Holding

The Court held that the identification by eyewitnesses, corroborated by recovered stolen property and the presumption under Section 114 Evidence Act, was sufficient to sustain the conviction for dacoity and related offences.

Summary

The appellant Pravin was convicted under IPC sections 395, 397 and 450 for a daylight bank dacoity, and under the Arms Act for possession of an unlicensed firearm. He challenged the conviction on the ground that the identification parade was a farce, photographs of the accused had been shown to witnesses, and the recovered stolen property was insignificant. The Supreme Court examined the testimony of several bank employees who had been with the dacoits for a substantial period, the recovery of Rs 40,000, bank slips and a bag containing personal documents from the appellant’s possession, and the magistrate’s record of the identification parade. Relying on the reliability of the eyewitnesses, the corroborative material and the presumption of possession under Section 114 of the Evidence Act, the Court held that the procedural irregularities did not vitiate the evidence. Consequently, the conviction for dacoity and the Arms Act offences was upheld.

Issues considered

The validity of the identification parade despite alleged showing of photographs and delay
Whether the recovered stolen property and possession of money create a presumption of guilt under Section 114 of the Evidence Act
The adequacy of eyewitness testimony from bank employees in a daylight dacoity
The correctness of conviction under Sections 25(1‑B)(a) and 27 of the Arms Act
Whether the appellate court should interfere with the findings of the trial and high courts under Article 136

Legislation cited

Arms Act, 1959s. 25(1-B)(a), s. 27
Indian Evidence Act, 1872s. 114
Indian Penal Code, 1860s. 395, s. 397, s. 450

Subjects

dacoityidentification paradeeyewitness identificationSection 114 Evidence ActArms Actbank robberycriminal appeal

Judgment

[2008) 5 S.C.R. 367

----1 PRAVIN A
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 546 of 2008)
MARCH 25, 2008
B
k
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

Penal Code, 1860- s.395 rlw ss.397 and 450:
Oacoity - Bank dacoity in broad day-light by using fire-
arms -- Conviction of Appellant by Courts below- Justification c
of - Held: Justified - Witnesses were bank employees who
were with the dacoits for substantial time - Dacoits had not
covered their faces - Identification in peculiar facts of the case
by PW1 and other witnesses acceptable inspite of the so-
called defects shown by defence in holding investigation - D
Presumption uls.114 of the Evidence Act, in view of recovery
of huge sum and stolen property from possession of Appellant
- Also, corroborating evidence of recovery of other materials
like bag of PW-6 - Besides, no explanation for seizure of
unlicenced gun and bullets - Arms Act, 1959 - ss.25(1-B)(a) E
and 27 - Evidence Act, 1872 - s.114.
Two persons, alleged to be involved in committing
dacoity in a bank in broad day-light, were convicted by
the Trial Court under s.395 r/w ss.397 and 450, IPC and
also under ss.25(1-B)(a) and 27 of the Arms Act, 1959. The F
>--,l conviction was upheld by the High Court. While one
convicted accused came up before this Court by way of
the present appeal, the other convicted accused has not
challenged his conviction.
G
The contention of Appellant is that the identification
parade in respect of the accused was a farce as
photographs of both the accused persons were already
- _.., shown to the witnesses; that if the identification itself
367 H
368 SUPREME COURT REPORTS [2008] 5 S.C.R.

