Supreme Court of India
MAHABIRversusTHE STATE OF DELHI
- Citation
- 2008 INSC 486
- Decided
- 11 April 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
Refusal to join a test identification parade is inconsequential when the accused has already been shown to the witness, and identification in court without a TIP is admissible; thus Mahabir's conviction was set aside while Jalvir's conviction was upheld.
Summary
The Supreme Court examined two appeals arising from convictions for robbery and murder under Sections 394/34 and 302/34 IPC. The key issue was whether the refusal of the accused to participate in a test identification parade (TIP) and the fact that the accused had already been shown to the eyewitness rendered the identification evidence inadmissible. The Court held that TIPs are investigatory tools, not substantive evidence, and a refusal to join does not invalidate identification already made, especially when the accused had been shown to the witness. Consequently, Mahabir's conviction, which rested solely on such identification, was set aside, while Jalvir's conviction was upheld because the eyewitness had known him well and could identify him without a TIP. The appeals were accordingly allowed for Mahabir and dismissed for Jalvir.
Issues considered
- Whether the refusal of an accused to participate in a test identification parade defeats the prosecution's case when the accused had already been shown to the eyewitness.
- Whether identification of an accused in court without a prior test identification parade is admissible and sufficient for conviction.
- Whether the conviction of Mahabir can be sustained on the basis of identification after being shown to the witness, absent a TIP.
- Whether the conviction of Jalvir can be sustained given the eyewitness's prior knowledge of him.
Legislation cited
- Code of Criminal Procedure, 1973s. 162, s. 207
- Indian Penal Code, 1860s. 302, s. 34, s. 394
Subjects
test identification paradeeyewitness identificationEvidence Act s.9CrPC s.162convictionrefusal to participateappellate review
Judgment
[2008] 6 S.C.R. 361
,ll
MAHABIR A
v
THE STATE OF DELHI
(Criminal Appeal No. 932 of 2007)
APRIL 11, 2008
B
: ,,.. -4- (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
Evidence Act, 1963:
s.9 - Test identification parade - Evidentiary value of -
Held: Refusal of accused from joining test identification parade c
would be of no consequence, when accused had been shown
to witnesses before the proposed TIP - That being the only
piece of material which was used for conviction of accused,
the conviction cannot be sustained - Accused acquitted of
the offences charged - Code of Criminal Procedure, 1973 - D
"-1( s. 162 - Penal Code, 1860 - ss. 394134 and 302134 /PC.
Criminal Trial
Identification of accused in Court - No test identification
parade held - Accused known to the eye-witness from before E
- Witness stating that accused had come to their house many
times prior to incident - Held: There was no difficulty in
identifying the accused and naming him in FIR - Trial Court
rightly held him guilty and High Court committed no error in
upholding the conviction - Penal Code, 1860 - ss. 394134 and F
:'- ..,. 302134.
Two appellants along with two others were
prosecuted for offences punishable ulss 394/34 and 302/
34 IPC. The prosecution case as per the version of the
complainant-PW4 was that on the day of occurrence at G
about 4.15 P.M. accused 'J' who was related to her, came
'(
to her house along with his three associates including
accused 'M'. After entering the house all the four accused
took out their knives, and asked her about the gold kept
361 H
362 SUPREME COURT REPORTS [2008] 6 S.C. R.
A in the house. When she refused, she was beaten. The
accused removed her chain with locket and ear rings. Her
maid-servant tried to intervene. Meanwhile, the accused
tied a blouse around the neck of the complainant and she
became unconscious for sometime. After sometime she
B heard screams of her maid-servant and saw the accused
fleeing away. The complainant was admitted in the
hospital. The dead body of the maid servant was sent for
. post mortem. Subsequently, 'M' and another accused
were arrested. A VCR and ear rings belonging to the
C complainant were recovered from their possession. The
police applied for test identification parade of these
accused, but they refused to participate in the proposed
TIP. Later on, accused 'J' and the fourth accused were
also arrested. The trial Court convicted the accused of
the offences charged. The High Court dismissed their
D appeals. Aggrieved, accused 'M' filed Crl.A.No.932 of 2007
and accused 'J' filed Crl.A.No.1475 of 2007.
It was contended for the appellants that the High
Court erred in holding that showing the accused 'M' to
E PW -4 before the proposed test identification parade was
not relevant as the accused did not take part in the TIP. It
was also contended that accused 'J' was barely known
to PW-4 and as he was not a regular visitor to her house,
it was not possible for her to identify him.
F Allowing Crl. A. No. 932 of 2007 and dismissing Crl. A.
No.1475 of 2007, the Court
HELD: 1.1 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,
G the position in law is well settled by a catena of decisions
of this Court. The facts, which establish the identity of
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
H of mere identification of the accused person at the trial
MAHABIR v. THE STATE OF DELHI 363
for the first time is from its very nature inherently of a weak A
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 8.
