The identification of the accused in the open Court is a substantive evidence, while the conduct of identification parade during the investigation has a corroborative value.

Headnote:
Identification Evidence - Criminal Appeal - The identification of the accused in the open Court is a substantive evidence. The conduct of identification parade during the investigation, though a very important piece of evidence has, at the most, a corroborative value. The judgment relied on the judgments of Supreme Court to support the finding that the identification of the accused during the recording of evidence is substantive one and the conclusions drawn or the result of identification proceeding has a corroborative value only.
Fact of the Case:

The witnesses denied having been shown the face of the accused before the test identification parade was carried out. The evidence given by both the witnesses on this count is quite emphatic and convincing. The evidence produced by prosecution proves the fact that there were more than five persons who committed the dacoity.
Finding of the Court:

The learned trial court elaborately dealt with the evidence produced by the prosecution and found the charges as having been proved beyond reasonable doubt. The judgment relied on the identification of the accused during the recording of evidence as substantive evidence and the conduct of identification parade as having a corroborative value only.
Issues: The identification of the accused, the number of persons involved in the dacoity, and the regularity of identification proceedings were key issues in the case.
Ratio Decidendi: The identification of the accused in the open Court is a substantive evidence, while the conduct of identification parade during the investigation has a corroborative value. The judgment relied on the judgments of Supreme Court to support this finding.
Final Decision: The criminal appeal was dismissed, and the accused-appellant was ordered to immediately surrender before the court concerned to undergo the remaining portion of the sentence. The sureties were discharged from their liability.

JUDGMENT :

1. Heard Smt. Nisha Srivastava, learned counsel for the appellant, Sri Yugal Kishore, learned A.G.A. for the State and perused the material brought on record.

2. By means of this criminal appeal, the sole appellant-Daya Ram Pasi has challenged the order dated 22.03.2008 passed by learned Additional Sessions Judge, Court No.29, Barabanki in S.T. No.192 of 1993 arising out of Case Crime No.10 of 1991, under sections-395/397 I.P.C., Police Station-Ram Nagar, District-Barabanki, whereby the accused-appellant has been convicted and sentenced for seven years rigorous imprisonment with fine of Rs.10,000/-.

3. The facts relating to this appeal are as below:-

* As per prosecution case, the first informant-Bhai Lal, on the basis of hand written tehrir, got lodged an F.I.R. The tehrir said that the previous night at about 1:00 a.m., some burglers, with the help of a bamboo climbed over his roof and intruded inside to commit theft. Hearing some noise, his wife woke up and raised alarm. The first informant tried to catch hold of them, but they roughed him up with the danda held by them; they were seven persons. The first informant could see their faces in the light of lantern; they also thrashed his father-in-law, who was lying in the veranda. They took away a number of items made up of gold and silver (as detailed in the tehrir). After committing dacoity in his house, they entered in the house of Maya Ram and Satguru, who resided in his immediate neighbourhood. The first informant, Maya Ram, Satguru, Muneshwar Prasad, Hinsit Lal and a number of co-villagers collected on their raising alarm; all of them saw the dacoits taking away their belongings. When the villagers tried to follow them, they threw grenades on them.

* On the basis of this written report, an F.I.R. being Case Crime No.10 of 1991, under section-459 I.P.C. was registered and investigated upon; one of the accused Daya Ram Pasi was charge-sheeted by submitting a supplementary charge-sheet under sections-395 and 397 I.P.C.

* The Investigating Officer visited the spot and prepared the site map, separate seizure memos of taking into possession the lantern, the torch, the bamboo; collected the medical examination reports of Ishwardeen, Bhai Lal and Arvind Kumar; the suspected accused persons were put to identification test in District Jail, Barabanki and instant accused Daya Ram Pasi was identified by the witnesses and charge-sheeted.

* The accused was put to trial and was convicted for the offence under sections-395 read with 397 I.P.C. and was sentenced to seven years rigorous imprisonment and a fine of Rs.10,000/-. Now, the convict-appellant is before this Court in this appeal.

4. Besides producing the prosecution papers viz. photocopy of tehrir, copy of identification test, chik F.I.R., charge-sheet, site-map, the X-ray reports and the injury reports, the prosecution examined P.W.1-Rama Devi @ Phoolmati, P.W.2-Arvind Kumar and P.W.4-Maya Ram as the eye-witnesses; P.W.3-Bhai Lal (the first informant and the eye-witness), P.W.5-S.I. Om Prakash (the Investigating Officer), P.W.6-S.I. Raghunandan Prasad (the Investigating Officer) and P.W.7-Dr. Madan Lal.

5. Before I proceed to take the contentions of the defence, it shall be useful to briefly mention the oral testimony given by the prosecution witnesses.

* P.W.1-Ram Devi @ Phoolmati has stated that she with her children was sleeping on the roof. The dacoits climbed over and asked her to open the door. She refused to budge. They broke upon the door and tried to manhandle and drag her inside. She managed to extricate herself and jumped on the ground. They were five in all. They opened the main door from inside. The dacoits who were standing outside intruded. They assaulted her husband; took away cash of Rs.800/-, the silver and gold jewellery worth Rs.1 lakh; initially his husband refused to tell them about the place where jewellery etc. was kept safe, but when they threatened to put him on fire after pouring kerosene, her husban