the

surrounding circumstances.  It may be gathered from the course of conduct

adopted by the members of the assembly. For determination of the common

object of the unlawful assembly, the conduct of each of the members of the

unlawful  assembly,  before  and  at  the  time  of  attack  and  thereafter,  the

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motive  for  the crime,  are  some of  the relevant  considerations.  What  the

common object  of  the  unlawful  assembly is  at  a  particular  stage  of  the

incident is essentially a question of fact to be determined, keeping in view

the  nature  of  the  assembly,  the  arms  carried  by  the  members,  and  the

behaviour of the members at or near the scene of the incident.  It is  not

necessary  under  law  that  in  all  cases  of  unlawful  assembly,  with  an

unlawful  common object,  the  same must  be  translated  into  action  or  be

successful.  Under the Explanation to Section 141, an assembly which was

not unlawful when it was assembled, may subsequently become unlawful.

It is not necessary that the intention or the purpose, which is necessary to

render an assembly an unlawful one comes into existence at the outset.  The

time of forming an unlawful intent is not material. An assembly which, at

its  commencement  or  even  for  some  time  thereafter,  is  lawful,  may

subsequently become unlawful.  In other  words it  can develop during the

course of incident at the spot co instanti.

7. Section 149, IPC consists of two parts.  The first part of the section

means  that  the  offence  to  be  committed  in  prosecution  of  the  common

object  must  be  one  which  is  committed  with  a  view  to  accomplish  the

common object.  In order that the offence may fall within the first part, the

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offence  must  be  connected  immediately  with  the  common object  of  the

unlawful assembly of which the accused was member.  Even if the offence

committed  is  not  in  direct  prosecution  of  the  common  object  of  the

assembly, it may yet fall under Section 141, if it can be held that the offence

was such as the members knew was likely to be committed and this is what

is required in the second part  of the section.  The purpose for which the

members of the assembly set out or desired to achieve is the object.  If the

object desired by all the members is the same, the knowledge that is the

object which is being pursued is shared by all the members and they are in

general  agreement  as  to  how  it  is  to  be  achieved  and  that  is  now  the

common object  of  the assembly.   An object  is  entertained in  the human

mind,  and  it  being  merely  a  mental  attitude,  no  direct  evidence  can  be

available  and,  like  intention,  has  generally  to  be  gathered  from the  act

which the person commits and the result therefrom.  Though no hard and

fast rule can be laid down under the circumstances from which the common

object can be called out, it may reasonably be collected from the nature of

the assembly, arms it carries and behaviour at or before or after the scene of

incident.  The word ‘knew’ used in the second branch of the section implies

something more than a possibility and it cannot be made to bear the sense of

‘might  have  been  known’.  Positive  knowledge  is  necessary.  When  an

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offence  is  committed  in  prosecution  of  the  common  object,  it  would

generally be an offence which the members of the unlawful assembly knew

was likely to be committed in prosecution of the common object.   That,

however, does not make the converse proposition true; there may be cases

which would come within the second part but not within the first part.  The

distinction  between  the  two  parts  of  Section  149  cannot  be  ignored  or

obliterated.  In every case it would be an issue to be determined, whether

the offence committed falls within the first part or it was an offence such as

the  members  of  the  assembly  knew  to  be  likely  to  be  committed  in

prosecution  of  the  common  object  and  falls  within  the  second  part.

However, there may be cases which would be within first part, but offences

committed in prosecution of the common object would be generally, if not

always, be within the second part, namely, offences which the parties knew

to  be  likely  committed  in  the  prosecution  of  the  common  object.   (See

Chikkarange Gowda and others v. State of Mysore: AIR 1956 SC 731.)

8. In  State of U.P. v.  Dan Singh and Ors. (1997 (3) SCC 747) it  was

observed that it is not necessary for the prosecution to prove which of the

members of the unlawful assembly did which or what act. Reference was

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made to  Lalji  v.  State of U.P. (1989 (1) SCC 437) where it was observed

that:

“while overt act  and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149”.

9. This position has been elaborately stated by this Court in Gangadhar

Behera and Ors. v.  State of Orissa (2002 (8) SCC 381 and  Shivjee Singh

and  Ors.  v.  State  of  Bihar  (SLP  (Crl.)  No.1494/2004  disposed  of  on

30.7.2008)  

10. Merely because the eye-witnesses are family members their evidence

cannot per se be discarded. When there is allegation of interestedness, the

same has  to  be  established.   Mere  statement  that  being  relatives  of  the

deceased they are likely to falsely implicate the accused cannot be a ground

to discard the evidence which is otherwise cogent and credible.  We shall

also deal with the contention regarding interestedness of the witnesses for

furthering  prosecution  version.   Relationship  is  not  a  factor  to  affect

credibility of a witness.  It is more often than not that a relation would not

conceal  actual  culprit  and  make  allegations  against  an  innocent  person.