... A accused who are strangers to them, in the form of earlier
identification proceedings. [para 12] [369-G; 370-A, B, C]
Matru v. State of U.P 1971 (2) SCC 75; Santokh Singh
v. lzhar Hussain 1973 (2) SCC 406 and Suresh Chandra Bahri
v. State of Bihar 1995 Supp (1) SCC 80 relied on. c
1.2 Test 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.
•. D
They do not constitute substantive evidence and these
...._,,.
parades are essentially governed by Section 162 of the
Code. [para 12] [370-C, D]
1.3 In the instant case, from the evidence of PW4, it
is clear that after the incident, two of the accused including E
accused. 'M' were shown to PW4 at the time of their arrest.
In fact, police brought many persons for identification of
culprits and identified accused 'M' to PW4. She admitted
that the· said accused were brought to the hospital.
Subsequently, she identified them in Court. ·(Para - 10) F
[368-E, F, G]
1.4 So far as recovery of the VCR is concerned,
which was treated as a ground for holding accused 'M'
and 'J' guilty, she accepted that she was not told about
recovery of VCR. She was told by the police that VCR G
had been recovered after the police persons had
brought accused 'M' and another. Interestingly, she also
'{
acceptec;I that accused 'M' and another were brought to
the hospital where she was asked to iden.tify them.
[para 10] [368-G, H; 369-A] H
364 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 1.5 In view of the accepted position that accused 'M'
was brought to the hospital to be shown to PW4,
grievance that the test identification parade was really of
no consequence because he had already been shown to
the witnesses has substance. That being the only piece
B of material which was used for conviction of accused 'M',
who is appellant in Crl. Appeal No. 932 of 2007 conviction
of appellant-accused 'M' cannot be sustained and is set
....
as.ide. [para 21] [375-D, E]
2.1. It is no doubt true that much evidentiary value
c cannot be attached to the identification of the accused in
Court where idEmtifying 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
D Court. However, failure to hold a test identification parade
would not make inadmissible the evidence of identification
in Court. The weight to be attached to such icfentification
should be a matter for the Courts of fact. In appropriate
cases it may accept the evidence of identification even
without insisting on corroboration. [para 12 and 15]
E
[370-D, E; 372-G, H]
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
F 1970 SC 1321 and Rameshwar Singh v. State of Jammu and
Kashmir AIR 1972 SC; Jadunath Singh and another v. The
State of Uttar Pradesh (1970) 3 SCC 518;Harbhajan Singh v.
State of Jammu and Kashmir (1975) 4 SCC 480; Ram Nath
Mahto v. State of Bihar (1996) 8 SCC 630; State of Uttar
Pradesh v. Boota Singh and others.1979 (1) SCC 31;
G
Ramanbhai Naranbhai Patel and others v. State of Gujarat
2000 (1) SCC 358; Malkhansingh and Others v. State of M.P
2003 (5) sec 746 - relied on. )'
2.2. So far as the accused 'J' is concerned, PW4 had
H categorically stated that she knew him six years prior to
MAHABIR v. THE STATE OF DELHI 365
[DR. ARIJIT PASAYAT, J.]
;.:
the incident. He had come to their house many times. A
Therefore, there was no difficulty in identifying the
accused and naming him in the first information report. It
is of significance that in the first information report name
of accused was specifically noted. The plea that name of
the accused could not have been given at the first 8
- "' 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. In this view of the
matter, the conclusions of the Trial Court in holding the c
accused guilty does not suffer from any infirmity. The
High Court rightly dismissed his appeal. [para 21 and
22] [375-F, G; 376-A]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 932 of 2007. D
... Cf'.
From the final Judgment and Order dated 8.3.2007 of the
High Court of Delhi at New Delhi in Crl. Appeal No. 430/2002
WITH
Criminal Appeal No. 1475 of 2007. E
Braham Singh, P.K. Bajaj, Shivpati 8. Pandey and S.K.
Sabharwal tor
the Appellant.
B.B. Singh, Subhash Kaushik and D.S. Mahra for the
Respondent. F
-+--
The Judgment of the Court was delivered by
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 G
to be noted that by the said common judgment three appeals
'"(
i.e. Criminal Appeal nos 430/2002, 545/2003 and 32812005
were disposed of.
2. Appellant-Mahabir (appellant in Criminal Appeal no.932
H
366 SUPREME COURT REPORTS . (2008) 6 S.C.R.
A 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 of2005). Each of them
was convicted for offence punishable under Section 394 read
with Section 34, and section 302 read with section 34 of the
B 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:
c
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
D
is (elated 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
E 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 djd 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
F 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 Kam la
@ Kharpai, her maid servant, and when she saw, a nylon string
G 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 AllMS where )
postmortem was conducted on her dead body. Subsequently,
H accused Mahabir and Mahesh were arrested by tRe police of
MAHABIR v. THE STATE OF DELHI 367
(DR. ARIJIT PASAYAT, J.]
