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2008(3) Supreme 111
SUPREME COURT OF INDIA
Dr. Arijit Pasayat & P. Sathasivam, JJ.
Mahabir — Petitioner
versus
The State of Delhi — Respondent
Appeal (crl.) 932 of 2007
with
(Criminal Appeal no. 1475 of 2007)
Decided on : 11-04-2008
(B) Criminal Law — Identification — Identification Proceedings are in the nature of tests — The test is done to check the veracity of claim of witnesses about identification of culprits — However, necessity for holding identification parade can arise only when accused are not previously known to witnesses —Test identification parade should be conducted as soon as possible to eliminate the possibility of accused being shown to witnesses prior to test identification parade — If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to prosecution. (Para 11)
(C) Indian Evidence Act, 1872 — Section 9 — Code of Criminal Procedure, 1973 — Section 162 — Substantive evidence of a witness is the statement made in court—Evidence of mere identification of accused at the trial for the first time is from its very nature inherently of a weak character—It is a safe rule of prudence to look for corroboration of sworn testimony of witnesses in court as to the identity of accused who are strangers to them, in the form of earlier identification proceedings — There is no provision in the Code which obliges the investigating agency to hold or confers right upon 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 test identification parade would not make inadmissible evidence of identification in court — Weight to be attached to such identification should be a matter for courts of fact — In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (Para 12)
(D) Criminal Law — Identification in court — Scope of admissibility as evidence — Much evidentiary value can not be attached to identification of 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 identification is made for the first time in court — However, it can not be held that in absence of test identification parade, evidence of eye-witnesses identifying the accused would become inadmissible — Whether the evidence deserves credence or not would always depend on the facts of each case. (Paras 15 and 19)
(E) Indian Penal Code, 1860 — Sections 394/34 and 302/34 — Fatal hurt caused in course of robbery in household — Two accused appellants facing conviction — Conviction and sentence as recorded by Trial Court, affirmed by High Court — Test identification parade was of no consequence because accused persons were already shown to witnesses — That being only piece of material used for conviction of one accused, same cannot be sustained — Conviction of one accused set aside — In respect to another accused whose name was specifically noted in FIR and whose identification was established, his appeal dismissed. (Paras 21 and 22)
AIR 1958 SC 350; AIR 1960 SC 1340; AIR 1970 SC 1321; AIR 1972 SC 102; (1970) 3 SCC 518; (1971) 2 SCC 75; (1973) 2 SCC 406; Cr.A. No. 92 of 1956; AIR 1971 SC 363; (1975) 4 SCC 480; (1996) 8 SCC 630; (1979) 1 SCC 31; 1995 Supp. (1) SCC 80; (2000) 1 SCC 358; AIR 1980 SC 1382; AIR 2000 SC 160; AIR 1999 SC 3916; (2003) 5 SCC 746—Referred.
Facts of the Case :
1. Robbery was committed in a household.
2. Valuables were robbed and maid servant was strangulated to death by the culprits.
3. TIP was conducted and complainant correctly identified the articles and jewellery recovered from possession of appellant.
4. Conviction and sentence affirmed by High Court giving rise to present appeal.
Findings of the Court :
Substantive evidence of witness is his evidence given in court. High Court rightly dismissed the appeal of one accused.
Result : Appeal partly allowed.
पहचान परेड (TIP) का मुख्य उद्देश्य गवाहों की स्मृति की जांच करना है, जो प्रथम दृष्टि पर आधारित होती है, ताकि अभियोजन तय कर सके कि कौन से गवाह अपराध के प्रत्यक्षदर्शी के रूप में पेश किए जा सकते हैं। (!) यह जांच एजेंसी को यह आश्वासन देती है कि जांच सही दिशा में आगे बढ़ रही है। (!)
यह मूलभूत साक्ष्य नहीं है, बल्कि कोर्रोबोरेटिव साक्ष्य (पुष्टिकरण साक्ष्य) मात्र है, जो अदालत में गवाह के बयान की पुष्टि करता है। (!) (!) (!) गवाह का मूल साक्ष्य उसका अदालत में दिया गया बयान ही है। (!) (!)
कानूनी स्थिति: - यदि आरोपी गवाह को पूर्व से ज्ञात हो, तो TIP की आवश्यकता नहीं। (!) (!) (!) - यह जांच जल्द से जल्द होनी चाहिए, ताकि आरोपी को गवाह को दिखाने की संभावना न रहे। यदि परिस्थितियां अनियंत्रित हों और विलंब हो, तो यह अभियोजन के लिए घातक नहीं। (!) - CrPC में कोई प्रावधान नहीं जो जांच एजेंसी को TIP आयोजित करने के लिए बाध्य करे या आरोपी को इसका अधिकार दे। (!) (!) TIP की अनुपस्थिति से अदालत में पहचान का साक्ष्य अमान्य नहीं होता। (!) (!) - अदालतें TIP पर निर्भर किए बिना भी पहचान के साक्ष्य को स्वीकार कर सकती हैं, यदि परिस्थितियां उपयुक्त हों। (!) (!)
