RAJA versus STATE BY THE INSPECTOR OF POLICE on 10 December 2019

[2019] 17 S.C.R. 1187

RAJA

v.

STATE BY THE INSPECTOR OF POLICE

(Criminal Appeal No.740 of 2018 Etc.)

DECEMBER 10, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Penal Code,1860:

ss. 394, 396, 449, 395/397 – Prosecution under – Of sevenaccused – Five injuredeye-witnesses – Accused Nos.1 to 6 wereidentified in Test Identification Parade by all the eye-witnesses –Conviction by trial court of the six accused and accused No.7acquitted – High Court affirmed the order of trial court – Appealto Supreme Court by the convicted accused – Held: In thecircumstances of the case, the presence and participation ofaccused Nos. 1 to 6 stood proved through eye-witness account –There is no infirmity in the evidence of identification by the eye-witnesses – Conviction affirmed.

Test Identification Parade(TIP):

Evidentiary value of – TIP which is part of investigation,affords a platform to lend corroboration to the ultimate statementsmade by the witness before the court – Weightage to such TIP isto be considered in the facts and circumstances of each case – Incases where material on record sufficiently indicates the reason for“gaining an enduring impression of the identity on the mind andmemory of the witnesses”, non-holding of TIP in such cases wouldnot be fatal to prosecution case.

Dismissing the appeals, the Court

HELD: 1.1 What is substantive piece of evidence ofidentification of an accused, is the evidence given during thetrial. However, by the time the witnesses normally step into thebox to depose, there would be substantial time gap between thedate of the incident and the actual examination of the witnesses.If the accused or the suspects were known to the witnesses frombefore and their identity was never in doubt, the lapse of timemay not qualitatively affect the evidence about identification of

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Asuch accused, but the difficulty may arise if the accused wereunknown. In such cases, the question may arise about thecorrectness of the identification by the witnesses. The lapse oftime between the stage when the witnesses had seen theaccused during occurrence and the actual examination of thewitnesses may be such that the identification by the witnessesBfor the first time in the box may be difficult for the court to placecomplete reliance on. In order to lend assurance that thewitnesses had, in fact, identified the accused or suspects at thefirst available opportunity, the TIP which is part of theinvestigation affords a platform to lend corroboration to theCultimate statements made by the witnesses before the Court.However, what weightage must be given to such TIP is a matterto be considered in the facts and circumstances of each case.There is no hard and fast rule about the period within which theTIP must be held from the arrest of the accused. [Para 15] [1198-G-H; 11998-A-C]D

1.2 If the material on record sufficiently indicates thatreasons for “gaining an enduring impression of the identity onthe mind and memory of the witnesses” are available on record,the matter stands in a completely different perspective. In suchcases even non-holding of identification parade would not be fatalEto the case of the prosecution. In the present case, in view ofthe fact that each of the eyewitnesses had suffered number ofinjuries in the transaction, it can safely be inferred that everyone of them had sufficient opportunity to observe the accusedto have an enduring impression of the identity of the assailants.FIt is not as if the witnesses had seen the assailants, in a moband from some distance. Going by the injuries, the contact withthe accused must have been from a close distance. [Para 18][1205-G-H; 1206-A]

1.3 Furthermore, in the present case all the accused werearrested on 21.06.1999 except Accused No.6 who surrenderedGbefore the Magistrate on 22.06.1999 and was remanded tojudicial custody. After securing permissions from the Magistrate,the police custody of Accused No.6 was obtained on 01.07.1999and the TIP was held on 01.07.1999 itself. There was, thus, nodelay on part of the investigating machinery in getting TIP heldHon 01.07.1999. [Para 19] [1206-B]

1.4 With respect to PWs 1, 2 and 3, though there is someroom to say that the accused were shown to the witnesses whilethey were in custody, that part by itself may not be sufficient.Testimonies of PWs 4 and 5 stand on a different footing. [Para21] [1206-G-H; 1207-A]

1.5 The facts on record thus indicate with clarity that: (a)There was no delay in holding the test identification parade andthe delay, if any, was attributable to the fact that one of theaccused was in judicial custody whose presence had to besecured only after appropriate permissions from the court; (b)It is not the case of the accused that Accused No.6 was evershown to any of the witnesses. The test identification parade ofAccused No.6 has no infirmity on any count and all the witnessesconsistently identified said Accused No.6; (c) Out of five injuredwitnesses, two had completely denied that either the accusedor their photographs were shown to the witnesses, while otherthree did accept the suggestion in that behalf; and (d) All thewitnesses were injured in the transaction with number of injuries.It can, therefore, safely be stated that every one of them hadadequate and proper opportunity to observe the features of eachof the accused. [Para 22] [1213-C-F]

Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1: [2010] 4 SCR 103 – relied on.

Pramod Mandal v. State of Bihar (2004) 13 SCC150 : [2004] 4 Suppl. SCR 479 ; Wakil Singh v. Stateof Bihar (1981) Suppl. SCC 28 ; Subhash v. State ofUttar Pradesh (1987) 3 SCC 231 ; Soni v. State ofUttar Pradesh (1982) 3 SCC 368 ; Daya Singh v. Stateof Haryana (2001) 3 SCC 468 : [2001] 1 SCR 1115

– referred to.

2. Considering the totality of circumstances on record, thepresence and participation of the Accused Nos.1 to 6, provedthrough the eyewitness account. There is no infirmity in theevidence of identification by PWs 1 to 5. Consequently, theAppellants were rightly found guilty of the offences with whichthey were charged. Their conviction and sentence is affirmed.[Para 23, 24, 25] [1213-G; 1214-B]

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ACaseLawReference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.740 of 2018C

From the Judgment and Order dated 27.04.2016 of the HighCourt of Judicature at Madras in D.B. Criminal Appeal No. 604 of2012

With

DCriminal Appeal Nos. 1608-1609 of 2018.

Gopal Shankaranarayan, Sr. Adv., Rahul Shyam Bhandari,Konark Tyagi, Ms. Bhavya Vijay Tangri, K. Paari Vendhan, PrabhuRamasubramanian, Vishnu Unnikrishnan, William Vinoth Kr, VishalSinha, Advs. for the Appellant.