A police station Haza rat 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 Ma"1esh and Mahabir but they refused to join
B 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
c 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
D 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
E 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. --
F - 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
G 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-appella'..i Mahabir had
H
368 SUPREME COURT REPORTS [2008] 6 S.C.R.
JI
refused to take part in it. So far as accused Jalvir is concerned, A
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 menti~ned though PW4
herself accepted that she was unconscious for four days. B
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 c
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
D
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.
E
9. Learned counsel for the respondent-State supported the
impugned order of the High Court which affirmed the conviction
and sentence a~ recorded by the Tria'l 0Court.
10. We shall deal with the appeal filed by the accused
Mahabir. From the evidence of PW4 it is clear that after the F
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 G
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 H
,.,.
'i;;
MAHABIR v. THE STATE OF DELHI 369
(j·'• [DR. ARIJIT PASAYAT, J.]
't,
.. k accepted that Mahabir and Mahesh were brought to the hospital A
where she was asked to identify them.
~ ·~;,,
11. As was observed by this Court in Matru v. State of U. P
(1971 (2) sec 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 B
•, ~ progress with the investigation into the offence is proceeding
on tlie right lines. The identification can only be used as
corroborative of the statement in court. (See Santokh Singh v.
lzhar Hussain (1973 (2) SCC 406). The necessity for holding
an identification parade can arise only when the accused are c
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 D
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 E
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 F
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
G
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, H
/
370 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 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
B 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
C 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
0
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
E 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
F Chandrappa and others v. State of Andhra Pradesh (Al R 1960
SC 1340), Budhsen and another v. State of UP (AIR 1970 SC
1321) and Rameshwar Singh v. State of Jammu and Kashmir
(AIR 1972 SC 102).
G 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
H accused over a period of time. The High Court had found that
MAHABIR v. THE STATE OF DELHI 371
[DR. ARIJIT PASAYAT, J.]
):
the witnesses were independent witnesses having no affinity A
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. B
'
~,. 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 c
sight. Though he made a mistake about his name by
referring to him as Kailash Chandra, it Wa$ 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 D
of the identification parade would not vitiate the evidence .
... J(
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 E
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: F
-to.
"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 G
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." H
372 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 14. In Harbhajan Singh v State of Jammu and Kashmir
(1975) 4 sec 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
e 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
c. fired from the rifle of the appellant. Noticing these circumstances
this Court held:-
"ln 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
D 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 UP (AIR 1971 SC 363)
E 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
F 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."
G 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 perscn identified or who had no particular reason
to rememberthe person concerned, if the identification is made
H for the first time in Court.
MAHABIR v. THE STATE OF DELHI 373
[DR. ARIJIT PASAYAT, J.]
k
16. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC A
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 B
-i 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 c
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 D
... ?''
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 E
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 F
. ~ adopti~g 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 G
quite a number of times at different point of time and places
which fact may do away with the necessity of a Tl parade."
1
18. In State of Uttar Pradesh v. Boota Singh and others
(1979 (1) SCC 31), this Court qbserved that the evidence of
H
374 SUPREME COURT REPORTS [2008) 6 S.C.R.
A 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.
B 19. In Ramanbhai Naranbhai Patel and others v. State of
Gujarat (2000 (1) sec 358) after considering the earlier
lo, -
decisions this Court observed:-
"It becomes at once clear that the aforesaid observations
c 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
D
decision, in turn, relied upon an earlier decision of this
Court in the case of V C. Shukla v. State (Al R 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
E 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
F learned Counsel for the appellants, that in the absence of ,I·
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
G 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 (AIF\ 2000 SC 160) and
State of H.P v. Lekh Raj (AIR 1999 SC 3916), had not
H considered the aforesaid three-Judge Bench decisions
MAHABIR v. THE STATE OF DELHI 375
[DR. ARIJIT PASAYAT, J.]
of this Court. However, in our view, the ratio of the aforesaid A
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 B
appellants that the evidence of, these two injured witnesses
::. I
i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai
identifying the accused in the Court may be treated to be
ofno 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
c
ahd 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
D
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, E
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 F
~ -,l
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 information report. It is of significance that in the G
first information report name of Jalvir was specifically noted.
The plea that Jalvir's name could not have been given at the
-1 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 H
376 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 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
accusec:t-appellant Jalvir. We find no infirmity in the conclusions
B of the High Court to warrant interference. Therefore, Criminal
Appeal no.1475of2007 stands dismissed and as noted above,
Criminal Appeal no.932 of 2007 is allowed.
S.K.S. Criminal Appeal No. 932/2007 allowed
Criminal Appeal No. 1475/2007 dismissed.
..
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