2003(4) Crimes 166 (SC)
Supreme Court of India
(From Additional Designated Court-II, Delhi)
S. Rajendra Babu & G.P. Mathur, JJ.
Munna—Appellant
versus
State (N.C.T. of Delhi) —Respondent
Criminal Appeal No. 749 of 1999
Decided on 27-8-2003

Important Point
Where the accused himself declines to participate in a test identification parade, the prosecution has to rely upon the testimony of the witnesses identifying the accused in Court during the course of the trial.

Headnote:(i) Indian Penal Code, 1860—Sections 392/120B and 120B—Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 19—Evidence Act, 1872—Section 6—Robbery in house during day time—Four persons entered the house at 11.00 a.m., tied hands of PW3, broke open lock of steel almirah and removed currency notes worth Rs. 1.5 to 2 lakhs and other articles—PW3 and PW6 were inmates of house—PW5, Head Constable reached the spot after hearing shouts—All these three witnesses clearly stated that appellant was one of the robbers who took part in commission of the crime and jumped from balcony and ran away—PW3 assigned a very specific role of removing her golden bangles to appellant—Participation of appellant in crime in question proved—Appellant having himself declined to participate in test identification parade—Prosecution held justified in relying upon testimony of witnesses recorded in Court—Conviction of appellant as recorded by Designated Court affirmed.

       Held : The appellant has not been able to show any reason whatsoever much less establishing it as to why PW3, PW5 and PW6 have falsely implicated him. So far as PW3 and PW6 are concerned, they are residing in Delhi and the appellant is resident of Khurja town in the district of Bulandshahar. Both the prosecution witnesses are respectable persons having a reasonable good status in society. There is absolutely no reason why they would falsely implicate the appellant. The incident took place during day hours at about 11.00 a.m. when there was sufficient light. The hands of PW3 Smt. Sadhna Bablani were tied and a lungi had been inserted in her mouth and naturally in this process, the robbers were very close to her. She has specifically assigned the role of removing her golden bangles to the appellant. Her testimony shows that the robbers remained inside her house for about half an hour. During all this time, she had ample opportunity to closely see and identify the appellant. Similarly, her husband PW6 Prakash Bablani had got complete opportunity to see the robbers when he entered inside his house after breaking open the door. The process of jumping from the balcony of the first floor to the ground would have taken some time. PW5 Mohd. Akbar is a Head Constable who, by the very nature of his work and duty, is trained to recognise and apprehend criminals. The manner in which the crime was committed and the manner in which the appellant escaped after jumping from the first floor of the house clearly shows that the three witnesses got full opportunity to see and identify him. In these circumstances, there is no reason at all for not placing reliance upon their testimony. We have given careful consideration to the submissions made by learned counsel for the parties and the evidence on record. In our opinion, the prosecution has succeeded in establishing the case against the appellant beyond any shadow of doubt and the learned Designated Court rightly convicted and sentenced him. (Para 13)

       (ii) Evidence Act, 1872—Section 6—Identification in Court—Admissibility—Robbery case—Accused declining to participate in test identification parade—He was produced in Court ‘baparda’—Testimony of witnesses identifying accused in Court on the very next day of his arrest, held reliable—Indian Penal Code, 1860—Section 392/120B.

       Held : It is true that the normal rule is that testimony of a witness, who does not know an accused from before and identifies him for the first time in the Court as a person who had participated in the commission of the crime, without holding a previous identification parade does not carry much weight. The substantive evidence of a witness is the statement in Court but as a rule of prudence earlier identification proceedings are held in order to corroborate the testimony of a witness given in Court as regards the identity of the accused who is not known to him from before. However, this normal rule can have no application in the present case on account of own conduct of the appellant. The investigating officer produced appellant Munna 'baparda' (with his face muffled) in the Court of Metropolitan Magistrate on 15.2.1992 and an application was given praying that necessary orders be passed for holding his test identification parade. It was mentioned in the application that after his arrest Munna had been kept 'baparda' and is being pro­duced in Court in that condition. However, the appellant categorically refused to participate in a test identification parade. (Para 8)

       In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eye-witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in Court during the course of the trial of the case. (Para 9)

       The case in hand stands on much better footing. Though the prosecution moved an application before the Metropolitan Magistrate to hold a test identification parade, but it was the appellant who declined to participate in the same. In his statement under Section 313 Cr. P.C. the appellant Munna stated that he was arrested from his house in Khurja on 14.2.1992. He was produced in the Court of Metropolitan Magistrate on 15.2.1992 by the investigating officer of the case. In the application it was stated that he had been kept 'baparda' and was produced in Court 'baparda' as a rest identification parade had to be held. Had he not been produced in 'baparda' condition, the learned Metropolitan Magistrate would have recorded the said fact. It is not a case where there was a long time gap between the time of the arrest and his production in Court, as according to the own statement of the appellant, he had been arrested only on the previous day. In his statement under Section 313 Cr. P.C., he did not state that he had been shown to the witnesses at the police station. (Para 12)

       Result : Appeal dismissed.