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Foundation has to be laid if plea of false implication is made.  In such cases,

the court has to adopt a careful approach and analyse evidence to find out

whether it is cogent and credible.

11. In Dalip Singh and Ors.  v. The State of Punjab (AIR 1953 SC 364) it

has been laid down as under:-

“A  witness  is  normally  to  be  considered  independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause,  such as  enmity against  the  accused,  to  wish  to implicate him falsely.  Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person.  It  is true,  when feelings run high and there  is  personal  cause for  enmity,  that  there  is  a tendency to drag in an innocent person against whom a witness  has  a  grudge  along  with  the  guilty,  but foundation  must  be  laid  for  such  a  criticism and  the mere fact of relationship far from being a foundation is often a sure  guarantee of  truth.   However,  we are not attempting any sweeping generalization.  Each case must be judged on its own facts.  Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence.  There is no such general  rule.  Each  case  must  be  limited  to  and  be governed by its own facts.”

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12. The above decision has since been followed in  Guli Chand and Ors.

v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State

of Madras (AIR 1957 SC 614) was also relied upon.

13. We may also observe that the ground that the witness being a close

relative  and  consequently  being  a  partisan  witness,  should  not  be  relied

upon, has no substance.  This theory was repelled by this Court as early as

in  Dalip  Singh’s case  (supra)  in  which  surprise  was  expressed  over  the

impression which prevailed in the minds of the Members of the Bar that

relatives were not independent witnesses. Speaking through Vivian Bose, J.

it was observed:  

“We are unable to agree with the learned Judges of  the  High  Court  that  the  testimony  of  the  two eyewitnesses requires corroboration.  If the foundation for  such  an  observation  is  based  on  the  fact  that  the witnesses  are  women  and  that  the  fate  of  seven  men hangs on their testimony, we know of no such rule.  If it is grounded on the reason that they are closely related to the deceased we are unable to concur.  This is a fallacy common to many criminal cases and one which another Bench  of  this  Court  endeavoured  to  dispel  in  – ‘Rameshwar v. State of Rajasthan’ (AIR 1952 SC 54 at p.59).   We  find,  however,  that  it  unfortunately  still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.”

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14. Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965 SC 202) this

Court observed: (p. 209-210 para 14):

“But  it  would,  we  think,  be  unreasonable  to contend  that  evidence  given  by  witnesses  should  be discarded  only  on  the  ground  that  it  is  evidence  of partisan  or  interested  witnesses.......The  mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.  No hard  and  fast  rule  can  be  laid  down as  to  how much evidence should be appreciated.  Judicial approach has to  be  cautious  in  dealing  with  such  evidence;  but  the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

15. To the same effect is the decisions in  State of Punjab v.  Jagir Singh

(AIR 1973 SC 2407),  Lehna v.  State of Haryana (2002 (3) SCC 76) and

Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).  

16. The  above  position  was  also  highlighted  in  Babulal  Bhagwan

Khandare  and  Anr.  v.  State  of  Maharashtra [2005(10)  SCC 404],  Salim

Saheb v. State of M.P.  (2007(1) SCC 699),  Sonelal v. State of M.P. (SLP

(Crl.) No.3220 of 2007 disposed of on 22.7.2008) and Mohabbat and Ors. v.

State of M.P. (SLP (Crl.) No. 3251 of 2008)

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17. 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 Indian Evidence Act,  1872 (in

short ‘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.  

9. 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

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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).  

10. 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

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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 absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances."  

11. The Court concluded:  

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"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."  

12. 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

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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."  

13. 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.  

14. 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

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identified  him  in  the  test  identification  parade.  This  Court  noticed  the

observations  of  the  trial  Judge  who  had  recorded  his  remarks  about  the

demeanour 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.  

15. 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

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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."  

16. 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.  

17. 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

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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  State (Delhi Admn.) v.  V. C. Shukla (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 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

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to  be  interested  in  roping  in  innocent  persons  by shielding the real accused who had assaulted them."  

18. These aspects were recently highlighted in Malkhansingh and Others

v. State of M.P. (2003 (5) SCC 746) and Munshi Singh Gautam (dead) and

Ors. v. State of M.P. (2005 (9) SCC 631)

19. If  the  background  facts  are  considered  in  the  light  of  the  legal

principles  set  out  above,  the  inevitable  conclusion  is  that  the  appeal  is

without merit, deserves dismissal which we direct.      

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, March 06, 2009

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