The court held that the conviction of an accused person cannot be based solely on identification in court, without a prior test identification parade, and that the recovery of stolen articles from the accused's house, on being produced by him while in custody, is admissible as a piece of conduct under Section 8 of the Evidence Act.

JUDGMENT :

G.B. Patnaik, J. - The two Petitioners along with five others were tried by the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Sundargarh, for offences under Sections 395 and 412, Indian Penal Code, on the allegations that on the night of 11-4-1980 while Kulamani (P.W. 1) was sleeping in his house with his family members, he saw four persons entering into his house with daggers and lathis and they assaulted P.W. 1 and snatched away ornaments from his wife and took away cash worth Rs. 3,000/-. When. Kulamani raised hulla, villagers came and seeing villagers coming, the dacoits decamped. Kulamani was then taken to the Primary Health Centre. On the next day, a First Information Report was lodged at Talasara Police Station whereafter the police took up investigation. Several articles were seized and in course of investigation a Test Identification Parade was held in respect of suspects by the Sub-Divisional Judicial Magistrate, Sundargarh. On completion of investigation, charge-sheet was submitted against the seven accused persons.

2. The plea of the accused persons is one of denial.

3. The prosecution examined as many as sixteen witnesses. It is not necessary to discuss the evidence adduced by the prosecution in view of the points raised by Mr. Palit appearing for the Petitioners in the present case. It is sufficient for the present to note that out of the seven accused persons who stood their trial before the Assistant Sessions Judge, three of them were acquitted namely accused Dhaneswar Baiga, Muna alias Manbodh Lohara, and Michu Lohara on a finding that prosecution has failed to establish the charge against them. The learned Assistant Sessions Judge convicted accused Jogeya alias Jogesh Kumar Sha, Sada alias Sadananda Dehuri, Karunakar Naik and Brushabha Badaik u/s 395, Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years each. On appeal, the learned Sessions Judge acquitted accused Sadananda, but sustained the conviction of rest of the three accused persons, namely accused Jogesh, Karunakar and Brushabha. Of these three, Jogesh and Karunakar are the Petitioners in the present case.

4. Mr. Palit, the learned Counsel for the Petitioners, contends that the conviction of Petitioner Karunakar cannot be sustained in law, the said conviction being based solely on the identification in Court the earlier test identification parade having been held to be illegal and having been discarded by both the courts below. The learned Sessions Judge on discussion of the evidence has held that prior to the test identification parade, the identifying witnesses had a chance to see all the suspects and, therefore, the Assistant Sessions. Judge rightly held that no importance whatsoever should be attached to the test identification parade report. The learned Sessions Judge also discussed die evidence of P.W. 2, a co-villager, according to whom the accused persons were brought in a jeep to the house of P.W. 1 by the police after their arrest and before the so-called test identification parade was held. In this view of the matter, the courts below were fully justified in ignoring the test identification parade held by the Sub-Divisional Judicial Magistrate. It is true that the evidence regarding identification at the test identification parade is only a corroborative piece of evidence, but it assumes great importance in assessing the worth of the substantive evidence in Court regarding identification and it has been held in several cases that the evidentiary value of the evidence of a witness identifying an accused long after the occurrence is practically of no value. As has been held by the Supreme Court in the case of Kanan and Others Vs. State of Kerala, -

...It is well settled that where a witness identified an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. Parade to test his powers of observations. The idea of