Vs. The State of Delhi 
INSC 639 (11 April 2008)
DR. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE CRIMINAL APPEAL NO.932 OF 2007 With (Criminal Appeal no. 1475 of
2007) Dr. ARIJIT PASAYAT, J.
1. These two appeals are directed against the common judgment of the Delhi
High Court in Criminal Appeal nos.430 of 2002 and 328 of 2005. It needs to be
noted that by the said common judgment three appeals i.e. Criminal Appeal nos
430/2002, 545/2003 and 328/ 2005 were disposed of.
2. Appellant-Mahabir (appellant in Criminal Appeal no.932 of 2007) was
appellant in Criminal Appeal no.430 of 2002 and appellant Jalvir (appellant in
Criminal Appeal no.1475 of 2007 was appellant in Criminal Appeal no.328 of
2005). Each of them was convicted for offence punishable under Section 394 read
with Section 34, and section 302 read with section 34 of the Indian Penal Code,
1860 (in short 'IPC'), and was sentenced to imprisonment for 10 years with fine
and imprisonment for life with fine respectively, with default stipulation in
each case for the aforesaid offences.
3. Background facts in a nutshell are as follows:
Smt. Seema Sharma gave statement to the police alleging that on 24.2.1997 at
about 4.15 p.m. she was present in her house bearing No.28-B, pocket-B Sidharth
Extension, New Delhi when she heard her door bell ringing and her maid servant
Kamla @ Kharpai went to open the door. Accused Jalveer who is related to the
complainant along with his three associates entered the house. Complainant was
standing in the balcony where all the four reached. All the three associates of
Jalveer took out knives, Jalveer also took out knife from his pocket. Two of
the associates of accused Jalveer caught hold of the complainant and dragged
her to her bed room where she was beaten and accused made enquiries about gold
kept in her house and when she did not give any information, they kicked her on
her stomach. They removed a gold chain along with locket and jumkas with chain
from her ear. When Kamla, the maid servant of the complainant, tried to
intervene, two of the associates of the accused Jalveer tied a blouse around
the neck of the complainant as a result of which she became unconscious for
sometime. After sometime she heard the screams of Kamla @ Kharpai, her maid
servant, and when she saw, a nylon string was tied around her neck and she was
lying on the floor, Jalveer along with his associate thereafter fled away from
the spot. Complainant was admitted in the hospital. Police party reached at the
spot, dead body of Kamla was removed to AIIMS where postmortem was conducted on
her dead body. Subsequently, accused Mahabir and Mahesh were arrested by the
police of police station Hazarat Nizamuddin. A VCR, ear rings of this case
belonging to complainant were recovered from their possession. They made
disclosure statements regarding this case therefore, they were arrested in the
present case. Police applied for holding TIP of accused Mahesh and Mahabir but
they refused to join the proposed TIP. The TIP of jewelery articles and VCR
recovered from the accused Mahabir and Mahesh was done by the Metropolitan
Magistrate. The complainant correctly identified the articles as well as the
jewelery recovered from the possession of these accused persons. Subsequently,
accused Jalveer was arrested in this case and Roopa was also formally arrested
in this case after production warrants were issued. Photographs of the place of
incident were taken, site plan was got prepared, finger prints were lifted from
the place of incident. Statement of witnesses were recorded by the police and
after investigation of the case they came to the conclusion that the accused
persons committed the murder of maid servant Kamla and they also committed
robbery in the house of the complainant. Accordingly, challan was filed.
After complying with the provision of Section 207 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the 'Code') learned Metropolitan
Magistrate committed the case to the court of Sessions which in turn assigned
the same to learned Additional Sessions Judge for trial in accordance with law.
4. In order to establish its accusations the prosecution examined 19
witnesses out of which Smt. Seema Sharma (PW- 4) was the eye-witness to the
incident. Placing reliance on her evidence and the test identification parade
of the accused persons and the articles, the Trial Court convicted both and
sentenced as aforesaid.
