IQBAL AND ANOTHERversusSTATE OF UTIAR PRADESH

                    [2015) 6 S.C.R. 239


                   IQBALAND ANOTHER                              A
                              v.
               STATE OF UTIAR PRADESH
            (Criminal Appeal No. 1663 OF 2012)
                                                                 B
                        MAY6, 2015
        (T.S. THAKUR AND R. BANUMATHI, JJ.]

        Penal Code, 1860 - s. 396 - Conviction under - By
courts below- On appeal, held: Conviction solely based on        c
identification of the accused person by eye-witnesses and
their identification in Test-Identification Parade - Identification
of the accused by the eye-witnesses was doubtful in view of
the fact that the incident occurred in the pitch of darkness
and hence has to be viewed with caution by looking for D
corroboration - No recovery of stolen property or weapons
of crime was made to connect the accused persons with the
crime - In absence of corroborating evidence, conviction
solely based on the identification of the accused, cannot be
sustained - Appellants-accused acquitted, giving them E
benefit of doubt.

        Test Identification - Evidentiary value - Held:
evidence of identification of the miscreants in the Test
Identification Parade is not a substantive evidence -            F
Prosecution has to adduce substantive evidence by
establishing incriminating evidence connecting the accused
with the crime.

       Allowing the appeal, the Court                           G
       HELD: 1. In the commission of offence of dacoity,
identification -becomes susceptible to errors and
miscarriage of justice. In the light of the fact that the
incident occurred in the pitch of darkness, the H
                             239
240        SUPREME COURT REPORTS               [2015] 6 S.C.R.

A     identification of the appellants by the witnesses has to
      be viewed with caution and the court is to look for
      corroboration strengthening the identification. [Paras 12
      and 14) [246-C; 249-A]

B        2. Evidence of identification of the miscreants in
  the test identification parade is not a substantive
  evidence. Conviction cannot be based solely on the
  identity of the dacoits by the witnesses in the test
  identification parade. The prosecution has to adduce
C substantive evidence by establishing incriminating
  evidence connecting the accused with the crime, like
  recovery of articles which are the subject matter of
  dacoity and the alleged weapons used in the commission
  of the offence. [Para 15) [249-B-C]
D
         3. In order to bring home the guilt of the accused
  persons, it is the duty of the prosecution to prove that
  the stolen property was in the possession of the accused
  persons or that the accused had knowledge that the
E property was a stolen property or the accused persons
  had converted the stolen property. No such recovery
  was made to connect the appellants and other non-
  appealing accused persons with the crime. [Para 17]
  [250-B-C]
F
         4. Courts below based the verdict of conviction
  solely on the oral testimony of PW1 to PW3 and the
  identification of the appellants and other non-appealing
  accused in the test identification parade. In the a11>sence
G of any other evidence like recovery of stolen jeWellery
  or other articles strengthening the prosecution case,
  conviction cannot be based solely on the identification
  of the accused in the test identification parade. Serious
  doubts arise as regards identification of the accused
H regarding complicity of the appellants in the commission
      IQBAL AND ANOTHER v. STATE OF UTTAR                       241
                   PRADESH

of dacoity and their identification by the witnesses and A
the prosecution has failed to prove the guilt of the
accused beyond reasonable doubt and the conviction
of the appellants under Section 396 IPC cannot be
sustained and is liable to be set aside. [Para 19] [250-H;
251-A-C]                                                   B

  Hari Nath and Anr. vs. State of U.P, (1988) 1 SCC 14:
  1988 (1) SCR 848 - relied on.

                   Case Law Reference                            c
  1988 (1) SCR 848          relied on.    Para 12

      CRIMINALAPPELLATE JURISDICTION : Criminal
Appeal No. 1663 of2012.
                                                                 D
      From the Judgment and Order dated 14.05.2012 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
2of1981.

     Mahabir Singh, S. S. Shamshery, Sandeep Singh, Amit         E
Sharma, R. C. Kohli for the Appellants.

        Ratnakar Dash, Sr. Adv., Abhisth Kumar, Sudeep Kumar
for the Respondent.