A failed, then there was hardly any evidence left against the
accused and that the discoveries of the so-called stolen
property was also farcic;:il and insignificant.
As against this, the prosecution pointed out that the
witnesses were bank officers who were with the dacoits
8 for substantial time and, therefore, had the opportunity to
watch the accused persons closely and as such
identification of the accused persons in Court at the
instance of the eye-witnesses was no less significant; that
the discoveries made included the bag of PW-6 along with
C the documents therein which established an unassailable
nexus of the accused with the crime and that even the
·vehicles used for committing the crime were seized and
identified by the witnesses. It was further contended that
·since both the Courts below had concurrently found the
D accused guilty on the basis of appreciation of evidence
and since no significant error was pointed out, this Court
should not interfere in its jurisdiction under Article 136 of
the Constitution.
Dismissing the appeal, the Court
E
HELD:1.1.The evidemce of PW-1, Branch Manager of
, the Bank, was the most: important as he had graphically
described as to how th1e dacoity took place and how he
. was taken out by the two accused persons. This witness
F had further stated that it was almost within 10 minutes
after the dacoits left the bank that the police reached there.
There is no significant 1:ross-examination of this witness
, at all as regards the evidence and more particularly his
· identification of the accused in the Court. He had very
specifically identified the Appellant. Very significantly no
G
question has been put to this witness. It was not
suggested if the accused had covered their faces. There
is no challenge also to the story that the dacoits had
pointed revolver at him. In the absence of any substantial
cross-examination, the Trial Court and the High Court were
1

H

I
I
PRAVIN v. STATE OF MADHYA PRADESH 369

- --1 not in error in accepting the evidence of this witness A
particularly about his identification. The witness had full
opportunity in broad day-light to be with the accused and
the incident itself was so significant that it would
undoubtedly make a dent on his memory. He was after-all
an educated bank officer holding a responsible position B
of a Branch Manager. Since his evidence about knowing
the accused-appellant was not at all challenged, the courts
below were right in accepting the evidence. [Para 12]
[378-C, D, E, F, G; 379-A]
1.2. It is true that in his substantive evidence, PW1 c
did not speak about his identifying the Appellant in the
identification parade but there is a clear cut evidence of
the Magistrate who conducted the Parade confirming such
identification. There is practically no cross-examination
of this witness. [Para 22] [385-E, F] D
~ 1.3. The recovery of Rs.40,000/- from the possession
of Appellant was accepted by both the Trial and the
Appellate Court. The recovery of the bank slips as also of
the gun which was brandished against PW1 is also no
less significant. There is no explanation given by the E
Appellant as to how a huge sum of Rs.40,000/- and the
Bank slips and the other bank documents could be
recovered from him. [Para 22] [385-F, G]
2. PW-4 corroborated the evidence of PW-1 and there
is nothing contradictory in his evidence. He is also a bank F
~·~
employee working in the same branch. He also supported
the version that the dacoits snatched the bag from a lady
customer as also the bag of PW-6, another bank employee.
This witness was called in the jail for identification and he
claimed that he had correctly identified the accused G
persons who were present in the court. This witness had
also reiterated, in his cross-examination, about the
- ....... language which was being spoken by the dacoits. He
specifically denied that the accused persons, who were
present in the Court, were shown to him earlier. He H
370 SUPREME COUHT REPORTS [2008] 5 S.C.R.

A specifically stated about the identification parade where ,._ -
cashier Chauhan, C.S. 13atham, PW1 and other persons
were called. [Para 13] [379-A, B, C, F]
3. PW-5, also a bani< employee, graphically described
the whole dacoity. He also claimed that he had correctly
B identified the appellant and the other accused. He also
reiterated in his cross-examination that he was not shown ~
any photographs of th1;i accused nor was any accused
shown to him in the Police Station. As regards the
identification parade he' was specifically cross-examined
c and he refuted all the suggestions. Very significantly this
witness was suggested that there was no identification
parade held at all in the1 jail. Even if the test identification
parade is ignored, there is nothing suggested to him in
his cross-examination to challenge his identification in the
D Court. Though identification for the first time in the Court
is inconsequential, however, in this case all these
witnesses were the bank employees who had undergone ,.
a traumatic experience of a broad day-light dacoity. They
were with the dacoits for substantial time. The dacoits had
also not covered threir faces. It may be that some
E photographs may have been shown regarding some
arrested persons but that by itself does not affect the ...
evidence of PW5, particularly when it is not put to him
specifically that he had seen the photographs of the
appellant and his idenltification was on the basis of those
F photographs. The Trial Court as well as the High Court
have rightly relied on this witness, more particularly
because he has stoutly denied the suggestions regarding ~-j
the accused persons being shown to him earlier when
they were in the custody. [Para 14] [379-G; 380-A, B, G;
G 381-A, B, C, D, E]
4.1. Though it was argued that there was delay in
holding the identification parade, but in the peculiar facts
and circumstances of this case, this delay was not of any )'- ~