EM. Yogesh Kanna, S. Raja Rajeshwaran, Misha Aggarwal, Advs.for the Respondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. Criminal Appeal No. 740 of 2018 (preferred by originalFAccused No. 1) and Criminal Appeal Nos. 1608-1609 of 2018(preferred by original Accused Nos. 2, 3, 5 and 6) challenge the commonjudgment and order dated 27.04.2016 passed by the High Court ofJudicature at Madras dismissing Criminal Appeal Nos. 604 of 2012 and92 of 2013 preferred by said accused as well as original Accused No.G4 (who is stated to have expired since then).

2. The case of the prosecution as set out in paragraphs 2.1 to2.3 of the judgment under appeal is as under:- “… …Mr. Sengoda Goundar was the father of P.Ws. 1 and 3and husband of P.W.2. P.W.4 is the wife of P.W.3 and theHdaughter-in-law of the deceased. P.W.5 is the grandson of the deceased and P.W.2. P.Ws. 3 and 4 had a child also and all ofthem were living together under one roof in Nallavumpatti village.

2.2 On 27.05.1999, P.Ws. 1 to 5, after having their dinner, hadfallen asleep. The house of P.W.1 and others is facing towardswest. P.W.1 was sleeping in the room situated on the northernportion of the house. P.Ws. 3 and 4 along with the child weresleeping in the room situated on the southern portion of the house.P.W.5 was sleeping on the pial situated on the veranda in frontof the said house. Just opposite to the said house, on the westernside, the tractor shed belonging to them is situated. The deceasedSengoda Goundar and his wife (P.W.2) were sleeping in the saidtractor shed.

2.3 Around 09.30 p.m., they went to the respective place to sleep.When they were fast asleep, around 01.00 a.m. on 28.05.1999,these appellants (accused 1 to 6) came to the house of thedeceased in order to commit dacoity. They first went into thetractor shed and started mounting attack with deadly weaponson the deceased. The deceased cried for help which awakenedP.W.2. These accused indiscriminately attacked P.W.2 also. Sheraised alarm and cried for help. On hearing the cry of thedeceased and P.W.2, P.W.1 who was sleeping in the roomsituated on the western portion of the house, opened the maindoor from inside and came out. On seeing him, some of theaccused attacked him with deadly weapons like knife andwooden log. Since the attack was so violent, unable to bear thesame and in order to avoid further blows being made, P.W.1crying for help, tried to rush inside the house. By the time, onhearing the alarm raised, P.W.3 came out of the house. Someof the accused, attacked him with weapons. He sustainedbleeding injuries. With a view to save himself from further attack,he rushed into the house and went into the room where his wifewas sleeping. The assailants did not stop. They gave a chase,entered into the said room and indiscriminately attacked P.W.3and his wife (P.W.4) with weapons. Both sustained a numberof bleeding injuries. P.W.5 who was sleeping at the Pial,awakened by the cry, rushed out. He was also attacked. Raisingalarm, he rushed towards the house of one Thaluka Goundar.These assailants, barged into the house, looted the properties.Number of jewels worn by the witnesses were snatched away AB

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Aby the accused. They broke open the steel bureau in the houseand committed theft of the jewels. All happened with a shorttime. Even before the villagers could gather at the place ofoccurrence, the accused fled away from the scene of occurrencewith decamped valuable jewels and other articles. P.Ws. 1 to 5and the deceased were struggling for life due to the bleedingBinjuries. The villagers immediately rushed all of them to theGovernment hospital at Uthangarai.”

3. All the victims were taken to the hospital, where SengodaGoundar was declared dead. The following injuries were found on theperson of the deceased.C

“1. Abrasion 4 cm x 4 cm left shoulder.

2. Contusion 10 cm x 10 cm left wrist.

3. Contusion 10 cm x 10 cm right wrist.

4. Lacerated wound 1 cm x bone deep horizontal middleDhead.

5. Lacerated wound 10 cm x 1 cm bone deep oblique leftside head.”

4. The other injured persons were also examined the same dayEbefore 6.00 a.m.

A) PW1- Sundararajan had following injuries: - “1. An abrasion of 4 x 4 cm on the left shoulder

2. A lacerated wound of 10 x 10 cm on the left elbow.

3. A lacerated wound of 10 x 10 cm on the right elbow.

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4. A lacerated wound of 10 x 1 cm to bone deep in thecentre of the head.

5. A lacerated wound of 10 x 1 cm to bone deep in theleft side of the head.”

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B) PW2-Irusayi was found to be having following injuries:-

“1. Lacerated wound 2 cm x 1 cm x 1 cm at right thumbhand.

2. Lacerated wound 6 cm x 1 cm x bone deep on the leftHside of forehead.

3. Contusion 10 cm x 6 cm left wrist.

4. Contusion 10 cm x 10 cm back below right shoulder.”

C) PW3-Kumar was found to have suffered injuries as under:- “1. A lacerated wound 10 cm x 6 cm x bone deep obliqueleft upper arm.

2. A lacerated wound 8 cm x 4 cm x 4 cm left upper armbelow 4 cm wound horizontal.

3. A lacerated wound 6 cm x 2 cm x bone deep loweraspect left upper arm horizontal.

4. A lacerated wound 10 cm x 1 cm x bone deepextending from left ear lobe horizontally backwards.

5. Lacerated wound above right upper lip extending uptoleft side nose 8 cm x 1 cm x bone deep.

6. Lacerated wound 4 cm x 1 cm x 1 cm left eyebrow.

7. Lacerated wound 16 cm x 2 cm x bone deep over rightshoulder upper aspect oblique.”

D) PW4-Thangammal had following injury:- “A lacerated wound 10 cm x 1 cm x bone deep extending fromforehad vertically to middle head.”

E) Following injuries were found on the person of PW5-Sengodan.

“1. Contusion 10 cm x 10 cm left knee.

