Md. Kalam @ Abdul Kalam
Vs. State of Rajasthan [2008] INSC 473 (14 March 2008)
Dr. Arijit Pasayat & P.
Sathasivam
Criminal Appeal No. 489 of
2008 (Arising out of Slp (Crl.) No. 4178 of 2006) Dr. Arijit Pasayat, J
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge
of the Rajasthan High Court, Jaipur Bench. Challenge in the appeal before the
High Court was to the judgment and order dated 10.4.2002 passed by learned
Additional Sessions Judge (Fast Track) Class II, Jaipur. By the said judgment,
the appellant was convicted for offence punishable under Section 395 of the
Indian Penal Code, 1860 (in short 'IPC'). He was sentenced to undergo rigorous
imprisonment for 10 years and to pay a fine of Rs.1,000/- with default stipulation.
3. Background facts in a nutshell are as follows:
In the intervening night of 8-9th May, 1994 when Vishwas (PW-3) and his wife
Renu Jain (PW-1) were sleeping in their house situated in Mauji Colony, Malviya
Nagar, Jaipur, five persons entered the house and tied their servant Chaturbhuj
who was sleeping in the basement of the house. Thereafter, the accused also
tied the mouth, hands and legs of Vishwas Jain (PW-3) and his wife Renu (PW-1)
and then bolted them inside the bathroom and having threatened them at the
point of pistal and knife, the accused looted the gold and silver ornaments,
coins and cash. The miscreants stayed in their house for about an hour.
Complainant Vishwas managed to come out of the bathroom through a window and
then telephonically informed the police personnel of Police Station, Malviya
Nagar, Jaipur. On receiving the information, the police party reached the house
of complainant, where complainant submitted a written report, whereupon a case
for offence under Section 395 IPC was registered.
At the very outset it may be stated that case was registered against five
accused. The investigating agency arrested three accused, namely, Mohd. Babul,
Mohd. Jalal and Mohd. Ansari and after completion of investigation submitted
charge sheet against them for offence under Section 395 IPC. At the conclusion
of trial, the leaned trial Judge vide its judgment dated 31.3.1997 held the
accused appellant guilty and accordingly convicted and sentenced them. These
three accused challenged their conviction by filing appeals before the High
Court. Vide judgment dated 13.4.1998 the High Court dismissed the appeals of
Mohd. Jalal and Mohd.
Babul and maintained their conviction under Section 395 IPC and partly
allowed the appeal of accused Ansari by altering his conviction from Section
395 IPC to Section 411 IPC.
Investigation as against the appellant and co-accused Saidulla was kept
pending under Section 173(8) of the Code of Criminal Procedure, 1973 (in short
the 'Code'). Appellant Mohd. Kalam was arrested on 27.3.1998. Co-accused
Saidulla was also arrested but he absconded during trial and is still
absconding.
After arrest, Test Identification Parade was conducted and after completion
of investigation, police submitted charge sheet against the appellant.
The basic challenge before the High Court was to the possibility of
identification. With reference to the statement of Renu Jain (PW-1) and Vishwas
Jain (PW-3) it was contended that there was possibility of the appellant having
been shown to the complainant and his wife. It was stated that the Test
Identification Parade (in short 'TI Parade') was done after a period of over 7
days. High Court did not accept the plea. It held that the trial Court had
analysed this aspect. The High Court also considered the evidence of PWs 1 and
3 and came to hold that it was crystal clear that PW-3 had ample opportunity to
identify the appellant. It was also noted that the said witness was believed in
respect of the identification of three other accused persons who had earlier
faced trial and had been convicted for offence punishable under Section 395 IPC
and on appeal their conviction had been upheld by the High Court. The appeal
was accordingly dismissed.
4. Learned counsel for the appellant submitted that only on the basis of
identification by PW-3 the conviction should not have been recorded. It was
pointed out that PW-1 had accepted that his wife, PW-1 had not gone for the
identification.
5. Learned counsel for the respondent-State supported the judgment of the
trial Court.
6. The TI Parade was done on 3.4.1998, the accused was arrested on 27.3.1998
and on 28.3.1998 the accused was produced by the SHO at the residence of
Additional Chief Judicial Magistrate No.6 and prayer was made for police
custody remand. On the application for remand, the Magistrate allowed the
police custody till 31.3.1998. On 31.3.1998 the SHO again produced the
appellant before the Magistrate and on both occasions the Magistrate recorded
that the accused was produced 'Baparda'. The TI Parade was held on 3.4.1998 and
the appellant and other accused were correctly identified by PW-3. The evidence
of Shri Ratish Kumar Garg (PW-12) the Judicial Magistrate, First Class, Jaipur
shows that on 3.4.1998 he was working as Judicial Magistrate and on the direction
of the Chief Judicial Magistrate, Jaipur the accused-appellant alongwith others
were brought for the TI Parade. Vishwas Jain (PW-3) correctly identified the
appellant. It is also specifically stated in his evidence that it was not
correct to say that the accused "might have told to him that accused was
shown to the witness earlier."
7. As was observed by this Court in Matru
vs. 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 vs. 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 Evidence Act. It is
desirable that a test identification parade should be conducted as soon as
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.
8. 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 Indian
Evidence Act, 1872 (in short 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 a 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
vs. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another vs. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh
vs. State of Jammu and Kashmir (AIR
1972 SC 102).
9. In Jadunath Singh and another vs. 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 vs. 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 vs. 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 an 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."
11. In Harbhajan Singh vs. 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 vs. 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
appellant."
12. 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.
13. In Ram Nath Mahto vs. 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.
14. In Suresh Chandra Bahri vs. 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
trial.
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."
15. In State of Uttar Pradesh vs. 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.
16. In Ramanbhai Naranbhai Patel and others
vs. 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
State (Delhi Admn.) vs. V.
C. Shukla (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 vs. State of Maharashtra (AIR 2000 SC 160) and State of H.P.
vs. 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."
17. These aspects were also highlighted in Malkhansingh and Others
vs. State
of M.P. (2003 (5) SCC 746) and Munshi Singh Gautam (dead) and Ors. vs. State of M.P.
(2005 (9) SCC 631).
18. In view of the evidence which the trial Court and the High Court have
analysed and the identification by PW-3 in the TI Parade, there is no infirmity
in the conclusions of guilt of the accused. The appellant's conviction is
accordingly maintained.
The sentence also does not warrant interference.
19. The appeal is without merit and is dismissed.
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