2003 Supreme(SC) 602

2003(4) Supreme 394
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
N. Santosh Hegde, Ashok Bhan & B.P. Singh, JJ.
Malkhansingh & Ors. -Appellants
versus
State of Madhya Pradesh -Respondent
Criminal Appeal Nos. 1299-1300 of 2002
Decided on 8-7-2003
Counsel for the Parties :
For the Appellant : T.N. Singh, Sr. Advocate, J.P. Pandey and D.N. Mishra, Advocates.
For the Respondent : Ms. Vibha Datta Makhija, Advocate.

IMPORTANT POINT
What weight must be attached to evidence of identification in Court which is not preceded by a test identification parade is a matter for Courts of fact to examine.

Headnote:(i) Evidence Act, 1872-Section 9 -Facts establishing identity of the accused are relevant-Substantive evidence is the evidence of identification in Court and test identification parade provides corroboration to identification of witness in Court-What weight is to be attached to evidence of identification in Court not preceded by test identification parade is a matter for Courts of fact to examine.

       Held : 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 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 of Criminal Procedure, 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 of Criminal Procedure. 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. (Para 7)

       (ii) Indian Penal Code, 1860-Section 376(2)(g)-Gang rape-Delay of 10 days in lodging report-Courts below found that prosecutrix, a teacher, was living all alone and was unmarried aged about 28 years and did not have any family member to whom she could have narrated her story-Trial Court rightly held delay stood explained and it did not discredit prosecution story. (Para 5)

       (iii) India Penal Code, 1860-Section 376(2)(g)-Gang rape by three appellants on a teacher in primary school, a tribal woman, while she was returning from school-Identification of appellants by prosecutrix in Court without holding test identification parade-Substantive evidence is the evidence of identification in Court and test identification parade provides corroboration-Crime was perpetrated in broad day-light and prosecutrix had sufficient opportunity to observe features of appellants-She had reason to remember their faces and had abundant opportunity to notice their features prosecutrix appeared to be a witness on whom implicit reliance could be placed-No reason to interfere with concurrent finds of Courts below that identification of appellant in Court did not require further corroboration.

       Held : From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellant, who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record. (Para 16)