I
significance, since the other accused persons were still
H at large and, therefore, the Test Identification Parade could
PRAVIN v. STATE OF MADHYA PRADESH 371

not have been conducted in respect of only some of the A
accused. Again the question of delay was never raised
by way of cross-examination and no explanation was
called for from the investigating officer. [Para 23] [386-A, B]
4.2. As regards the defence theory of planting after
the arrest of dacoits, one wonders as to how and 8
wherefrom the police would bring a huge sum of
Rs.40,000/- for being planted. It is for this reason, that this
Court has chosen to accept the evidence of PW-1, PW-4
and PW-5. [Para 25] [387-F, G]
c
Pramod Manda/ v. State of Bihar [(2004) 13 SCC 150];
Bharat Singh v. State of UP [(1973) 3 SCC 896] and State of
Rajasthan v. Sukhpa/ Singh & Ors. [(1983) 1 SCC - relied
on.
5. Also, since the stolen property was recovered from D
the possession of the Appellant, this Court would be
justified in using the presumption raised by Section 114
of the Evidence Act. [Para 26] [387-G; 388-A]
Ronny v. State of Maharashtra [(1998) 3 SCC 625]- relied E
on.
6. Besides, there is also supporting and
corroborating evidence of the recovery of the other
materials like the bag of PW-6 which was recovered during
the investigation. This discovery of the bag is also F
extremely significant because there was no reason for this
bag which contained the private documents of PW6 to be
recovered from the accused. That also lends credence to
the fairness of the investigation by the police. [Para 27]
[388-A, B, C]
G
7.1. The identification in the peculiar facts of this case
by PW1 and other witnesses would be acceptable inspite
of the so-called defects shown by the Defence in holding
the identification. Considering the overall circumstances
in the peculiar facts and circumstances of this case, the H
372 SUPREME COURT REPORTS [2008] 5 S.C.R.

)-- ~
A appellant is guilty of c:ommitting the offence of dacoity.
[Para 27] [388-C, D, E]
7.2. There is also no explanation about the seized
gun and bullets. The gun was unlicenced and it was used
in contravention of Section 5 of the Arms Act. The
B conviction of Appellant under Sections 25 and 27 of the ·
~
Arms Act was correctly recorded by the Courts below.
[Para 28] [388-E, F]
CRIMINAL APPELLATE JURISDICTION : Criminal
c Appeal No. 546 of 2008.
From the final Jud1~ment and Order dated 1.12.2006 of
the High Court of Madhya Pradesh, Bench at Indore in Crl. A.
No. 113/2006.
Madhurima Tatia and Indra Makwana for the Appellant.
D
Govind Goel, C.D. Singh and Ram Naresh Yadav for the
Respondent.
The Judgment of the Court was delivered by

E V.S. SIRPURKAR, J. 1. Leave granted.
2. Appellant herein one Praveen, son of Ramchander
Sharma was convicted by .the Additional Sessions Judge for
committing the offences under Section 395 read with Sections
397 and 450 of the Indian Penal Code (for short "IPC"). Besides
F these offences, he was also found guilty for committing offence
under Sections 25(1-B)(a) and Section 27 of the Arms Act. Along ~-
with the present appellant one other accused Harish was also
convicted and sentenced for committing the same offences.
Both of them filed separate appeals before the High Court.
G However, both the appeals were dismissed by a common
judgment passed by the High Court. While Pravin, the present
appellant (original Accused No.1) has come up before us by
)>- ~
way of the present appea I, the other accused has not chosen to
challenge his conviction. We, therefore, are left with the case of
H Accused No.1 alone. A few facts would be necessary.
PRAVIN v. STATE OF MADHYA PRADESH 373
[VS. SIRPURKAR, J.]

