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2007(4) Supreme 816
Supreme Court of India
(From Rajasthan High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
Heera & Anr. — Petitioners
versus
State of Rajasthan — Respondent
Appeal (crl.) 1307 of 2006
Decided on : 20-06-2007
(1971) 2 SCC 75; (1973) 2 SCC 406 – Relied upon.
b)Code of Criminal Procedure, 1973 – Section 162 – 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)
AIR 1958 SC 350; AIR 1960 SC 1340; AIR 1970 SC 1321; AIR 1972 SC 102; (1970) 3 SCC 518; Criminal Appeal No. 92 of 1956 decided on January 15, 1957; (1975) 4 SCC 480; (1996) 8 SCC 630 – Relied upon.
c)Criminal Trial – Test Identification Parade – 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 – 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. (Paras 13 and 14)
1995 Supp (1) SCC 80; (1979) 1 SCC 31; (2000) 1 SCC 358; (2005) 9 SCC 631 – Relied upon.
d)Indian Penal Code, 1860 – Section 395 – The accused persons having been identified by PWs 1 and 11 and there being no infirmity in their evidence and additionally, evidence of PW 22 clearly showing adoption and compliance of all requisite formalities with regard to Test Identification Parade – In that view of the matter there is no merit in the appeal – Dismissed. (Para 17)
Facts of the case :
On 24.1.1997 Prem Singh lodged an oral report alleging inter alia that he is working at Lavri Petrol Pump for last 3 years. In the night at about 2 O’ clock, since vehicles were not coming for filling up petrol, they were taking rest in the office. Outside the office, two tankers were lying. In office, cook Kanhaiya Lal, Bhim Singh and Fateh Singh were sleeping. At that time, about seven persons wearing pant-shirt and sweater came there and started throwing stones towards the office, due to which the glasses were broken. Three of the accused persons came towards them and started beating them with lathis, for which he lifted a lathi and started giving blows to the accused by lathi, on which all the accused fell on him. Two persons started breaking the cash box. Complainant Prem Singh raised hue and cry, hearing which neighbour Sh. Bhagwati Prasad Joshi came there. He was also beaten by the accused persons. The accused persons took away the cash lying in the cash box. Complainant received injuries on his face and hands. The accused persons had taken away a sum of Rs.10-12 thousand lying in the cash box.
On this report a case under Section 395 IPC was registered and on completion of investigation, charge sheet was filed. Accused persons pleaded innocence and claimed trial. The trial court found evidence of witnesses to be credible and cogent. It is to be noted that in the Test Identification Parade the present appellants were identified. Recoveries were also made pursuant to the information given by them in terms of Section 27 of the Indian Evidence Act, 1872. Trial Court convicted all the seven accused persons and in appeal conviction of present appellants was maintained by the High Court.
Findings of the Court :
All requisite formalities with regard to Test Identification Parade have been adopted and followed. No merit in the appeals.
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur upholding the conviction of appellants for offence punishable under Section 395 of the Indian Penal Code, 1860 ( in short the ‘IPC’). Custodial sentence of 10 years with fine of Rs.2000/- each with default stipulation as imposed by the trial Court was maintained. However, five co-accused were acquitted.
2.Background facts in a nutshell are as follows :
On 24.1.1997 Prem Singh lodged an oral report alleging inter alia that he is working at Lavri Petrol Pump for last 3 years. In the night at about 2 O’ clock, since vehicles were not coming for filling up petrol, they were taking rest in the office. Outside the office, two tankers were lying. In office, cook Kanhaiya Lal, Bhim Singh and Fateh Singh were sleeping. At that time, about seven persons wearing pant-shirt and sweater came there and started throwing stones towards the office, due to which the glasses were broken. On this they wake up. Three accused persons came towards them and started beating them with lathis, for which he lifted a lathi and started giving blows to the accused by lathi, on which all the accused fell on him. Two persons started breaking the cash box. Complainant Prem Singh raised hue and cry, hearing which neighbour Sh. Bhagwati Prasad Joshi came there. He was also beaten by the accused persons. The accused persons took away the cash lying in the cash box. Complainant received injuries on his face and hands. The accused persons had taken away a sum of Rs.10-12 thousand lying in the cash box.
3.On this report a case under Section 395 IPC was registered and investigation commenced. On completion of investigation, charge sheet was filed. Thirty seven witnesses were examined by the prosecution to further its version. Accused persons pleaded innocence and claimed trial. The trial court found evidence of witnesses to be credible and cogent. It is to be noted that in the Test Identification Parade (in short the ‘TI Parade’’). A1-Heera, A-6 Nopa i.e. the present appellants were identified. Recovery were also made pursuant to the information given by them in terms of Section 27 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). The TI Parade of the accused persons was conducted through Shri Mahendra Kumar, Civil Judge and Judicial Magistrate. PW-1-Prem Singh identified A1 and A6. PW-11- Bhanwar Singh identified A1- Heera. As noted above, trial Court convicted all the seven accused persons and in appeal conviction of present appellants was maintained by the High Court.
4.Learned counsel for the appellants in support of the appeal submitted that the seven persons were arrested. There was no reason as to why only appellants were held guilty. PW 4-Bhagwati Prasad was a neighbour of the victim. It was also submitted that the evidence of the PW 22- Puran Puri does not show that all the requisite formalities were adopted before the Test Identification Parade was conducted.
5.Learned counsel for the respondent on the other hand supported the judgment of the High Court.
6.As was observed by this Court in Matru v. State of U.P.,1 [(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,2 [(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.
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