2. Abrasion 6 cm x ¼ cm right thigh middle front.”

5. At about 6.00 a.m. on 28.05.2009, complaint (Exhibit-P1) wasmade by PW1-Sundararajan, pursuant to which FIR No.238/1999 wasregistered with Singarapettai Police Station, as under:- “On 27-05-1999 night at about 9.30 p.m. we all took bed afterfood. My father and mother were sleeping in the tractor shedin front of the house. My brother’s son Sengodan was sleepingin the veranda of the house. My younger brother Kumar andhis wife Thangam with her child Manju were sleeping in thesouthern side room of the house. I was sleeping in the northernside room of the house. At about 1.00 clock in the midnight I

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SUPREME COURT REPORTS

Aheard noise of my father, woke up and came out of the room.At that time a person wearing red colour shirt came there witha stick in a hand and found sitting. A group of 6 persons wereattacking and beating my father with stick and koduval. Oneamong them cut the gold chain of about 5 sovereigns and removedI cried and raised noise. Those persons attacked me with stickBand koduval on my head and all over the body. On hearing mynoise my younger brother Kumar came out running from theroom and his hands were tied from behind by them and he wasbeaten with sticks. His wife Thangam came out to avert thebeating but she was also attacked by koduval. They removedCthe gold chain of 10 sovereigns worn by her, a pair of silver legchain worn by her also snatched by them. Then they enteredinto the house and broke open the bureau and removed the silverwaist chord and silver leg chain worn by child. At that time mybrother’s son Sengodan raised noise and he was also attacked.All the people ran away. They were 7 members of aged groupDfrom 20 to 25. On hearing our noise the villagers consisting ofRamasundaram and Srinivasan etc. came and took us to theGovernment Hospital, Uthangarai at about 4.00 am in the earlymorning. I came to know that my father Sengodan died. Otherswere admitted in the Hospital treated by the Doctor. The valueEof stolen articles will be Rs.45000/- (Forty five thousand). I canidentify the jewels stolen if recovered. I can also identify thepersons who came and stole the jewels and killed my father andattacked us, if they are found.”

6. The investigation was commenced by PW17-M.Chinnathambi,FDeputy Superintendent of Police. Accused No.1-Raja, Accused No.2-Govindraj, Accused No.3-Palani, Accused No.4-Vandikaran @Murugan, Accused No.5-Elumalai and Accused No.7- Arumugam werearrested on 21.06.1999 while Accused No.6-Chinnapaiyan surrenderedhimself before the Magistrate on 22.06.1999, who remanded him tojudicial custody on the same day. On 27.06.1999 requisition was madeGby the Investigating Officer for conducting Test Identification Parade(TIP for short) insofar as all the arrested accused were concerned.On 28.6.1999 an application was made by the Investigating Officerseeking permission to take Accused No.6 – Chinnapaiyan in policecustody. The permission was granted by the concerned Magistrate onH29.06.1999 to hold the TIP on 01.07.1999. The police custody of Accused No.6 was also given for 3 days from 01.07.1999. Thereafter,the TIP was held on 01.07.1999, in which PWs 1 to 5 identified theconcerned accused. The TIP was conducted in the presence and underthe supervision of PW11-Boopalan, who was then working as Sub-Judge, Rani Pettai.

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7. During the course of investigation, following recoveries weremade from the concerned accused.

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i) MO 18 wrist watch was recovered from Accused No.1

ii) MO 12 gold chain, MOs 21, 23 & 24 gold articles, MOs46 and 47 clothes having blood stains were recoveredCfrom Accused No.2

iii) MOs 48 and 49 namely clothes including a red shirt wererecovered from Accused No.3.

iv) MOs 13, 14, 15 and 19 being gold articles wererecovered from Accused No. 4.

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v) MOs 6 and 16 being gold articles were recovered fromAccused No. 5.

vi) MO 17 a wrist watch and MOs 43 and 56 being goldarticles were recovered from Accused No. 6.

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8. After completion of investigation, the aforementioned sevenaccused persons were charged of having committed various offencesincluding those punishable under Sections 109, 120B, 394, 395, 396, 449of the Indian Penal Code, 1860 (‘IPC’, for short). The prosecution, insupport of its case, principally relied upon the testimonies of PWs 1 to5 who identified Accused Nos. 1 to 6 to be the assailants. All thewitnesses, however, stated that Accused No. 7 was not present as amember of the assembly. In their cross examination, it was suggestedto all the witnesses that the accused were shown to the witnesses whilethey were in custody and that their photographs were also published innewspapers before the TIP was undertaken. The responses of thesewitnesses were as under:- F

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a) PW1-Sundararajan stated:-

“Police showed the jewels and the accused and asked us toidentify them as to whether they are the persons who are caught.We did not see in the police station. We saw in the papers. I

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do not know whether it was published in the paper 25 days afterthe occurrence. It is not correct to say that I identified them inthe Central Jail because I saw them already in the papers. It isnot correct to say that I identified them in the Jail because I sawthem in the police station and in the papers already.”

Bb) PW2-Erusayee stated:-

“At the time of occurrence totally 6 persons came. I saw themfor the first time only then. I have not seen them before. Policesaid that they were caught I saw in the police station then sawthem in the Central Jail, Salem.”

Cc) PW3-Kumar stated:-

“In the enquiry by the police I have stated that, 6 unidentifiablepersons came and attacked. I did not say that identifiablepersons attacked us. I have stated I can identify them if seen.I identified in the police station. … …I identified in theSingarapettai Police Station one month after the occurrence.”

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d) PW4-Thangammal stated:-

“It is not correct to say that I am deposing falsely that gold chainof 4 sovereigns was stolen. Singarapettai Police also came andwrote. Police asked in the Salem Jail thereafter. I identified inE”Salem. We identified in Morappur police station.

e) PW5-Sengodan stated:-

“I did not say the identity of the accused when police examinedme. It is not correct to say that, I am deposing falsely becauseof enmity between our family and Arumugam’s family or that IFidentified Arumugam in the jail. It is not correct to say thatbecause police showed me the photos of the accused which werepublished in the paper and I was already shown the accused inMorappur police station, I was called for identification and so Iidentified the accused. The daily newspaper “Dhina Thanthi”Gwas not coming to our village at that time.”

9. PW11-Boopalan, Sub-Judge in whose presence the TIP wasconducted, stated that the Accused Nos.1 to 6 were made to stand foridentification along with 19 other inmates from the Central Prison whowere used as dummies and that PWs.1 to 5 identified Accused Nos.1Hto 6. PW8-Thangaraj, Village Administrative Officer, in whose presence, the recoveries were said to have been effected, turnedhostile. The prosecution did not examine the other Panch, Kasim. PW17,the Investigating Officer, in his cross examination by the Accused 1 to5 and 7 stated :- “It is not correct to say that, the accused 1 to 5 and 7 werebrought to Singarapettai Police station where they were shownto the witnesses and identified. I do not know if the photos ofthe accused 1 to 5 and 7 were already published in the newspaperbefore 21-06-1999.”