~·~ 3. A broad day-light dacoity took place on 8.9.2003 on A
Dena Bank situated at Bapat Chauraha, Indore. According to
the complaint lodged by Ashok Kumar Dubey (PW-1), Branch
Manager, Dena Bank, at about 12.20 in the noon, two unknown
persons had entered in his cabin and one of them took out
rE!volver from his shirt and pointed towards him, pushed him out B
of the cabin and took him to the hall. The other associates of the
said persons, who were present there, asked the other members
of the staff and about 30-40 customers to stand in the hall with
their hands raised upwards by pointing pistol towards them. One
of the associates stood at the gate of the bank with pistol while c
other associates covered the other persons in the hall. The fifth
associate, who appeared to be their leader, had come inside
the bank and asked for the keys of the strong room. He took
one Mahender Chauhan towards safe by pointing pistol at him
while the other persons were asked to sit on the floor of the hall.
D
After about 10-15 minutes, two accused persons had come out
with the bags filled with notes from the safe. They had snatched
one bag from Sh.S.M. Dholey, staff member of the bank and
stuffed it with the bundles of notes from cash counter. The
accused then directed all the persons present there to move to
the gallery of toilet and shut them in a room. They threatened E
that if anyone used phone, then they would shoot such person.
Before that they had collected the mobile phones of all the
customers which they threw outside the bank. The mobile phones
of two of the customers were, however, not found. The accused
persons put lock on the gate of the bank and ran away. One F
customer, namely, Ashish Goyal broke the window panes
·~ towards the road and attracted the attention of the people. He
.only had given information to the Police Control Room on
Telephone No.100. The total amount looted was about
Rs.13,95,720/-. G
4. After committing the dacoity, the accused persons ran
away towards Meghdoot Garden in a Commander Jeep of grey
~ ~
or light blue colour and one Hero Honda Motorcycle. The black
bag of Shri S.M. Dholey, which was taken away by the dacoits
H
374 SUPREME COURT REPORTS [2008) 5 S.C.R.

A, was also described to be made of parachute cloth containing
three bank cheques of Hs.10,000/- each of Tehsildar Nazul,
photocopy of valuation report of Plot of Siddhipuram, auction
forms ofTehsildar Nazul, statement of 2003 of Navlakha Branch
Bank, driving licence of Shri Dholey and 10-11 ball pens. There
B were number of persons who saw this incident, namely, Surendra
Kumar, Mahendra Chauhan,AjayTandon, S.M. Dholey, Deepak,
M.L. Manharey, Sangeeta Silawat of bank staff and Ashish
Goyal, Prahlad Gotwal, Ujjwal, Rahul, Sushil Verma, Hargovind
Singh, etc., who were the visitors to the bank.All of them claimed
c that they would be able to identify the dacoits. The descriptions
of the accused persons were also given. The person who had
entered the cabin of the Branch Manager and pushed him was
about 25-30 years, height about 5 feet 6 inches. He had wheatish
colour complexion and had unshaven face with small mustaches
D with Z-black hairs. He was wearing ordinary black goggles,
cream colour pant and shirt. The second accused who was also
of the same average height, aged about 25 years, but was a
clean shaved person. Thia description of the other dacoits were
also given. The person who appeared to be the leader of the
accused persons was about 26 years old. His description was
E; also given. It was claimed that most of the looted bundles of the
notes were bearing seal of S.S.C. and slips of Dena Bank. It
was claimed that the accused persons could be id~ntified on
being seen.
F 5. The report given by Ashok Kumar Dubey was recorded
by SHO Baldevsingh Thakur (PW-52). The offence was
registered under Sec:tions 395 and 397 IPC and the
investigation started. Observation Memorandum was drawn.
During the investigation, the Branch Manager ShriAshok Kumar
Dubey (PW-1)produced the details of the looted notes, they
G were, 13 notes of Rs.1,000/- denomination, 264 notes of Rs.500/
- denomination, 5108 notes of Rs.100/- denomination, 3045
notes or Rs.SO/- denomination, 1347 notes of Rs.20/-
denomination and 56083 notes of Rs.10/- denomination. The
statements of witnesses were recorded.
It!
PRAVIN v. STATE OF MADHYA PRADESH 375
[VS. SIRPURKAR, J.]