सीमाएं और कमजोरियां: - यदि आरोपी को पहले ही गवाह को दिखा दिया गया हो (जैसे गिरफ्तारी के समय), तो TIP का कोई मूल्य नहीं। (!) (!) - अदालत में प्रथम बार पहचान, विशेषकर यदि गवाह को क्षणिक दृष्टि या अपरिचित व्यक्ति हो, कमजोर होती है और पुष्टिकरण की आवश्यकता होती है। (!) (!) - TIP दोषसिद्धि का निर्णायक कारक नहीं हो सकता। (!) यह केवल सावधानी का नियम है, न कि अनिवार्य। (!)
निष्कर्ष: TIP जांच चरण का हिस्सा है (CrPC की धारा 162 के अधीन), जो साक्ष्य की विश्वसनीयता बढ़ाता है, किंतु अदालत में पहचान पर वास्तविक भार निर्भर करता है। प्रत्येक मामले के तथ्यों पर विचार आवश्यक। (!) (!) (!)
JUDGMENT
Dr. Arijit Pasayat, J. —
1. These two appeals are directed against the common judgment of the Delhi High Court in Criminal Appeal nos.430 of 2002 and 328 of 2005. It needs to be noted that by the said common judgment three appeals i.e. Criminal Appeal nos 430/2002, 545/2003 and 328/ 2005 were disposed of.
2. Appellant-Mahabir (appellant in Criminal Appeal no.932 of 2007) was appellant in Criminal Appeal no.430 of 2002 and appellant Jalvir (appellant in Criminal Appeal no.1475 of 2007 was appellant in Criminal Appeal no.328 of 2005). Each of them was convicted for offence punishable under Section 394 read with Section 34, and section 302 read with section 34 of the Indian Penal Code, 1860 (in short ‘IPC’), and was sentenced to imprisonment for 10 years with fine and imprisonment for life with fine respectively, with default stipulation in each case for the aforesaid offences.
3. Background facts in a nutshell are as follows :
Smt. Seema Sharma gave statement to the police alleging that on 24.2.1997 at about 4.15 p.m. she was present in her house bearing No.28-B, pocket-B Sidharth Extension, New Delhi when she heard her door bell ringing and her maid servant Kamla @ Kharpai went to open the door. Accused Jalveer who is related to the complainant along with his three associates entered the house. Complainant was standing in the balcony where all the four reached. All the three associates of Jalveer took out knives, Jalveer also took out knife from his pocket. Two of the associates of accused Jalveer caught hold of the complainant and dragged her to her bed room where she was beaten and accused made enquiries about gold kept in her house and when she did not give any information, they kicked her on her stomach. They removed a gold chain along with locket and jumkas with chain from her ear. When Kamla, the maid servant of the complainant, tried to intervene, two of the associates of the accused Jalveer tied a blouse around the neck of the complainant as a result of which she became unconscious for sometime. After sometime she heard the screams of Kamla @ Kharpai, her maid servant, and when she saw, a nylon string was tied around her neck and she was lying on the floor, Jalveer along with his associate thereafter fled away from the spot. Complainant was admitted in the hospital. Police party reached at the spot, dead body of Kamla was removed to AIIMS where postmortem was conducted on her dead body. Subsequently, accused Mahabir and Mahesh were arrested by the police of police station Hazarat Nizamuddin. A VCR, ear rings of this case belonging to complainant were recovered from their possession. They made disclosure statements regarding this case therefore, they were arrested in the present case. Police applied for holding TIP of accused Mahesh and Mahabir but they refused to join the proposed TIP. The TIP of jewelery articles and VCR recovered from the accused Mahabir and Mahesh was done by the Metropolitan Magistrate. The complainant correctly identified the articles as well as the jewelery recovered from the possession of these accused persons. Subsequently, accused Jalveer was arrested in this case and Roopa was also formally arrested in this case after production warrants were issued. Photographs of the place of incident were taken, site plan was got prepared, finger prints were lifted from the place of incident. Statement of witnesses were recorded by the police and after investigation of the case they came to the conclusion that the accused persons committed the murder of maid servant Kamla and they also committed robbery in the house of the complainant. Accordingly, challan was filed.
After complying with the provision of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) learned Metropolitan Magistrate committed the case to the court of Sessions which in turn assigned the same to learned Additional Sessions Judge for trial in accordance with law.
4. In order to
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