5. Before the High Court the primary stand was that PW4 had accepted to have
seen the accused Mahabir at the time of his arrest and, therefore, the test
identification parade was of no consequence and rightly accused-appellant
Mahabir had refused to take part in it. So far as accused Jalvir is concerned,
it was stated that the complainant did not know his father's name and address
and, therefore, could not have made accusations so far as he is concerned. It
was also pointed out that in the first information report name of Jalvir was
mentioned though PW4 herself accepted that she was unconscious for four days.
7. The High Court did not find any substance in such plea.
It noted that though accused was shown to her, that actually did not dilute
the evidentiary value and also that was not relevant as the accused refused to
take part in the test identification parade. It was also noted that accused
Jalvir was known to the witness and, therefore, there was no difficulty in
mentioning his name in the first information report.
Accordingly, the conviction and sentence as recorded by the Trial Court came
to be affirmed.
8. In support of the appeals, learned counsel for the appellant submitted
that the identification after the accused was shown to the witness is really of
no consequence. Further, so far as accused Jalvir is concerned, he is barely
known to PW4. He was not a frequent visitor to the house of the accused and,
therefore, it was not possible for her to identify the said accused.
9. Learned counsel for the respondent-State supported the impugned order of
the High Court which affirmed the conviction and sentence as recorded by the
10. We shall deal with the appeal filed by the accused Mahabir. From the
evidence of PW4 it is clear that after the incident accused Mahabir and Mahesh
were shown to PW4 at the time of their arrest. In fact, police brought many
persons for identification of culprits and identified Mahabir and Mahesh to
PW4. She admitted that these two persons were brought to the hospital.
Subsequently, she had identified them in Court. So far as recovery of the VCR
is concerned, which was treated as a ground for holding Mahabir and Jalvir
guilty, she accepted that it was not told to her about recovery of VCR.
She was told by the police that VCR had been recovered after the police
persons had brought Mahabir and Mahesh.
Interestingly, she also accepted that Mahabir and Mahesh were brought to the
hospital where she was asked to identify them.
11. As was observed by this Court in Matru v. State of U.P.
(1971 (2) SCC 75) identification tests do not constitute substantive
evidence. They are primarily meant for the purpose of helping the investigating
agency with an assurance that their progress with the investigation into the
offence is proceeding on the right lines. The identification can only be used
as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain
(1973 (2) SCC 406). The necessity for holding an identification parade can
arise only when the accused are not previously known to the witnesses. The
whole idea of a test identification parade is that witnesses who claim to have
seen the culprits at the time of occurrence are to identify them from the midst
of other persons without any aid or any other source. The test is done to check
upon their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the memory of
the witnesses based upon first impression and also to enable the prosecution to
decide whether all or any of them could be cited as eyewitnesses of the crime.
The identification proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the Code and the Indian Evidence
Act, 1872 (in short the 'Evidence Act'). It is desirable that a test
identification parade should be conducted as soon as possible after the arrest
of the accused.
This becomes necessary to eliminate the possibility of the accused being
shown to the witnesses prior to the test identification parade. This is a very
common plea of the accused and, therefore, the prosecution has to be cautious
to ensure that there is no scope for making such allegation. If, however,
circumstances are beyond control and there is some delay, it cannot be said to
be fatal to the prosecution.
12. It is trite to say that the substantive evidence is the evidence of
identification in Court. Apart from the clear provisions of Section 9 of the
Evidence Act, the position in law is well settled by a catena of decisions of
this Court. The facts, which establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in Court. The evidence of mere
identification of the accused person at the trial for the first time is from
its very nature inherently of a weak character. The purpose of prior test
identification, therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of witnesses in Court
as to the identity of the accused who are strangers to them, in the form of
earlier identification proceedings. This rule of prudence, however, is subject
to exceptions, when, for example, the Court is impressed by a particular
witness on whose testimony it can safely rely, without such or other corroboration.
The identification parades belong to the stage of investigation, and there is
no provision in the Code which obliges the investigating agency to hold or
confers a right upon the accused to claim, a test identification parade. They
do not constitute substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a test identification
parade would not make inadmissible the evidence of identification in Court. The
weight to be attached to such identification should be a matter for the Courts
of fact. In appropriate cases it may accept the evidence of identification even
without insisting on corroboration. (See Kanta Prashad v. Delhi Administration
(AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra Pradesh
(AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR 1970 SC 1321) and
Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102).
