2003 Supreme(SC) 1095

2003(8) Supreme 93
SUPREME COURT OF INDIA
(From Allahabad High Court)
N. Santhosh Hegde and B.P. Singh, JJ.
Lal Singh & Ors. -Appellants
versus
State of Uttar Pradesh -Respondent
Criminal Appeal No. 631 of 2001
With
SLP (Crl.) No. 4657 of 2003
(Crl. M.P. No. 7792 of 2002)
Decided on 4-11-2003
Counsel for the Parties :
For the Appellants : S.K. Debey, S.K. Chaturvedi and K.V. Mohan, Advocates.
For the Respondent : T.N. Singh and Pramod Swarup, Advocates.

IMPORTANT POINT
Delay in holding the test identification parade is not fatal where the conviction u/s 394 IPC is based not solely on the basis of identification in Court, but on the basis of other corroborative evidence, such as recovery of looted articles and evidence of eye witnesses.

Headnote:(i) Indian Penal Code, 1860-Sections 394 and 411-Train robbery-PW1 was carrying a sum of Rs. 3.5 lakhs kept in his holdall which he had kept under his head-Appellants snatching the holdall jumped out of running train-Identification of appellants by co-passengers PW3 and PW1-Ample opportunity for witnesses to see appellants as they were travelling in the same compartment-Recovery of currency notes bearing stamp of firm-High Court has undertaken a very meticulous and exhaustive analysis of entire evidence-Conclusions reached by High Court held reasonable, based on evidence on record-Whether prosecution has proved beyond reasonable doubt that appellants are real culprits-(Yes).

       Held that an offence of the nature with which we are concerned in the instant case, is committed more often than not, by persons who are unknown to the victims. The perpetrators of such crime are usually persons who are motivated by sheer greed to commit such offences. Such an offence does not fall within the category of those offences where an accused out of revenge or enmity commits an offence. In such cases, of course, the identity of the accused poses no problem. But in cases where the offence is usually committed by unknown persons with a criminal and professional background, it is only in very rare cases that they are known to the victim. In most cases of such nature the accused is an unknown person and the only evidence which may connect him with the crime is the evidence of identification in a test identification parade, and in some cases evidence of recovery of the articles which are the subject matter of robbery. Cases of robbery, therefore, mostly depend on such evidence. Moreover the arrest of the culprits in such cases is often delayed on account of the inherent difficulties which the prosecution naturally faces in such cases. The fact that the victim is not named in the first information report in a case of this nature is, therefore, not of much significance, The prosecution can prove its case on the basis of recovery of the articles which are the subject matter of the offence and identification of the culprits in a test identification parade. So far as the recovery of currency notes is concerned, we are satisfied that they were recovered from the appellants and they had been properly identified in court in the light of the fact that the currency note bundles contained slips bearing the seal of the firm and the signatures of PW.16. (Paras 26 & 27)

       When the occurrence took place, PW.1 was awake and was merely lying on his berth covering his face with a towel. As soon he noticed that his holdall was being pulled away, he jumped down from his berth and held the holdall. He was thereafter threatened by the person who was carrying a rifle. Thereafter the holdall was passed on from the first culprit to the second and then to the third and then to the last one who jumped out of the train and they also followed him. PW.1 also jumped out of the train in an attempt to catch hold of the culprit but on the advise of the passengers he came back to the compartment. The evidence of PW.3 is also to the same effect. He had noticed two of the persons wearing khaki uniform in Delhi when the train left the Delhi station. He had also woken up when there was a scuffle between PW.1 and the culprits. His presence in the compartment is fully established. He had seen the occurrence as it took place and his evidence is quite consistent with the evidence of PW.1. This witness is a dis-interested witness and there is no reason to suspect his testimony. The vague suggestions made against him have been critically scrutinized by the courts below which have found no substance in them. We are, therefore, satisfied that both the eye witnesses, namely PW.1 and PW.3 had ample opportunity to see the appellants who were travelling in the same compartment for about 7 hours. There was sufficient light in the compartment which facilitated their identification by the eye witnesses. (Para 29)

       In the instant case the conviction of the appellants is based not solely on the evidence of identification by PWs. 1 and 3 but also on the basis of the corroborative evidence in the form of recoveries of looted currency notes from the possession of the appellants. The substantive evidence of identification in Court is, therefore, supported by corroborative evidence which is unimpeachable in nature and, therefore, conviction of the appellants is fully justified. (Para 44)

       (ii) Indian Penal Code, 1860-Section 394-Robbery-Identification of miscreants-Delay in holding test identification parade-Appellants were arrested on 28-12-1980-They were put up for identification in a test identification parade on 4-2-1981-Delay held not inordinate in facts and circumstances of the case-Possibility of mistaken identity ruled out-Recovery of looted articles from possession of accused-Substantive evidence of identification in Court supported by corroborative evidence which is unimpeachable in nature-Conviction based on such evidence held fully justified.

       Held : The appellants were arrested on 28th December, 1980 and they were put up for identification in a test identification parade on 4th February, 1981. We do not think that this delay can be said to be inordinate in the facts and circumstances of this case. In any event having regard to the opportunity which the witnesses had to identify the appellants, the possibility of mis-taken identity must be ruled out. We have very carefully perused the evidence of PW.1 and PW.3 and we find that their evidence is trust worthy and implicit reliance can be placed on their testimony. We find no difficulty in acting on the identification by these witnesses. (Para 30)

       It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard and fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the Court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety. In the instant case we have found that the prosecution has successfully established the recovery of the currency notes from the possession of the appellants which were the subject matter of robbery. The currency notes have been duly identified having regard to the special features, namely -existence of chits on the bundles bearing the seal of the firm and the signatures of PW.16. PW.1 correctly identified all the appellants while PW.3 identified two of them, namely - Hukum Singh and Lal Singh. He, however, made no mistake in identifying the said appellants. We have already held that these witnesses had ample opportunity of noticing the facial features of the appellants since they had travelled in the same compartment for almost seven hours and there was sufficient light in the compartment. Moreover the delay in holding the test identification parade was not inordinate, and nothing has been elicited from the investigating officer as well as the Special Executive Magistrate who held the test identification parade that the appellants had been shown to the witnesses before holding of test identification parade or that there was any irregularity in holding the test identification parade. The prosecution also produced evidence which satisfactorily proves that right from the day of their arrest, they were kept baparda so as to rule out the possibility of their faces being seen while in police custody. No irregularity in the holding of the test identification parade has been pointed out. (Paras 43 & 44)