       The Judgment of the Court was delivered by                F

       R. BANUMATHI, J. - 1. This appeal by special leave
arises out of the judgment dated 14.05.2012, passed by the
High Court of Judicature at Allahabad dismissing Criminal
Appeal No.2 of 1981, confirming the conviction of the G
appellants under Section 396 IPC and also the sentence of
ten years rigorous imprisonment imposed on each of them.

        2. Case of the prosecution is that on the intervening
night i.e. on 21/22.09.1979, the complainant-Patia Singh         H
242         SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A (PW1) was sleeping in his house. His brothers Saran Singh,
  Sukhbeer Singh and his children were sleeping in their house.
  Both the houses were adjacent to each other. In the midnight
  at about 1.00 o'clock, PW1-Patia Singh heard the noise of
  gun firing and in the light of torch, he saw that in the house
B of his brother Saran Singh, about 14-15 dacoits were looting
  the property and that two of them on the roofs and two dacoits
  were standing on the gate holding guns and they were
  continuously firing. All the inmates of the house witnessed
  the incident in the torch light and electric light emanating from
C tube well. On raising alarm, the villagers came out to help them
  and they were carrying torches and they warned the dacoits
  from behind the walls. When Saran Singh tried to control the
  dacoits, the dacoits opened fire and he was shot dead. The
D miscreants looted the articles in about one and half hours and
  fled away from the scene.

               3. On the basis of the statement of the complainant-
      Patia Singh (PW1 ), a case was registered under Section
      396 IPC in FIR No.258/1979 in P.S. Parikshitgarh, Meerut
E     on 22.09.1979. PW8-Nepal Singh (SI) had taken up the
      investigation and he investigated the spot and collected the
      list of looted articles from Jay Singh and Sukhbeer Singh.
      Harpal Singh-PW4(SI) conducted the inquest on the body
 F    of the deceased Saran Singh. Autopsy on the dead body
      was performed on 23.09.1979 by Dr. S.P. Goel and he opined
      that the death was due to gunshot injuries. PW8-Nepal Singh
      recorded the statement of the witnesses and seized the
      torches, lanterns and prepared the site map and recovery
G     memo. The accused were arrested on the night of 81
      9.10.1979 and the test identification parade was conducted
      in District Jail, Meerut on 15.11.1979 by PW6-Seeta Ram
      (Special Executive Magistrate). PW7-Bhanu Pratap (SI) had
      taken up further investigation and received the report of test
H     identification parade. On the basis of investigation conducted
      IQBAL AND ANOTHER v. STATE OF UTTAR                       243
           PRADESH [R. BANUMATHI, J.]

by PW7 and his predecessor investigating officers,               A
chargesheet was filed against the accused-appellants, namely,
Iqbal and Khurshed and against non-appealin·g accused,
namely, Kripa s/o Buddhu and Kishnu s/o Ram Chander under
Section 396 IPC.
                                                                 B
        4. To bring home the guilt of the appellants, prosecution
examined as many as ten witnesses and exhibited documents
and material objects. Upon appreciation of evidence, Vlth
Additional Sessions Judge, Meerut held that the prosecution
proved the case beyond reasonable doubt and vide judgment C
dated 23.12.1980, convicted the accused-appellants and the
non-appealing accused under Section 396 IPC and sentenced
them to undergo ten years rigorous imprisonment. Aggrieved
by the verdict of conviction, the appellants namely, Iqbal, Kishnu
and Khurshed, preferred Criminal Appeal No.2of1981 and D
Kripa filed Criminal Appeal No.5of1981 in the High Court of
Judicature atAllahabad. After three decades of delay, the High
Court vide judgment dated 14.05.2012, dismissed both the
criminal appeals and thereby confirmed the conviction and also
the sentence of imprisonment imposed on them. Aggrieved E
by the dismissal of their appeal, the appellants herein, namely,
Iqbal and Khurshed, have preferred this appeal assailing the
correctness of the verdict of conviction.

         5. Learned counsel for the appellants contended that F
at the time of incident, it was pitch dark and it would have
been highly improbable for the witnesses to identify the
dacoits with flash of torches. It was further submitted that
PW1-Patia Singh had given an exhaustive list of more than
fifty valuable items which had been stolen, but except three G
kilograms of ghee in a clay pot, nothing was recovered from
the appellants and in the absence of substantive evidence
corroborating the identification, the courts below ought not
to have convicted the appellants. It was also submitted that H
the appellants have no criminal antecedents to commit such
244        SUPREME COURT REPORTS                 [2015] 6 S.C.R.


