S. Talapatra, J.

1. Heard Ms. N. Guha, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Spl. PP appearing for the State-respondent. This petition filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (Cr.P.C. in short) is directed against the judgment and order dated 11.10.2004 as passed by the learned Sessions Judge, Udaipur, South Tripura, in Crl. Appeal No. 24(3) of 2004.

2. By that judgment and order dated 11.10.2004, learned Sessions Judge, Udaipur, South Tripura affirmed the judgment of conviction and order of sentence dated 02.08.2004 passed by the learned Judicial Magistrate, 1st Class, Udaipur, South Tripura convicting and sentencing the petitioner to pay a fine of Rs. 1,000/- for commission of offence punishable under Section 279 IPC and in default of making payment of fine to suffer SI for one month and he was further sentenced to pay a fine of Rs. 500/- for commission of offence punishable under Section 337 IPC and in default of making payment of fine to suffer SI for another 15 days and he is also sentenced to suffer RI for one year for commission of offence punishable under Section 304(A) IPC and also sentenced to pay a fine of Rs. 2,000/- for the same offence and in default of making payment of fine he was directed to suffer SI for another one month.

3. Ms. Guha, learned counsel for the petitioner submits that the impugned judgment of conviction is affected by two incurable defects. (1) The identification of the driver has not been established by any legal evidence and (2) the statement made under Section 313 Cr.P.C. has been treated as a substantive piece of evidence for the purpose of returning the judgment of conviction.

4. On the other hand, Mr. Debnath, learned Spl. PP for the State submits that the statement made admitting a fact by the accused while recording his statement of response to the prosecution's evidence under Section 313, Cr.P.C. is a substantive piece of evidence as the accused had been voluntarily making such statement, not under coercion by any mechanism for extracting such statement. The accused voluntarily admitted that fact. It can be treated as substantive piece of evidence which can be used as a basis for returning the judgment of conviction.

5. Mr. Debnath, learned Spl. PP further submits that the identification of the accused person for the first time in the Court is admissible in evidence and that can be used for the purpose of convicting the accused.

6. Ms. Guha, learned counsel for the petitioner, in support of her contentions, relied two Apex Court decisions and submits that the statement of the accused as recorded under Section 313 Cr.P.C. cannot be used as a substantive piece of evidence for returning a finding of conviction.

7. In Rabindra Kumar Pal @ Dara Singh Vs. Republic of India as reported in AIR 2011 SC 1436 wherein the Apex Court held in para-15 that:

15. In Jana Yadav Vs. State of Bihar, (2002) 7 SCC 295, para 38 : (AIR 2002 SC 3325), the following conclusion is relevant:

Failure to hold test identification parade does not make the evidence of identification in Court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in Court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law.

It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evi