Important pointIdentification of accused at test identification parade would not constitute substantive evidence and in absence of identification in Court at the trial, result of TIP will be of little value.

Headnote:Indian Penal Code, 1860—Section 396—Dacoity with murder—Dacoits 20 in number, at about 11 P.M. came to house of deceased, fired gun shot at deceased and PW4, brother of deceased with also inflicted injuries by lathi and rod blows—Articles were looted and taken away—Appellant with seven other accused were tried on the charge and four were acquitted by trial Court and three other were acquitted by High Court and conviction of appellant alone was confirmed—Whole case of prosecution rested on credibility of identification, said to have been made by four witnesses in course of test identification parade—Identification of accused at test identification parade is not substantive evidence and could not be relied in absence of witness identifying accused in Court—PW5, eye witness, admitted that accused had covered their faces with clothes except eyes and nose—It would not be probable and natural course of conduct that PW1, a neighbour, during course of dacoity would come on spot, flash a torch and identify appellant as one of the accused—There was no recovery of any property nor any other corroboration to link appellant with crime—Conviction of appellant could not be sustained. (Paras 9 to 12 and 15)

Judgment

P. Venkatarama Reddi, J.—The appellant along with seven others were charged by the Additional Sessions Judge, Madhubani under Section 396 IPC for committing dacoity on the night of 28.5.1994 in the course of which one of them fired at and killed one of the inmates of the house, namely, Rajendra Thakur. Four were acquitted by the trial Court and on appeal by the remaining four accused, three were acquitted by the High Court. The appellant alone was convicted under Section 396 IPC and sentenced to life imprisonment. It appears that the appellant has so far undergone imprisonment for about six years.

2. PW1 - a neighbor, PW3— the minor daughter of the deceased, PW4 — the brother of the deceased who was also injured by the marauders and PW5 — the sister-in-law of the deceased are the eye-witnesses. Though the information in regard to the incident was supposed to have been conveyed to the police station by PW1, the FIR was not recorded on that basis. However, the police arrived at the scene at about 2 a.m. and then recorded the statement of PW5 i.e. the sister-in-law of the deceased, which was treated as First Information Report.

3. According to the statement of PW5 as incorporated in the FIR, at about 11 p.m., she and other inmates of the house were sleeping and on hearing the voice of his elder brother — PW4 who was sleeping beyond the main doorway, Rajendra Thakur — the deceased opened the main door and the informant — PW5 and PW3 also went behind him. She saw four persons in full pants and half shirts standing at the gate and another wearing a black full pant and full shirt with checks. Soon after Rajendra Thakur opened the door, the person wearing the black full pant fired at him as a result of which Rajendra Thakur collapsed instantaneously. Thereafter, she beseeched the miscreants not to harm and to take away whatever articles they wanted. Still, they inflicted injuries with dagger on the body of Rajendra Thakur even after he fell down and one of them also attacked her with a lathi. They also injured her husband Laxman Thakur — PW4 with lathi and rod as a result of which he became unconscious. Four/Five dacoits entered the house and went on a looting spree for about 15 minutes. On the alarm raised by the villagers, dacoits who were 20 in number fled away with looted articles. Rajendra Thakur succumbed to the injuries then and there. She stated that the details of looted articles will be furnished by the wife of Rajendra Thakur and other family members who had gone to the hospital. According to her, the dacoits were young men wearing dhothi, full pant, half shirt etc. and they had fire arms, dagger, lathi and torches with them and were speaking Hindi and Mithili languages. She also stated that her husband would disclose the identity of the dacoits on coming to senses and her other family members will identify the looted articles if recovered. Informant also stated that three dacoits have covered their faces with ‘galmocha’. The statement was recorded in the presence of her son-in-law and sambandhi.

4. PW10 is the main investigating officer. He stated that after coming to know of the dacoity, he went to the place of occurrence with armed police at about 12.15 a.m. He noticed the dead body of Rajendra Thakur and he could not record the statement of Laxman Thakur as he was senseless and therefore he recorded the statement of the wife of Laxman Thakur — PW5. He found cash box and wooden almirah in broken condition and the articles therein lying helter-skelter. He also found the Godrej almirah in broken condition and found the articles therein on the ground in a disturbed condition. He held the inquest over the dead body and took steps to have the postmortem conducted. The injured Laxman Thakur — PW4 was sent to hospital. On the basis of information collected during investigation, he arrested four accused, the appellant being one of them. Then he took steps to have the test identification parade done by the judicial Magistrat

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2005 Supreme(SC) 77

Important pointIdentification of accused at test identification parade would not constitute substantive evidence and in absence of identification in Court at the trial, result of TIP will be of little value.

Cases Referred (2)