6. The present accused came to be arrested on A
26.9.2003, i.e., barely within 18 days of the incident. Accused
Harish was arrested on 8.10.2003. On the basis of the discovery
statement made by accused Praveen, the registration
documents of the Motorcycle, copy of the Dainik Bhaskar
Newspaper which had published the news regarding the dacoity, B
one letter regarding the sale of Jeep No.MP-09-N-5946 by Atul
Parmar to Praveen Sharma and another letter regarding sale
of jeep and 18 other items were seized. Similarly as per Seizure
Memo (Exhibit P-18) one country made Kalla of .12 bore, 4
cartridges, 40 bundles of Rs.10/- denomination notes, totaling C
Rs.40,000/- which were bearing the slips of Dena Bank and
seal of S.A.C were also seized. One Slaty Colour Mahendra
Jeep without number was also seized from the accused. Similarly
280 slips of Dena Bank and other banks used on bundles of
notes,38tornslipsofS.M.S, 144fullslipsofS.M.S., 159plastic D
paper for tying bundles, 58 rubber rings, 160 thin rope of jute,
34 ordinary jute rope, 2 number plate of jeep MP-09-N-5945
and one broken lock were also recovered from the accused.
The Motorcycle of Hero Honda make bearing registration
No.MP-04-AN-7916 was also seized. One black Rexene bag
containing driving licence of Shri S.M. Dholey in a polythene E
bag, report of bank loan of Navlakha Dena Bank of Shri Dholey
were recovered from accused Harish Kumar Singh.

7. A Test Identification Parade was held in respect of both
the accused persons wherein they were got identified by F
Prosecution Witnesses, they being Daman Singh (PW-5),
Surendra Kumar (PW-4), Mahendra Chauhan (PW-10) and
Ashok Kumar Dubey (PW-1 ). According to the prosecution
Darshan Singh (PW-5) identified both the accused persons
correctly. Ashok Kumar Dubey (PW-1) also had identified both G
the accused persons correctly. Mahendra Chauhan (PW-10) and
Surendra Kumar (PW-4) had identified accused Harish correctly
but they had not identified accused Praveen correctly. The
identification proceedings about bag were also conducted and
the bag was got test identified. Ultimately, on the basis of the
H
376 SUPREME COURT REPORTS [2008] 5 S.C.R.

A investigation, the charge-sheet came to be filed for committing ,._ -
offences under Sections 395, 297, 450 IPC and Sections 25
and 27 of Arms Act. The charge-sheet also recorded that the
other accused persons, namely, Anand, son of Mohanlal,
Shashikant and two other accused persons were absconding
B and the investigation was continuing against them. One --
Shashikant, son of Dadnath was also involved, however, during f.
.the investigation it came to be reported that he had died in a
police encounter. Charges were framed against the accused
persons. They denied their involvement in the commission of
c crime and claimed false implication. Defence of Harish was
that on the day of incident he was present in the Block Head
0ffrce of Faizabad and on that day he had purchased a truck
1

