IMPORTANT POINT
There cannot be any abstract general rule that evidence of witness regarding identity of accused not known to witness prior to incident would be inacceptable in absence of prior test identification parade.

Headnote:(i) Indian Penal Code, 1860-Sections 392, 397 and 452-Robbery while appellants-accused were armed with deadly weapons-Conviction challenged on plea that identification of accused without holding a proper test identification parade earlier was unreliable-No abstract general rule that in absence of test identification parade, evidence of identification was not acceptable-One of the three accused was already known to victim on account of having white washed their house-Accused had remained present in side the house for quite some time holding victims at ransom-Conviction was not liable to be interfered with on this point.
       Held : The case on hand is akin to the said case dealt with by learned Judges therein, in that among the accused one was already known on account of having white washed their house, that they have entered their house and was for quite some time present there holding them at ransom by directing and using threat to relieve them of the valuables on which they could lay their hands and it is too much to claim, in spite of all these, that the evidence of PWs. 2, 3 and 10 could not be either sufficient to properly identify the accused or relied upon against the accused in the absence of proper test identification parade. In this case, it has also further come on record that one whose identity was known was initially traced, that the said trail led the investigating authorities to the others and that the complainant was also said to have been associated even at that stage of investigation to identify the accused and ensure properly the arrest of the real accused. Consequently, we see no merit whatsoever in the grievance made and challenge to the judgments of the Courts below on this ground. (Para 6)
       (ii) Indian Penal Code, 1860-Section 397-Robbery while accused were armed with deadly weapon-Conviction challenged on plea that unless deadly weapon had been used actually, offence would not be committed-Meaning of word "uses"-Where offender was armed with deadly weapon which was visible to victim so as to be capable of creating terror in mind of victim, accused would be taken to have used weapon.
       Held : Thus, what is essential to satisfy the word "Uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. (Para 8)
       (iii) Indian Penal Code, 1860-Section 397/34-Conviction-Sustainability against those accused who were not armed with deadly weapon but convicted with help of Section 34 IPC-Provisions of Section 397 IPC negates use of principle of constructive or vicarious liability, but appellants were armed with knives whereas one accused was holding country pistol-Conviction was liable to be modified to hold appellants guilty under Section 397 IPC instead under Section 397/34 IPC. (Para 9)

ORDER

Leave granted in SLP (Crl.) No. 1676/2003.

2. Criminal Appeal No. 1296/2002 has been filed by A-4 (Asfaq) and Criminal Appeal arising out of SLP (Crl.) No.1676/2003 has been filed by A-3 (Haroon) who stood charged along with two others in Sessions Case No. 274/96 on the file of the Additional Sessions Judge, Shahdara.

3. The above appellants were tried before the learned Additional Sessions Judge along with two others by name Ikrar (A-1) and Shahid (A-2) for charges under Section 452 IPC, Section 392 IPC and Section 397 IPC read with Section 34 IPC. A-3 (Haroon) was also charged for an offence under Section 25 of the Arms Act. The sum and substance of the prosecution case was that on 9.11.1991 at about 7.15 p.m. when PW-3 (Bal Kishan) was witnessing a TV programme in the inner room of his house in the company of his wife, PW-10 (Smt. Raj Rani), the accused persons entered their house and when PW-3 (Bal Kishan) came out of the room and was told by one of the four persons that they were sent by one Mahabir Thekedar for white washing of their house, PW-3 (Bal Kishan) was said to have told one of them that he only had already white washed the house and enquired about the need for it again. As the conversation was said to be going on like that the accused closed the door and one of the boys took out a country-made pistol and other took out their knives and by using such threat with such weapons they pushed PW-3 (Bal Kishan) and PW-10 (Smt. Raj Rani) inside and demanded the keys of the almirah. PW-10 (Smt. Raj Rani) the wife seems to have told them that the keys were with her daughter who resides at a different place. But she was not believed and they started searching all around inside for the keys and as this was in progress, PW-2 one of the relatives also arrived there. At that point of time one of the boys opened the door and brought the new comer also inside and ordered them all to hand over their belongings which included a sum of Rs.1400/- and Rs.200/- from Manoj Kumar PW-2. When the search was being made by them one of the accused asked for the sten gun and in the process they were able to lay their hands on the sten gun belonging to the father of PW-3 (Bal Kishan. Thereupon, the sten gun with the magazine and cartridges were also taken away by them after bolting the door outside. On an alarm raised by the inmates, it appears the neighbours came and opened the door. It appears that the accused also removed the gold chain in the temple which was also said to be missing. Thereafter Police report was said to have been lodged and on completion of investigation during which the sten gun, magazine and cartridges were said to have been recovered, charges were laid against the accused as noticed above. A-2 (Shahid), absconded and was also declared as Proclaimed offender, after following procedure under Sections 82 & 83 of the Cr. P.C.

4. The accused denied the charges and thereupon the trial was conducted. Apart from the prosecution witnesses examined and the exhibits marked one Shahid Raza was examined as Defence-witness. After considering the materials on record, the learned trial Judge came to the conclusion that the charges against the accused stood sufficiently proved and established and convicted them under Sections 452, 392 and 397 read with Section 34 IPC. A-3 (Haroon) was further convicted under Section 25 of the Arms Act. Thereupon, seven years RI with a fine of Rs. 5000/- each was imposed for the offence under Section 397 IPC and in default one year RI was also imposed. Under Section 392 IPC three years R.I. and a fine of Rs. 3000/- was imposed with a default clause therefor. A further sentence of three years R. I. with a fine of Rs. 2000/- each under Section 452 IPC also was imposed with a default clause therefor. All the sentences were ordered to run concurrently with further benefits under Section 428 Cr. P.C. So far as A-3 (Haroon) is concerned, he was sentenced in addition to undergo 2 years R

Click Here to Read the rest of this document

2003 Supreme(SC) 1239

IMPORTANT POINTThere cannot be any abstract general rule that evidence of witness regarding identity of accused not known to witness prior to incident would be inacceptable in absence of prior test identification parade.

Cases Referred (2)

IMPORTANT POINT
There cannot be any abstract general rule that evidence of witness regarding identity of accused not known to witness prior to incident would be inacceptable in absence of prior test identification parade.