10. The case of the prosecution was accepted by the AdditionalSessions Judge, Krishnagiri, who by the judgment dated 24.07.2012found Accused Nos.1 to 6 guilty of the offences punishable underSections 394, 396, 449 IPC. Accused Nos. 1 to 3 were also convictedunder Section 395 read with Section 397 IPC while Accused Nos. 2,4, 5 and 6 were convicted under Section 395 IPC and all were awardedthe sentence of life imprisonment along with other sentences, includingpayment of fine and default sentences. Accused No.7 was, however,acquitted of all the charges.

11. Thereafter, Criminal Appeal No.604 of 2012 was preferredby Accused Nos. 1 to 5 while Criminal Appeal No.92 of 2013 waspreferred by Accused No.6. By its common judgment and order dated27.04.2016 the High Court affirmed the view taken by the Trial Courtand dismissed both the appeals. Being aggrieved, Accused Nos.1, 2,3, 5 and 6 have preferred these Criminal Appeals. We have heard Mr.Rahul Shyam Bhandari, learned Advocate for the Accused No.1 andMr. Gopal Sankaranarayanan, learned Senior Advocate for the otheraccused and Mr. M. Yogesh Kanna, learned Advocate for the State.

12. The principal submissions advanced on behalf of theappellants are:

(a) The initial reporting shows that the identity of theassailants was not known to any of the witnesses. Theadmissions given by PWs. 1, 2, 3 and 4 in their cross-examination show that the accused were shown to thewitnesses in the Police Station. It is accepted that thephotographs of the accused were published in localnewspapers.

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A(b) According to the initial version of the prosecution,Accused No.7, a neighbour living in the vicinity wasresponsible for the crime and the appellants were saidto be his accomplices. However, every eye-witnessstated that Accused No.7 was not involved in the crime.The acquittal of said Accused No.7 was accepted byBthe prosecution. There was thus no connection of theappellants with the crime.

(c) The recoveries were not supported by PW8-Thangaraj.The other Panch was also not examined.

C13. Mr. Kanna, learned advocate for the State, however,submitted that as found by the Courts below, the eye-witness accountthrough PWs.1 to 5 was clear, cogent and completely reliable. Everyone of those prosecution witnesses had suffered injuries; their presencecould never be doubted; and considering the nature of injuries theopportunity available to them to observe the features of each of theDAccused was quite sufficient.

14. In the present case, the incident occurred after mid night.The prosecution witnesses 1 to 5 suffered injuries in the transactionbut the initial reporting showed that the identity of the assailants wasnot known to the witnesses. It is true that no identification marks orEattributes were stated but it was asserted that the assailants were inthe age group of 20 to 25 and one of the assailants had worn a redcolour shirt. Further, if the nature and number of injuries suffered byeach of the witnesses are considered, the assailants must have beenquite close to the witnesses to afford to the witnesses sufficient timeFand opportunity to observe their features.

15. It has been accepted by this Court that what is substantivepiece of evidence of identification of an accused, is the evidence givenduring the trial. However, by the time the witnesses normally step intothe box to depose, there would be substantial time gap between thedate of the incident and the actual examination of the witnesses. IfGthe accused or the suspects were known to the witnesses from beforeand their identity was never in doubt, the lapse of time may notqualitatively affect the evidence about identification of such accused,but the difficulty may arise if the accused were unknown. In such cases,the question may arise about the correctness of the identification byHthe witnesses. The lapse of time between the stage when the witnesses had seen the accused during occurrence and the actual examination ofthe witnesses may be such that the identification by the witnesses forthe first time in the box may be difficult for the court to place completereliance on. In order to lend assurance that the witnesses had, in fact,identified the accused or suspects at the first available opportunity, theTIP which is part of the investigation affords a platform to lendcorroboration to the ultimate statements made by the witnesses beforethe Court. However, what weightage must be given to such TIP is amatter to be considered in the facts and circumstances of each case.

16. Again, there is no hard and fast rule about the period withinwhich the TIP must be held from the arrest of the accused. In certaincases, this Court considered delay of 10 days to be fatal while in othercases even delay of 40 days or more was not considered to be fatal atall. For instance, in Pramod Mandal v. State of Bihar[1] the accusedwas arrested on 17.01.1989 and was put up for Test Identification on18.02.1989, that is to say there was a delay of a month for holding theTIP. Additionally, there was only one identifying witness against thesaid accused. After dealing with the decisions of this Court in WakilSingh v. State of Bihar[2], Subhash v. State of Uttar Pradesh[3]andSoni v. State of Uttar Pradesh[4]in which benefit was conferred uponthe accused because of delay in holding the TIP, this Court consideredthe line of cases taking a contrary view as under:

“18. Learned counsel for the State submitted that in the instantcase there was no inordinate delay in holding the test identificationparade so as to create a doubt on the genuineness of the testidentification parade. In any event he submitted that even if it isassumed that there was some delay in holding the testidentification parade, it was the duty of the accused to questionthe investigating officer and the Magistrate if any advantage wassought to be taken on account of the delay in holding the testidentification parade. Reliance was placed on the judgment ofthis Court in Bharat Singh v. State of U.P.[5] In the aforesaidjudgment this Court observed thus: (SCC p. 898, para 6)

1 (2004) 13 SCC 150

2 (1981) Suppl. SCC 28

3 (1987) 3 SCC 231

4 (1982) 3 SCC 368

5 (1973) 3 SCC 896

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A“6. In Sk. Hasib v. State of Bihar[6] it was observed by the Courtthat identification parades belong to the investigation stage andtherefore it is desirable to hold them at the earliest opportunity.An early opportunity to identify tends to minimise the chancesof the memory of the identifying witnesses fading away due tolong lapse of time. Relying on this decision, counsel for theBappellant contends that no support can be derived from whattranspired at the parade as it was held long after the arrest ofthe appellant. Now it is true that in the instant case there was adelay of about three months in holding the identification paradebut here again, no questions were asked of the investigating officerCas to why and how the delay occurred. It is true that the burdenof establishing the guilt is on the prosecution but that theorycannot be carried so far as to hold that the prosecution must leadevidence to rebut all possible defences. If the contention wasthat the identification parade was held in an irregular manner orthat there was an undue delay in holding it, the Magistrate whoDheld the parade and the police officer who conducted theinvestigation should have been cross-examined in that behalf.”