A     heinous crime.

          6. Per contra, learned counsel for the respondent- State
  of Uttar Pradesh contended that the testimony of PW1-Patia
  Singh, PW2-Jay Singh and PW3-Begraj who are the eye
B witnesses and their presence on the spot is quite natural and
  they being the eye witnesses to the incident had seen the
  dacoits for a considerable time and, therefore, identification
  of the appellants being. the dacoits cannot be doubted. It was
  further argued that based on the testimony of PW1 to PW3
C and other materials on record, courts below by concurrent
  findings convicted the appellants under Section 396 IPC and
  such concurrent findings cannot be interfered with .

            .?. We have carefully considered the rival submissions
D and perused the impugned judgment and evidence on
  record.

          8. PW1-Patia Singh, who is the complainant, has
  narrated the incident stating that about 1.00 o'clock in the
E night of 21/22.09.1979about14-15 dacoits came and looted
  the house of his brother Saran Singh. On hearing alarm,
  villagers, namely, Ganga Saran, Daya Chand and Devi Singh
  who were having torches came and took shelter in PW1 's
  house and with the torch light, he was able to see the dacoits.
F PW1 further stated that after the commission of the dacoity
  when he entered into his brother's house he saw his brother-
  Saran Singh being shot dead. He has stated that there is a
  road of three and a half yards width between his house and
  his brothers' houses and that other villagers witnessed the
G incident from the shelter of his house in the sitting room.

          9. PW2-Jay Singh, son of the deceased Saran Singh,
  has stated that on that fateful night he was sleeping in the
  verandah of his house, which is adjacent to PW1 's house,
H with his father Saran Singh, Haran Singh and other inmates
       IQBALAND ANOTHER v. STATE OF UTTAR                          245
            PRADESH [R. BANUMATHI, J.]

of the house. PW2 further deposed that at about 1.00 o'clock A
in the night about 14-15 dacoits came with the torches and
looted the house and also started firing. In order to save his
life, he came out running from the house and took shelter in
the sitting room of PW1-Patia Singh (PW1) and PW2-Jay
Singh further stated that from the house of PW1, he saw the B
faces of dacoits in the flash light of torches. He further stated
that after the incident, he went back to his house and found
that his father Saran Singh being shot dead. PW3-Begraj
also deposed on the same lines that on the critical night of
the incident, he heard sound of fire arms and he went to C
Albel's house which is at a distance of five-six yards from
the house of the deceased. He further stated that he saw
the faces of the dacoits in the torch light flashed by the villagers.

         10. In cases of dacoity, usually, the offence is committed D
by unknown persons with the criminal background. It is only in
very few cases, the accused-dacoits are known to the victim.
PW1-Patia Singh and PW2-Jay Singh have stated that they
had witnessed the incident from a distance of three and half
yards. PW3-Begraj also stated that he had witnessed the E
incident from a distance of five-six yards in the feeble torch
light. Admittedly, according to the witnesses, there was no
electricity at the time of incident in their houses. They claimed
thatthey could see the accused persons with the help oftbeir F
torch lights. In the courts below, onbehalf of the accused
persons, it was argued that the night of incident was an
amavasya-new moon night. A perusal of calendar of that month
in that year, it is seen thatthe intervening night of 21/22.09.1979
was a new moon night i.e. 'amavasya'.                               G

        11. In our considered view, it is unbelievable that on a
new moon night when it was pitch dark, the witnesses who
were frightened and who were hiding themselves behind the
walls in order to save themselves, could have seen actual           H
faces of the accused persons just by flash of torch lights on
246         SUPREME COURT REPORTS                    [2015] 6 S.C.R.


A     their faces and in the light of lantern. Further, there were about
      14-15 dacoits in number, all armed with deadly weapons and
      were continuously-making ingress and egress in the house of
      the deceased, it becomes inconceivable as to how the
      witnesses standing at a distance in a feeble light would have
B     been able to identify the dacoits.

