2007 Supreme(SC) 15

2007(1) Supreme 717
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. Arijit Pasayat and Lokeshwar Singh Panta, JJ.
Amitsingh Bhikamsing Thakur—Appellant
versus
State of Maharashtra—Respondent
Criminal Appeal No. 13 of 2007
(Arising out of SLP (Crl.) No. 1114 of 2006)
Decided on 5-1-2007
Counsel for the Parties :
For the Appellant : Shekhar Prit Jha, Bipin Kumar Jha and A.K. Tiwari, Advocates.
For the Respondent : V.N. Raghupathy, Advocate.

IMPORTANT POINT
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 when he would be able to note the features of the accused more carefully.

Headnote:(i) Evidence Act, 1872—Section 9 —Identification of Accused—Substantive evidence is the evidence of identification in Court—Necessity for holding an identification parade—Delay in holding TIP not fatal when circumstances are beyond control.

       Held : 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 the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes 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. (Para 13)

       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 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.(Para 14)

       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. (Para 17)

       (ii) Evidence Act, 1872—Sections 25, 26 and 27—Scope and ambit—Discovery from open place—Admissibility—Expression ‘fact discovered’ in Section 27—It includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this—Requirements of Section 27 of the Act.

       Held : The various requirements of the Section can be summed up as follows:

       (1)The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

       (2)The fact must have been discovered.

       (3)The discovery must have been in consequence of some information received from the accused and not by accused’s own act.

       (4)The persons giving the information must be accused of any offence.

       (5)He must be in the custody of a police officer.

       (6)The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

       (7)Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. (Para 29)

       (iii) Indian Penal Code, 1860—Sections 396, 506, 341, 379 rw/s 120-B —Convictions—Dacoity with murder by firing a bullet at chest of deceased from a close distance—Complainant and his master were returning home with the daily earnings of his shop when a vehicle overtook them and occupants started demanding the money bag—Master gripped the money bag with more firmness when offender drawing out a pistol fired at his chest from a close range and fled away on the motorcycle—Inspite of bullet injury to the chest, deceased ran towards residence, but dashed against the window and fell down—Vehicle used in the crime was a stolen vehicle—Theft of vehicle was taken as part and parcel of the conspiracy—Trial Court relying on evidence of complainant PW1, PW10 and other relations of deceased convicted accused—High Court directing acquittal of A2 and A3, confirmed conviction of A1 and A4—Whether identification of accused through a test identification parade was reliable—(Yes)—Whether discovery made from an open space was admissible—(Yes)—Whether courts below were justified in convicting accused on basis of evidence of relation witnesses—(Yes).

       Held : When the evidence of PW1 and the identifications made at the Test Identification Parade and discovery in terms of Section 27 are considered, conclusions of the trial court, so far as affirmed by the High Court, do not suffer from any infirmity. At this juncture it is to be noted that learned counsel for the appellant has submitted that PW 1 was related to the deceased and therefore his evidence should be rejected. The plea is clearly without substance. Relationship would not result in the mechanical rejection of the testimony of the witnesses. Settled norms of appreciation of evidence required that the evidence of such witnesses is to be assessed with caution. In the instant case the trial court has analysed the evidence with care and caution and the High Court has also done so. (Para 31)

       Above being the position the plea relating to alleged interestedness of the witnesses has also no substance.(Para 32)