In the instant case we find that the defence has not imputed anymotive to the prosecution for the delay in holding the testidentification parade, nor has the defence alleged that there wasEany irregularity in the holding of the test identification parade.The evidence of the Magistrates conducting the test identificationparade as well as the investigating officer has gone unchallenged.Learned counsel for the State is, therefore, justified in contendingthat in the facts and circumstances of this case the holding ofFthe test identification parade, about one month after theoccurrence, is not fatal to the case of the prosecutionas there isnothing to suggest that there was any motive for the prosecutionto delay the holding of the test identification parade or that anyirregularity was committed in holding the test identificationparade.

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19. Learned counsel for the State has also relied upon the decisionof this Court in Anil Kumar v. State of U.P.[7] wherein the testidentification parade was held 47 days after the arrest of the 6 (1972) 4 SCC 773H7 (2003) 3 SCC 569

appellants. This Court after considering several decisions of thisCourt including the decisions in Brij Mohan v. State ofRajasthan[8], Daya Singh v. State of Haryana[9] and State ofMaharashtra v. Suresh[10] concluded that since the identifyingwitness was attacked by the assailants including the appellantand another, he had a clear look at the assailants.When hisyounger brother came to save him, he was killed by the assailantswhile the witness also received serious injuries. These werecircumstances which would have imprinted in the memory of thewitness the facial expressions of the assailants and this impressionwould not diminish or disappear within a period of 47 days. Similarwas the case of the father and the mother of the identifyingwitness who had seen the assailants attacking their sons and oneof their sons getting killed. In their memory also the facialexpressions of the assailants will get embossed. A mere lapseof 47 days would not erase the facial expressions from theirmemory.

20. It is neither possible nor prudent to lay down any invariablerule as to the period within which a test identification parade mustbe held, or the number of witnesses who must correctly identifythe accused, to sustain his conviction. These matters must beleft to the courts of fact to decide in the facts and circumstancesof each case.If a rule is laid down prescribing a period withinwhich the test identification parade must be held, it would onlybenefit the professional criminals in whose cases the arrests aredelayed as the police have no clear clue about their identity, theybeing persons unknown to the victims. They, therefore, have onlyto avoid their arrest for the prescribed period to avoid conviction.Similarly, there may be offences which by their very nature maybe witnessed by a single witness, such as rape. The offendermay be unknown to the victim and the case depends solely onthe identification by the victim, who is otherwise found to betruthful and reliable. What justification can be pleaded to contendthat such cases must necessarily result in acquittal because ofthere being only one identifying witness? Prudence thereforedemands that these matters must be left to the wisdom of thecourts of fact which must consider all aspects of the matter in 8 (1994) 1 SCC 4139 (2001) 3 SCC 46810 (2000) 1 SCC 471

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the light of the evidence on record before pronouncing upon theacceptability or rejection of such identification.

21. Lastly in Malkhansingh v. State of M.P.[11] a three-JudgeBench of this Court of which one of us (B.P. Singh, J.) was amember, after considering various decisions of this Courtobserved thus: (SCC pp. 751-52, para 7)

“7. It is trite to say that the substantive evidence is theevidence of identification in court. Apart from the clearprovisions of Section 9 of the Evidence Act, the position inlaw is well settled by a catena of decisions of this Court. Thefacts, which establish the identity of the accused persons, arerelevant under Section 9 of the Evidence Act. As a generalrule, the substantive evidence of a witness is the statementmade in court. The evidence of mere identification of theaccused person at the trial for the first time is from its verynature inherently of a weak character. The purpose of a priortest identification, therefore, is to test and strengthen thetrustworthiness of that evidence. It is accordingly considereda safe rule of prudence to generally look for corroboration ofthe sworn testimony of witnesses in court as to the identityof the accused who are strangers to them, in the form ofearlier identification proceedings. This rule of prudence,however, is subject to exceptions, when, for example, the courtis impressed by a particular witness on whose testimony itcan safely rely, without such or other corroboration. Theidentification parades belong to the stage of investigation, andthere is no provision in the Code of Criminal Procedure whichobliges the investigating agency to hold, or confers a rightupon the accused to claim a test identification parade. Theydo not constitute substantive evidence and these parades areessentially governed by Section 162 of the Code of CriminalProcedure. Failure to hold a test identification parade wouldnot make inadmissible the evidence of identification in court.The weight to be attached to such identification should be amatter for the courts of fact. In appropriate cases it mayaccept the evidence of identification even without insisting oncorroboration.”

(emphasis supplied by us)

This Court thus found the evidence as regards identification tobe trustworthy and dismissed the appeal preferred by the accused.

17. In Daya Singh v. State of Haryana[9]the incident hadoccurred on 09.04.1988 and the accused was arrested on 28.05.1988and was put up for test identification on 02.06.1988. However, theaccused refused to take part in the TIP. Thereafter, the eye-witnesses,PWs 37 and 38, were examined in the trial after a lapse of seven andhalf years and eight years respectively from the date of occurrence.The ground regarding lapse of time between the occurrence and theactual identification in Court was dealt with by this Court as under:

“11. At this stage we would first refer to the decisions uponwhich reliance is placed. In the case of Soni[4] this Court observedthat a delay of 42 days in holding the identification parade throwsa doubt on genuineness thereof, apart from the fact that it isdifficult that after a lapse of such a long time the witnesses wouldbe remembering facial expression of the appellant. In the caseof Mohd. Abdul Hafeez v. State of A.P.[12] the Court whiledealing with a robbery case observed that as no identificationparade was held, no reliance can be placed on the identificationof the accused after a lapse of four months in the Court. In thecase of Hari Nath[13] the Court observed that evidence of testidentification is admissible under Section 9 of the Evidence Act.But the value of test identification, apart from the other safeguardsappropriate to a fair test of identification depends upon thepromptitude in point of time with which the suspected personsare put up for test identification. If there is an unexplained andunreasonable delay in putting up the accused persons for a testidentification, the delay by itself detracts from the credibility ofthe test. The Court further referred to (para 9) Prof. Borchard:Convicting the Innocent on the basis of error in identificationof the accused. The learned author has observed:

“The emotional balance of the victim or eyewitness is so disturbedby his extraordinary experience that his powers of perceptionbecome distorted and his identification is frequently mostuntrustworthy. Into the identification enter other motives notnecessarily stimulated originally by the accused personally — the 12 (1983) 1 SCC 143

13 (1988) 1 SCC 14

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desire to requite a crime, to exact vengeance upon the personbelieved guilty, to find a scapegoat, to support, consciously orunconsciously, an identification already made by another. Thus,doubts are resolved against the accused.”