for which documents have been prepared and that the police
,had falsely implicated him. He also pointed out that the police
had shown his photographs to the witnesses in the Test
D
Identification Parade. The defence of accused Praveen was
-f
that sirice the police could not apprehend the actual accused
persons, he was being falsely implicated in the case.
8. As many as about !55 witnesses came to be examined,
E including the eye-witnesses and the bank staff witnesses. The
.Sessions Judge convicted the two accused persons. On the
appeal having failed before the High Court, the present appellant
,is before us by way of this appeal.
9. Learned counsel appearing on behalf of the appellant
F very vehemently contended before us that the identification
parade in respect of this accused was a farce as the ...Ir.; ~·,
photographs of both the accused persons, namely, Praveen and
' Harish were already shown to the witnesses which was clear
from the evidence before the court. It was further urged that if
G , the identification itself failed, then there would hardly be any
evidence left against the accused. It is also urged that the
discoveries of the so-called stolen property was also farcical
'
and insignificant. Learned counsel also urged that the ,_ ~ '
Investigating Agency somehow wanted to do the face saving
H on account of their failure to catch the real culprits inspite of the
1
PRAVIN v. STATE OF MADHYA PRADESH 377
[VS. SIRPURKAR, J.]
~---{
fact that the dacoity had taken place in broad day-light. A
Ultimately, even the convictions under Sections 25 and 27 of
the Arms Act came to be assailed on the ground that such
conviction could not have been ordered in law. Lastly, by way of
an alternative contention, learned counsel pointed out that the
4' sentence was too harsh as compared to the offence committed. B
-t 10. As against this, the learned counsel appearing on
behalf of the prosecution supported the judgments of the courts
below and pointed out that both the courts below had, on the
basis of the evidence led before them, come to the conclusion
that this appellant was identified. It was pointed out that the c
witnesses were the bank officers and they were with the dacoits
for substantial time. The witnesses, therefore, had the
opportunity to watch the accused persons closely and as such
the identification of these accused persons in the court, at the
instance of the eye-witnesses, was also no less significant. It is D
then pointed out that the discoveries made included the bag of
witness Shri S.M. Dholey (PW-6) along with the documents
therein and as such it was clear that the said discovery
established an unassailable nexus of the accused with the crime.
It was further pointed out that even the vehicles which were used E
for committing the crime were seized and identified by the
witnesses. Lastly it was contended that since both the courts
below had concurrently found the accused guilty on the basis of
appreciation of evidence and since no significant error was
pointed out, this Court should not interfere in its jurisdiction under F
Article 136 of the Constitution.
·~ ~

11. It cannot be disputed that the bank was looted in the
broad day-light by the persons who were or could be termed to
be dare-devils. When we see the evidence of Ashok Kumar
Dubey (PW-1), Branch Manager of the Dena Bank along with G
the evidence of Surendra Kumar (PW-4), Daman Singh (PW-
5), S.M. Dholey (PW-6) and Mahendra Chauhan (PW-10), all of
~ ... whom were the bank employees as also Deepak Kumar Kharte
(PW7) and Santosh (PW-11) who were the bank customers as
also Ajay Kumar Tandon (PW-21 ), Ashish Goyal (PW-22), H
378 SUPREME COURT REPORTS [2008] 5 S.C.R.

A Oeepak Sompurkar (PW-23), Suresh (P-W-24), Nathulal (PW-
25), Sangeeta Silavat (PW-27), Govind Singh Oodiya (PW-29),
Shefali (PW-30), Prahlad Kumar Gothwal (PW-44), the common
thing in their evidence is that on that day about 5 persons entered
· the bank and committed dacoity. They were armed with
s weapons and collected all the persons in the hall, handed out
, threats and calmly collect1:!d keys from the bank staff and took
away currency notes from the bank chest. The High Court has
recorded a finding that nothing significant has come out in
respect of this aspect of the dacoity.
c 12. The evidence of Ashok Kumar Dubey (PW-1) would
be the most important as he had graphically described as to
how the dacoity took place and how he was taken out by the
two persons. The Trial as well as the Appellate Courts have
rightly relied upon this witness and accepted his evidence. This
D witness had further stated that it was almost within 10 minutes
after the dacoits left the bank that the police reached there.
Learned counsel had commented that this witness, though had
taken part in the identification parade, did not in his substantive
evidence, refer to that fact and, therefore, his identification, in
E the court, for the first time, remained without any corroboration.
There is no significant cross-examination of this witness at all
as regards the evidence and more particularly his identification
of the accused in the court. He had very specifically identified
the appellant herein. Very significantly no question has been
F put to this witness. It is not suggested as if the accused had
covered their faces. Th1are is no challenge also to the story that
the dacoits had pointed revolver at him. In the absence of any
substantial cross-examination, we do not think that the Trial Court
and the High Court were in error in accepting the evidence of
this witness particularly about his identification. The witness had
G
full opportunity in broad day-light to be with the accused and the
incident itself was so significant that it would undoubtedly make
a dent on his memory. He was after-all an educated bank officer
holding a responsible position of a Branch Manager. Since his
evidence about knowing the accused-appellant was not at all
'H
PRAVIN v. STATE OF MADHYA PRADESH 379
[V.S. SIRPURKAR, J.]
• -1 challenged, the courts below were right in accepting the A
evidence.
13. Surendra Kumar (PW-4), has corroborated the
evidence of Ashok Kumar Dubey (PW-1) and there is nothing
contradictory in his evidence. Surendra Kumar is also a bank
employee working in the same branch. He has also supported B
the version that the dacoits having snatched the bag from a lady
customer as also the bag of S.M. Dholey (PW-6). This witness
was called in the jail for identification and he claimed that he
had correctly identified the accused persons who were present
in the court. This witness had also reiterated, in his cross- c
examination, about the language which was being spoken by
the dacoits. He specifically denied that the accused persons,
who were present in the court, were shown to him earlier. His
following statement was taken as an exception by the Defence
counsel: D
"Similar photographs were shown to other persons which
were shown to me."
From this the learned counsel presumed that the
photographs of the appellant were shown to this witness. We E
do not think such an inference can be drawn from the above
mentioned sentence. This witness, in the very next paragraph,
had, however, clarified that those persons whom he had
identified were not the persons who were apprehended by the
police. He has specifically stated about the identification parade F
where cashier Chauhan, C.S. Batham, Shri Ashok Dubey and
.. JI. other persons were called. He, however, under the stress of
cross-examination admitted that the accused persons were
shown to him in the police station. Since this witness had not
identified the appellant Pravin, though the High Court relied on
G
him, we do not attach any importance to the evidence of this
witness.
,.._ ..... 14. Daman Singh (PW-5) who was also the bank
employee, graphically described the whole dacoity. He also
claimed that he had correctly identified the appellant and-the H
I