13. In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3 SCC
518), the submission that absence of test identification parade in all cases is
fatal, was repelled by this Court after exhaustive considerations of the
authorities on the subject. That was a case where the witnesses had seen the
accused over a period of time. The High Court had found that the witnesses were
independent witnesses having no affinity with deceased and entertained no
animosity towards the appellant. They had claimed to have known the appellants
for the last 6-7 years as they had been frequently visiting the town of Bewar.
This Court noticed the observations in an earlier unreported decision of this
Court in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92
of 1956 decided on January 15, 1957), wherein it was observed:- "It is
also the defence case that Shiv Lal did not know the appellant. But on a
reading of the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the
appellant by sight.
Though he made a mistake about his name by referring to him as Kailash
Chandra, it was within the knowledge of Shiv Lal that the appellant was a
brother of Manak Chand and he identified him as such. These circumstances are
quite enough to show that the absence of the identification parade would not
vitiate the evidence. A person who is well- known by sight as the brother of
Manak Chand, even before the commission of the occurrence, need not be put
before an identification parade in order to be marked out. We do not think that
there is any justification for the contention that the absence of the
identification parade or a mistake made as to his name, would be necessarily
fatal to the prosecution case in the circumstances."
The Court concluded:
"It seems to us that it has been clearly laid down by this Court, in
Parkash Chand Sogani v. The State of Rajasthan (supra) (AIR Cri LJ), that the
absence of test identification in all cases is not fatal and if the accused
person is well-known by sight it would be waste of time to put him up for
identification. Of course if the prosecution fails to hold identification on the
plea that the witnesses already knew the accused well and it transpires in the
course of the trial that the witnesses did not know the accused previously, the
prosecution would run the risk of losing its case."
14. In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480),
though a test identification parade was not held, this Court upheld the
conviction on the basis of the identification in Court corroborated by other
circumstantial evidence. In that case it was found that the appellant and one
Gurmukh Singh were absent at the time of roll call and when they were arrested
on the night of 16th December, 1971 their rifles smelt of fresh gunpowder and
that the empty cartridge case which was found at the scene of offence bore
distinctive markings showing that the bullet which killed the deceased was
fired from the rifle of the appellant. Noticing these circumstances this Court
held:- "In view of this corroborative evidence we find no substance in the
argument urged on behalf of the appellant that the Investigating Officer ought
to have held an identification parade and that the failure of Munshi Ram to
mention the names of the two accused to the neighbours who came to the scene
immediately after the occurrence shows that his story cannot be true. As observed
by this Court in Jadunath Singh v. State of U.P. (AIR 1971 SC 363) absence of
test identification is not necessarily fatal. The fact that Munshi Ram did not
disclose the names of the two accused to the villages only shows that the
accused were not previously known to him and the story that the accused
referred to each other by their respective names during the course of the
incident contains an element of exaggeration. The case does not rest on the
evidence of Munshi Ram alone and the corroborative circumstances to which we
have referred to above lend enough assurance to the implication of the
15. It is no doubt true that much evidentiary value cannot be attached to
the identification of the accused in Court where identifying witness is a total
stranger who had just a fleeting glimpse of the person identified or who had no
particular reason to remember the person concerned, if the identification is
made for the first time in Court.
16. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld
the conviction of the appellant even when the witness while deposing in Court
did not identify the accused out of fear, though he had identified him in the
test identification parade. This Court noticed the observations of the trial Judge
who had recorded his remarks about the demeanor that the witness perhaps was
afraid of the accused as he was trembling at the stare of Ram Nath - accused.
This Court also relied upon the evidence of the Magistrate, PW-7 who had
conducted the test identification parade in which the witness had identified
the appellant. This Court found, that in the circumstances if the Courts below
had convicted the appellant, there was no reason to interfere.
17. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80), this
Court held that it is well settled that substantive evidence of the witness is
his evidence in the Court but when the accused person is not previously known
to the witness concerned then identification of the accused by the witness soon
after his arrest is of great importance because it furnishes an assurance that
the investigation is proceeding on right lines in addition to furnishing
corroboration of the evidence to be given by the witness later in Court at the
From this point of view it is a matter of great importance, both for the
investigating agency and for the accused and a fortiori for the proper
administration of justice that such identification is held without avoidable
and unreasonable delay after the arrest of the accused. It is in adopting this
course alone that justice and fair play can be assured both to the accused as
well as to the prosecution. Thereafter this Court observed:- "But the
position may be different when the accused or a culprit who stands trial had
been seen not once but for quite a number of times at different point of time
and places which fact may do away with the necessity of a TI parade."
18. In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31),
this Court observed that the evidence of identification becomes stronger if the
witness has an opportunity of seeing the accused not for a few minutes but for
some length of time, in broad daylight, when he would be able to note the
features of the accused more carefully than on seeing the accused in a dark
night for a few minutes.
19. In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000 (1)
SCC 358) after considering the earlier decisions this Court observed:- "It
becomes at once clear that the aforesaid observations were made in the light of
the peculiar facts and circumstances wherein the police is said to have given
the names of the accused to the witnesses. Under these circumstances,
identification of such a named accused only in the Court when the accused was
not known earlier to the witness had to be treated as valueless. The said
decision, in turn, relied upon an earlier decision of this Court in the case of
V.C. Shukla v. State (AIR 1980 SC 1382) wherein also Fazal Ali, J.
speaking for a three-Judge Bench made similar observations in this regard.
In that case the evidence of the witness in the Court and his identifying the
accused only in the Court without previous identification parade was found to
be a valueless exercise. The observations made therein were confined to the
nature of the evidence deposed to by the said eye-witnesses. It, therefore,
cannot be held, as tried to be submitted by learned Counsel for the appellants,
that in the absence of a test identification parade, the evidence of an
eye-witness identifying the accused would become inadmissible or totally
useless; whether the evidence deserves any credence or not would always depend
on the facts and circumstances of each case. It is, of course, true as
submitted by learned Counsel for the appellants that the later decisions of
this Court in the case of Rajesh Govind Jagesha v. State of Maharashtra (AIR
2000 SC 160) and State of H.P. v. Lekh Raj (AIR 1999 SC 3916), had not
considered the aforesaid three-Judge Bench decisions of this Court. However, in
our view, the ratio of the aforesaid later decisions of this Court cannot be
said to be running counter to what is decided by the earlier three-Judge Bench
judgments on the facts and circumstances examined by the Court while rendering
these decisions. But even assuming as submitted by learned Counsel for the
appellants that the evidence of, these two injured witnesses i.e.
Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in
the Court may be treated to be of no assistance to the prosecution, the fact
remains that these eye-witnesses were seriously injured and they could have
easily seen the faces of the persons assaulting them and their appearance and
identity would well within imprinted in their minds especially when they were
assaulted in broad daylight. They could not be said to be interested in roping
in innocent persons by shielding the real accused who had assaulted them."
20. These aspects were highlighted in Malkhansingh and Others v. State of
M.P. (2003 (5) SCC 746).
21. In view of the accepted position that the accused persons were brought
to the hospital to be shown to PW4, grievance that the test identification
parade was really of no consequence because they had already been shown to the
witnesses has substance. That being only piece of material which was used for
conviction of Mahabir, same cannot be sustained. The same is set aside. He be
released forthwith unless required in any case. So far accused Jalvir is
concerned, PW4 had categorically stated that she knew him six years prior to
the incident. He had come to their house many times. Therefore, there was no
difficulty in identifying accused Jalvir and naming him in the first
It is of significance that in the first information report name of Jalvir
was specifically noted. The plea that Jalvir's name could not have been given
at the first instance, because the witness was unconscious is without any
substance. As a matter of fact, the witness has categorically stated that after
the information was lodged, she became unconscious.
Above being the position, the conclusions of the Trial Court in holding
accused Jalvir guilty does not suffer from any infirmity.
22. The High Court was right in dismissing the appeal of accused-appellant
Jalvir. We find no infirmity in the conclusions of the High Court to warrant
Therefore, Criminal Appeal no.1475 of
2007 stands dismissed and as noted above, Criminal Appeal no.932 of 2007 is