12. In AIR paras 10 and 11, the Court has observed as under:(SCC p. 21, paras 19-21)

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“19. The evidence of identification merely corroborates andstrengthens the oral testimony in court which alone is the primaryand substantive evidence as to identity. In Sk. Hasib v. State ofBihar[6] this Court observed: (SCC p. 777, para 5)

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‘… the purpose of test identification is to test that evidence, thesafe rule being that the sworn testimony of the witness in courtas to the identity of the accused who is a stranger to him, as ageneral rule, requires corroboration in the form of an earlieridentification proceeding.’

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20. In Rameshwar Singh v. State of J&K[14] this Court observed:[SCC p. 718, SCC (Cri) p. 641, para 6]

‘… it may be remembered that the substantive evidence of awitness is his evidence in court, but when the accused person isnot previously known to the witness concerned then identificationEof the accused by the witness soon after the former’s arrest isof vital importance because it furnishes to the investigatingagency an assurance that the investigation is proceeding on rightlines in addition to furnishing corroboration of the evidence to begiven by the witness later in court at the trial.’

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21. It is, no doubt, true that absence of corroboration by testidentification may not assume any materiality if either the witnesshad known the accused earlier or where the reasons for gainingan enduring impress of the identity on the mind and memory ofthe witness are, otherwise, brought out. It is also rightly said that:

‘Courts ought not to increase the difficulties by magnifying thetheoretical possibilities. It is their province to deal with mattersactual and material to promote order and not surrender it byexcessive theorising or by magnifying what in practice is reallyunimportant.’ ”

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13. The question, therefore, is — whether the evidence of injuredeyewitnesses PW 37 and PW 38 is sufficient to connect theappellant with the crime beyond reasonable doubt. For thispurpose, it is to be borne in mind that the purpose of testidentification is to have corroboration to the evidence of theeyewitnesses in the form of earlier identification and thatsubstantive evidence of a witness is the evidence in the court.If that evidence is found to be reliable then absence ofcorroboration by test identification would not be in any waymaterial. Further, where reasons for gaining an enduring impressof the identity on the mind and memory of the witnesses arebrought on record, it is no use to magnify the theoreticalpossibilities and arrive at conclusion — what in present-day socialenvironment infested by terrorism is really unimportant. In suchcases, not holding of identification parade is not fatal to theprosecution. The purpose of identification parade is succinctlystated by this Court in State of Maharashtra v. Suresh[10] asunder: (SCC p. 478, para 22)

“We remind ourselves that identification parades are notprimarily meant for the court. They are meant for investigationpurposes. The object of conducting a test identification paradeis twofold. First is to enable the witnesses to satisfythemselves that the prisoner whom they suspect is really theone who was seen by them in connection with the commissionof the crime. Second is to satisfy the investigating authoritiesthat the suspect is the real person whom the witnesses hadseen in connection with the said occurrence.”

(Emphasis supplied by us)

18. It is, thus, clear that if the material on record sufficientlyindicates that reasons for “gaining an enduring impression of the identityon the mind and memory of the witnesses” are available on record,the matter stands in a completely different perspective. This Court alsostated that in such cases even non-holding of identification parade wouldnot be fatal to the case of the prosecution. Applying the tests so laiddown to the present case, in view of the fact that each of theeyewitnesses had suffered number of injuries in the transaction, it cansafely be inferred that every one of them had sufficient opportunity toobserve the accused to have an enduring impression of the identity of AB

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Athe assailants. It is not as if the witnesses had seen the assailants, ina mob and from some distance. Going by the injuries, the contact withthe accused must have been from a close distance.

19. Furthermore, in the present case all the accused werearrested on 21.06.1999 except Accused No.6 who surrendered beforeBthe Magistrate on 22.06.1999 and was remanded to judicial custody.After securing permissions from the Magistrate, the police custody ofAccused No.6 was obtained on 01.07.1999 and the TIP was held on01.07.1999 itself. There was, thus, no delay on part of the investigatingmachinery in getting TIP held on 01.07.1999.

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20. However, what is urged, is that at least three of theeyewitnesses had accepted that the accused were shown to them whilethe accused were in police custody. The responses of PWs 1, 2, and 3as quoted hereinbefore do indicate that they had seen and identifiedthe accused while they were in custody. The suggestion that theDwitness was able to identify the accused only because they were shownwhile the accused were in police custody or that their photographs hadappeared in newspaper, was, however, denied by PW1. The responseof PW4 was with regard to identification of gold chain of four sovereignand that is why the identification was in Morappur police station whereasfrom the responses of PWs 1, 2 and 3 it is clear that the accused wereEin Singarapettai police station. The response of PW4 does not indicatethat the witness had seen the accused while they were in custody. PW5completely denied the suggestion that he could identify only becausethe accused were shown while they were in custody and that becausethe photographs of the accused were shown to the witnesses. He alsoFdenied that newspaper “Dhina Thanthi”, which apparently had publishedthe photographs of the accused, was available in their village at thattime. No defence evidence has been placed on record either toestablish the date of publication of such photographs in any newspaperand whether the newspaper “Dhina Thanthi” was normally availableGin the concerned village.