380 SUPREME COURT f~EPORTS [2008] 5 S.C.R.

'
A other accused Harish. Some insignificant omissions have been >-- ~
bro'ught out in his evidence which do not damage the evidentiary
value of his evidence at all. He also reiterated in his cross-
examination that he was not shown any photographs of the
acc'used nor was any accused shown to him in the Police Station.
B As regards the identification parade he was specifically cross-
exa,nined and he refuted all the suggestions. Learned counsel,
however, relied on one sentence to the effect that:

"Yeh Sahi hai ki jeep mein un vyaktiyo ke photo dikhaye
' gaye the, jo pakde gaye the aur unki pehchan karni thi"
c
' "The English Translation of the above sentence is: It is
' correct that in the jeep photographs of those persons were
, shown who were apprehended and their identification was
to be conducted."
D From this the learned counsel suggested that this witness
was shown the photographs and, therefore, his evidence would
be of no consequence. We cannot read this sentence in isolation.
Prior to
I
this the witness had stated in the following fashion:

:·in the way in jeep policemen told us that we will have to
E
identify the persons those who were involved in the
commission of occurrence amongst the apprehended
persons. Policemen had taken the complete file of the
case along with him to the prison. I had not seen that file.
therefore, I cannot tell as to whether it was containing the
F details of the apprehended persons or not."
When we see the earlier part of the evidence, it is clear
that this so-called admission has been inadvertently given. This
is apart from the fact that there is nothing to suggest that he was
G shown' the photographs of the accused appellant. We, therefore,
ignore,this so-called admission as has been done by Trial and
Appellate Courts. He has specifically pointed out about his
identiffoation in the jail. Very significantly this witness was
suggested that there was no identification parade held at all in
the jail. Even if we ignore the test identification parade, there is
H ..... I
PRAVIN v. STATE.OF MADHYA PRADESH 381
[VS. SIRPURKAR, J.]
• -...j
nothing suggested to him in his cross-examination to challenge A
his identification in the court. We are quite alive to the fact that
identification, for the first time in the court, is inconsequential.
However, we cannot forget the fact that in this case all these
witnesses were the bank employees who had undergone a
traumatic experience of a broad day-light dacoity. They were B
+ with the dacoits for substantial time. The dacoits had also not
covered their faces. When we see the admission closely
regarding the photographs, there is nothing to suggest that the
photographs of Pravin (the present appellant) was shown to this
witness. We, therefore, have to ignore the so-called admission,
He also does not state as to how many photographs were
c
shown to him and whether he had identified those accused
persons whose photographs were shown to him. It may be that
some photographs may have been shown regarding some
arrested persons but that by itself does not affect his evidence
D
particularly when it is not put to him specifically that he had seen
the photographs of this appellant and his identification was on
the basis of those photographs. The Trial Court as well as the
High Court have relied on this witness and we do not find
anything wrong, more particularly because he has stoutly denied
the suggestions regarding the accused persons being shown E
to him earlier when they were in the custody.