              12. When the witnesses in a panicky state and standing
      at a distance of three and half yards and five-six yards, it is
      doubtful whether the witnesses would have gained enduring
C     impression of the identity of the accused. In the commission
      of offence of dacoity, identification becomes susceptible to
      errors and miscarriage of justice. In Hari Nath andAnr. vs. State
      of U.P., (1988) 1SCC14, this Court held as under:-

D       "16 .... The conduct of an identification parade
        belongs to the realm, and is part of the investigation.
        The evidence of test identification is admissible
        under Section 9 of the Evidence Act. But the value
        of the test identification, apart altogether from the
E       other safeguards appropriate to a fair test of
        identification, depends on the promptitude in point
        of time with which the suspected persons are put
        up for test identification. If there is unexplained and
        unreasonable delay in putting up the accused
F       persons for a test identification, the delay by itself,
        detracts from the credibility of the test.

        17. The one area of criminal evidence susceptible
        of miscarriage of criminal justice is the error in the
G       identification of the criminal. Indeed Prof.
        Borchard's Convicting the Innocent records several
        criminal convictions in which the accused was
        subsequently proved innocent. The major source
        of the error is to be found in the identification of
H       the accused by the victim of the crime. Indeed the
   IQBAL AND ANOTHER v. STATE OF UTTAR                 247
        PRADESH [R. BANUMATHI, J.]

learned author refers to the source of mistaken         A
identification thus:

  "The emotional balance of the victim or
  eyewitness is so disturbed by his
  extraordinary experience that his powers of           B
  perception become distorted and his
  identification      is   frequently      most
  untrustworthy. Into the identification enter
  other motives not necessarily stimulated
  originally by the accused personally - the            C
  desire to requite a crime, to exact vengeance
  upon the person· believed guilty, to find a
  scapegoat, to support. consciously or
  unconsciously, an identification already made
  by another. Thus. doubts are resolved against         D
  the accused."

18. Glanville Williams in The Proof of Guilt-(Hamlyn
Lectures) - refers to the errors of recognition
breeding an invincible assurance in the witnesses,      E
highly deceptive for those who are not forewarned
of such possibilities, and excerpts Gorphe's results
of a continental investigation, thus:

  "There is no difference from the subjective           F
  point of view, between true and false
  recognition, so far as their intrinsic qualities
  are concerned, and there are no objective
  signs to distinguish one from the other..... The
  witness's certainty may not be immediate,             G
  without this delay being necessarily a sign of
  error. Nevertheless, error is more frequent
  when recognition comes some time after
  seeing .... The act of recognition is very open
  to suggestion in all its forms .... Resemblance       H
248       SUPREME COURT REPORTS                 (2015] 6 S.C.R.


A        is a matter of relativity. For a white person, all
         negroes are like each other, and conversely.
         A person can much better distinguish those
         of his own age and condition than those of
         different ages and condition. Uniform is a
B        cause of fallacious resemblance, above all for
         those who do not wear it. (emphasis
         supplied)"

      19. The evidence of identification merely
C     corroborates and strengthens the oral testimony
      in court which alone is the primary and subslantive
      evidence as to identify ... "

           13. As noticed earlier, test identification parade was
o conducted in jail on 15.11.1979 by PW6-Special Executive
  Magistrate in which the witnesses PW1, PW2 and PW3
  identified the accused. As far as test identification parade is
  concerned, it is relevant to note that accused-Kripa has
  contended that he had been falsely implicated in the case
E because of the rivalry with Rampa! Singh and his maternal
  uncle Mangeram. Accused-Kripa also pleaded that the
  witnesses knew them as they were living in nearby villages
  and because of rivalry, they were being falsely implicated in
  the case. So far as appellant No.2-Khurshed and another
F co-accused-Kish nu are concerned, they had stated that they
  were arrested by the police from their houses and they were
  shown to the witnesses at the police station and they were
  also photographed before holding test identification parade.

G         14. Even though the complainant-PW1 and other
  witnesses have denied the defence plea, in the light of the
  fact that the incident occurred in the pitch of darkness, the
  identification of the appellants by the witnesses has to be
  viewed with caution and the court is to look for corroboration
H strengthening the identification.
      IQBAL AND ANOTHER v. STATE OF UTTAR                    249
           PRADESH [R. BANUMATHI, J.]