21. Thus, out of five prosecution witnesses who were all injuredin the transaction, the testimonies of at least two of them, namely, PWs4 and 5 stand on a different footing. Even with respect to PWs 1, 2and 3, though there is some room to say that the accused were shownHto the witnesses while they were in custody, that part by itself may not be sufficient in the light of the discussion in Manu Sharma v. State(NCT of Delhi)[15] which was to the following effect:

“252. It is also contended by the defence that since thephotographs were shown to the witnesses this circumstancerenders the whole evidence of identification in court asinadmissible. For this, it was pointed out that photo identificationor TIP before the Magistrate, are all aides in investigation anddo not form substantive evidence. Substantive evidence is theevidence of the witness in the court on oath, which can neverbe rendered inadmissible on this count. It is further pointed outthat photo identification is not hit by Section 162 CrPC asadverted to by the defence as the photographs have not beensigned by the witnesses.

253. In support of his argument the Senior Counsel for ManuSharma relies on the judgment of Kartar Singh v. State ofPunjab[16] SCC at p. 711 wherein while dealing with Section 22of TADA the Court observed that photo TIP is bad in law. It isuseful to mention that the said judgment has been distinguishedin Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau[17],where a photo identification has been held to be valid. Therelevant extract of the said judgment is as follows: (SCC p. 143,paras 10-12)

“10. The next circumstance highlighted by the learned counselfor the respondent is that a photo of the appellant was shown toMr Albert Mkhatshwa later and he identified that figure in thephoto as the person whom he saw driving the car at the time ofinterception of the truck.

11. It was contended that identification by photo is inadmissiblein evidence and, therefore, the same cannot be used. No legalprovision has been brought to our notice which inhibits theadmissibility of such evidence. However, learned counsel invitedour attention to the observations of the Constitution Bench inKartar Singh v. State of Punjab[16] which struck down Section22 of the Terrorist and Disruptive Activities (Prevention) Act, 15 (2010) 6 SCC 1

16 (1994) 3 SCC 569

17 (2000) 1 SCC 138

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1987. By that provision the evidence of a witness regardingidentification of a proclaimed offender in a terrorist case on thebasis of the photograph was given the same value as the evidenceof a test identification parade. This Court observed in thatcontext: (SCC p. 711, para 361)

‘361. If the evidence regarding the identification on the basisof a photograph is to be held to have the same value as theevidence of a test identification parade, we feel that grossinjustice to the detriment of the persons suspected may result.Therefore, we are inclined to strike down this provision andaccordingly we strike down Section 22 of the Act.’

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12. In the present case prosecution does not say that they wouldrest with the identification made by Mr Mkhatshwa when thephotograph was shown to him. Prosecution has to examine himas a witness in the court and he has to identify the accused inthe court. Then alone it would become substantive evidence. Butthat does not mean that at this stage the court is disabled fromconsidering the prospect of such a witness correctly identifyingthe appellant during trial. In so considering the court can takeinto account the fact that during investigation the photograph ofthe appellant was shown to the witness and he identified thatperson as the one whom he saw at the relevant time. It must beborne in mind that the appellant is not a proclaimed offender andwe are not considering the eventuality in which he would be soproclaimed. So the observations made in Kartar Singh[16] in adifferent context is of no avail to the appellant.”

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F254. Even a TIP before a Magistrate is otherwise hit by Section162 of the Code. Therefore, to say that a photo identification ishit by Section 162 is wrong. It is not a substantive piece ofevidence. It is only by virtue of Section 9 of the Evidence Actthat the same i.e. the act of identification becomes admissible incourt. The logic behind TIP, which will include photo identificationGlies in the fact that it is only an aid to investigation, where anaccused is not known to the witnesses, the IO conducts a TIPto ensure that he has got the right person as an accused. Thepractice is not borne out of procedure, but out of prudence. Atbest it can be brought under Section 8 of the Evidence Act, asevidence of conduct of a witness in photo identifying the accused H

in the presence of an IO or the Magistrate, during the course ofan investigation.

255. Mr Jethmalani has further argued on the proposition thatmere dock identification is no identification in the eye of the lawunless corroborated by previous TIP before the Magistrate. Ithas been further argued that in any case, even identification incourt is not enough and that there should be something more tohold the accused liable. In support of his arguments, he placedheavy reliance on the decision of this Court in Hari Nath v. Stateof U.P.[ 13] and Budhsen v. State of U.P.[18] A close scrutiny ofthese judgments will reveal that they in fact support the case ofthe prosecution. These judgments make it abundantly clear thateven where there is no previous TIP, the court may appreciatethe dock identification as being above board and more thanconclusive.

256. The law as it stands today is set out in the followingdecisions of this Court which are reproduced as hereinunder:

Munshi Singh Gautam v. State of M.P.[19]: (SCC pp. 642-45,paras 16-17 & 19)

“16. As was observed by this Court in Matru v. State ofU.P.[20] identification tests do not constitute substantiveevidence. They are primarily meant for the purpose of helpingthe investigating agency with an assurance that their progresswith the investigation into the offence is proceeding on theright lines. The identification can only be used as corroborativeof the statement in court. (See Santokh Singh v. IzharHussain[21].) The necessity for holding an identification paradecan arise only when the accused are not previously knownto the witnesses. The whole idea of a test identificationparade is that witnesses who claim to have seen the culpritsat the time of occurrence are to identify them from the midstof other persons without any aid or any other source. Thetest is done to check upon their veracity. In other words, themain object of holding an identification parade, during the 18 (1970) 2 SCC 128

19 (2005) 9 SCC 631

20 (1971) 2 SCC 75

21 (1973) 2 SCC 406

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investigation stage, is to test the memory of the witnessesbased upon first impression and also to enable the prosecutionto decide whether all or any of them could be cited aseyewitnesses of the crime. The identification proceedings arein the nature of tests and significantly, therefore, there is noprovision for it in the Code and the Evidence Act. It is desirablethat a test identification parade should be conducted as soonas after the arrest of the accused. This becomes necessaryto eliminate the possibility of the accused being shown to thewitnesses prior to the test identification parade. This is a verycommon plea of the accused and, therefore, the prosecutionhas to be cautious to ensure that there is no scope for makingsuch an allegation. If, however, circumstances are beyondcontrol and there is some delay, it cannot be said to be fatalto the prosecution.

17. It is trite to say that the substantive evidence is theevidence of identification in court. Apart from the clearprovisions of Section 9 of the Evidence Act, the position inlaw is well settled by a catena of decisions of this Court. Thefacts, which establish the identity of the accused persons, arerelevant under Section 9 of the Evidence Act. As a generalrule, the substantive evidence of a witness is the statementmade in court. The evidence of mere identification of theaccused person at the trial for the first time is from its verynature inherently of a weak character. The purpose of a priortest identification, therefore, is to test and strengthen thetrustworthiness of that evidence. It is, accordingly, considereda safe rule of prudence to generally look for corroboration ofthe sworn testimony of witnesses in court as to the identityof the accused who are strangers to them, in the form ofearlier identification proceedings. This rule of prudence,however, is subject to exceptions, when, for example, the courtis impressed by a particular witness on whose testimony itcan safely rely, without such or other corroboration. Theidentification parades belong to the stage of investigation, andthere is no provision in the Code which obliges the investigatingagency to hold or confers a right upon the accused to claima test identification parade. They do not constitute substantiveevidence and these parades are essentially governed by

Section 162 of the Code. Failure to hold a test identificationparade would not make inadmissible the evidence ofidentification in court. The weight to be attached to suchidentification should be a matter for the courts of fact. Inappropriate cases it may accept the evidence of identificationeven without insisting on corroboration. (See Kanta Prashadv. Delhi Admn[22]., Vaikuntam Chandrappa v. State of A.P.[23],Budhsen v. State of U.P.[18] and Rameshwar Singh v. Stateof J&K[14].)

* * *

19. In Harbajan Singh v. State of J&K[24], though a testidentification parade was not held, this Court upheld the convictionon the basis of the identification in court corroborated by othercircumstantial evidence. In that case it was found that theappellant and one Gurmukh Singh were absent at the time of rollcall and when they were arrested on the night of 16-12-1971 theirrifles smelt of fresh gunpowder and that the empty cartridge casewhich was found at the scene of offence bore distinctivemarkings showing that the bullet which killed the deceased wasfired from the rifle of the appellant. Noticing these circumstancesthis Court held: (SCC p. 481, para 4)

‘4. In view of this corroborative evidence we find nosubstance in the argument urged on behalf of the appellantthat the investigating officer ought to have held anidentification parade and that the failure of Munshi Ram tomention the names of the two accused to the neighbours whocame to the scene immediately after the occurrence showsthat his story cannot be true. As observed by this Court inJadunath Singh v. State of U.P.[25] absence of testidentification is not necessarily fatal. The fact that MunshiRam did not disclose the names of the two accused to thevillagers only shows that the accused were not previouslyknown to him and the story that the accused referred to each 22 AIR (1958) SC 350

23 AIR (1960) SC 1340

24 (1975) 4 SCC 480

25 (1970) 3 SCC 518

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other by their respective names during the course of theincident contains an element of exaggeration. The case doesnot rest on the evidence of Munshi Ram alone and thecorroborative circumstances to which we have referred toabove lend enough assurance to the implication of theappellant.’ ”

Malkhansingh v. State of M.P[11]: (SCC pp. 751-52, para 7)

“7. It is trite to say that the substantive evidence is the evidenceof identification in court. Apart from the clear provisions ofSection 9 of the Evidence Act, the position in law is well settledby a catena of decisions of this Court. The facts, which establishthe identity of the accused persons, are relevant under Section9 of the Evidence Act. As a general rule, the substantiveevidence of a witness is the statement made in court. Theevidence of mere identification of the accused person at the trialfor the first time is from its very nature inherently of a weakcharacter. The purpose of a prior test identification, therefore, isto test and strengthen the trustworthiness of that evidence. It isaccordingly considered a safe rule of prudence to generally lookfor corroboration of the sworn testimony of witnesses in courtas to the identity of the accused who are strangers to them, inthe form of earlier identification proceedings. This rule ofprudence, however, is subject to exceptions, when, for example,the court is impressed by a particular witness on whose testimonyit can safely rely, without such or other corroboration. Theidentification parades belong to the stage of investigation, andthere is no provision in the Code of Criminal Procedure whichobliges the investigating agency to hold, or confers a right uponthe accused to claim a test identification parade. They do notconstitute substantive evidence and these parades are essentiallygoverned by Section 162 of the Code of Criminal Procedure.Failure to hold a test identification parade would not makeinadmissible the evidence of identification in court. The weightto be attached to such identification should be a matter for thecourts of fact. In appropriate cases it may accept the evidenceof identification even without insisting on corroboration.”

… … …

259. In Mullagiri Vajram v. State of A.P.[26] it was held thatAthough the accused was seen by the witness in custody, anyinfirmity in TIP will not affect the outcome of the case, sincethe depositions of the witnesses in court were reliable and couldsustain a conviction. The photo identification and TIP are onlyaides in the investigation and does not form substantive evidence.BThe substantive evidence is the evidence in the court on oath.”

22. The facts on record thus indicate with clarity that:

(a) There was no delay in holding the test identificationparade and the delay, if any, was attributable to the factthat one of the accused was in judicial custody whoseCpresence had to be secured only after appropriatepermissions from the court; (b) It is not the case of the accused that Accused No.6 wasever shown to any of the witnesses. The testidentification parade of Accused No.6 has no infirmityon any count and all the witnesses consistently identifiedsaid Accused No.6; D

(c) Out of five injured witnesses, two had completely deniedthat either the accused or their photographs were shownto the witnesses, while other three did accept thesuggestion in that behalf; and E

(d) All the witnesses were injured in the transaction withnumber of injuries. It can, therefore, safely be statedthat every one of them had adequate and properopportunity to observe the features of each of theaccused.

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23. As has been repeatedly laid down by this Court, what isimportant is the identification in Court and if such identification isotherwise found by the Court to be truthful and reliable, such substantiveevidence can be relied upon by the Court. Considering the totality ofcircumstances on record, the presence and participation of the AccusedNos.1 to 6, in our view, stood proved through the eyewitness account.We do not find any infirmity in the evidence of identification by PWs 1to 5.

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26 1993 Supp. (2) SCC 198

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A24. Since we have accepted and relied upon the eye-witnessaccount, the subsidiary issues like recoveries and whether they wereproved in a manner known to law, need no further elaboration.

25. Consequently, we find that the Appellants were rightly foundguilty of the offences with which they were charged. Affirming theirBconviction and sentence, we dismiss these appeals.

Kalpana K. Tripathy

Appeals dismissed.

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