       15. Evidence of identification of the miscreants in the A
test identification parade is not a substantive evidence.
Conviction cannot be based solely on the identity of the dacoits
by the witnesses in the test identification parade. The
prosecution has to adduce substantive evidence by
establishing incriminating evidence connecting the accused B
with the crime, like recovery of articles which are the subject
matter of dacoity and the alleged weapons used in the
commission of the offence.

        16. It is pertinent to note that in the present case no C
recovery of articles which are the subject of dacoity was made
from the appellants or other non-appealing accused persons.
In his complaint, PW1 gave a list enumerating fifty expensive
items,' such as gold jewellery, silver articles, sarees and
clothes and also cash. As per the recovery memo, what was D
recovered was just three kilograms of ghee in a clay pot. In
his deposition, PW8-Nepal Singh (investigating officer) has
stated that at the instance of Kripa, he had recovered a
'chaptaghu' and an 'attire'. However, in the recovery memo,
only three kilogram of ghee is mentioned which is said to E
have been recovered on the disclosure statement of accused
Kripa. From the appellants as well as from the non -appealing
accused persons, not a s,ingle item of valuable out of the
whole list of stolen articles was recovered. It is quite F
unbelievable that within a short span of time i.e. from
21.09.1979 (date of incident) to 9.10.1979 (date of arrest),
the accused would have converted or sold out all the valuable
items. Even if we accept that they had done so, the
prosecution ought to have adduced evidence as to how and G
in what manner the articles which were the subject matter of
dacoity were either disposed of or converted. Murder and
robbery were part of the same transaction. Consequent upon
the disclosure statement, only three kilograms of ghee was
recovered.                                                      H
250         SUPREME COURT REPORTS                   [2015] 6 S.C.R.


A         17. In order to bring home the guilt of the accused
  persons, it is the duty of tlie prosecution to prove that the
  stolen property was in the possession of the accused persons
  or that the accused had knowledge that the property was a
  stolen property or the accused persons had converted the
B stolen property. No such recovery was made to connect the
  appellants and other non-appealing accused persons with
  the crime.

              18. In the trial court, on behalf of some of the accused
C     persons, a plea was taken that some of the accused were
      known to the witnesses and that the accused are resident of
      Jayee village and Buksar village and are doing cultivation
      and that the accused are known to the witnesses. The
      prosecution witnesses having known to the accuse_d earlier,
D     the witnesses are residents of village Etmadpur and used to
      take the bus at village Jayee and at villagel<hajoori bus
      stand. The courts below observed that the identification of
      the appellants cannot be discarded merely on the ground
      that the appellants and accused Kishnu reside in the village
E     Buksar and that the witnesses knew the accused long before.
      The accused could not adduce evidence to substantiate the
      defence plea that the prosecution witnesses had known the
      accused earlier. Non-adducing of evidence to substantiate
F     the defence plea by the accused seems to have substantially
      weighed in the mind of the trial court to accept the prosecution
      case.

          19. Courts below based the verdict of conviction solely
  on the oral testimony of PW1 to PW3 and the identification
G of the appellants and other non-appealing accused in the
  test identification parade. As discussed earlier, in the absence
  of any other evidence like recovery of stolen jewellery or
  other articles strengthening the prosecution case, conviction
H cannot be based solely on the identification of the accused in
        IQBAL AND ANOTHER v. STATE OF UTTAR                         251
             PRADESH [R. BANUMATHI, J.)

the test identification parade. Serious doubts arise as regards      A
identification of the accused regarding complicity of the
appellants in the commission of dacoity and their identification
by the witnesses and the prosecution has failed to prove the
guilt of the accused beyond reasonable doubt and in our view,
the conviction of the appellants under Section 396 IPC cannot        B
be sustained and is liable to be set aside.

        20. Conviction of the appellants under Section 396 IPC
and the sentence imposed on them is set aside and this appeal
is allowed. The appellants are ordered to be set at liberty          C
forthwith unless they are required in any other case.

Kalpana K. Tripathy                               Appeal allowed.


                                                                     D