15. The other witness on whose evidence the reliance has
been placed by the Trial Court as well as the High Court is Shri
S.M. Dholey (PW-6) and Mahendra Chauhan (PW-10). Shri F
Dholey (PW-6) reiterated about the dacoity and claimed that a
~ j.
pistol was brandished on him by one of the accused persons.
He thereafter gave a graphic description as to what transpired.
He then asserted that when the dacoits fell short of the bags to
carry the looted booty, they took his bag also. He described his
G
bag to be black coloured bag made of parachute choth in which
his driving licence, one pyramid card, statement about Dena
- ~
Bank Navlakha and documents regarding the attachment from
the Nazul Tehsildar Shri Rajnish Srivastava's court. It also had
the insurance policy of his vehicle, one and a half dozens of
H
I

382 SUPREME COURT REPORTS [2008] 5 S.C.R.

A perls, etc. His evidence was of no consequence as he has
specifically stated that the present appellant was not amongst
1

the five dacoits. However, one of them resembled accused
Harjsh. In his cross-examination by the prosecution this witness,
however, identified his bag. He also admitted that he had
B iderltified his bag when it was put for test identification. He also
reite;rated that he was using that bag for the last 7 to 8 years.
We would return to this evidence a little later.

16. Last of the identifying witness is Mahedra Chauhan
(PW-10). He first asserted that he knows the two accused
C persons present in the court. He thereafter gave a graphic
desdription of tl1e dacoity. He also stated about the bag being
brought from a customer and the bag of the staff having been
taken by the dacoits and the said bags being filled with the
currency notes. He also stated about Daman Singh (PW-5)
D givin~ the keys. Lastly he asserted that in the test identification
parade about 10 persons were present and out of whom he
identified Harish and Pravin. He, however, admitted that he had
wrongly identified Pravin as per Exhibit P-22. We would,
therefore, chose to ignore his evidence since he had wrongly
E identiped the appellant in the identification parade.
17.
I
The other evidence is that of Shiv Sagar (PW-14). He
was the witness on the arrest of the appellant. He reiterates that
in his presence Pravin spoke about the jeep, the currency notes
and the slips attached to the currency bundles. The witness
F assert's that the accused had agreed to show the jeep which
was b\:!hind the Chappan Dukan complex. He then reiterates
that the police seized the jeep, the bundle of notes and the slips
on th~ bundles of notes. He proved his signatures on
Memotandum (Exhibit P-23) and the subsequent panchanama
G (Exhi8it P-24). He asserted that the police had seized
Rs.40,9001- at the instance of Pravin Sharma but from where,
he did not know. He also spoke about the seizure of .12 bore
pistol and a black bag. He, accepted his signatures on Exhibit
P-21, P-17, P-18 and P-19. The Public Prosecutor was
H permitted to put the questions in the nature of cross-examination
PRAVIN v. STATE OF MADHYA PRADESH 383
[V.S. SIRPURKAR, J.]
... --I
wherein he had accepted that Pravin Sharma had spoken about A
the Ambassador Car MP-9W-552. In the cross-examination by
the accused, he rejected the suggestion that the Panchanama
were already written on which he was asked to put his
signatures.
18. The other relevant witnesses is Raj Narain Tandon (PW- B
• 21) who deposed about the dacoity but did not identify the
appellant. Similar is the case of Ashish Goyal (PW-22). He had
gone to the bank along with his friend on that day. However, he
also refused to identify the accused. The next witness is Deepak
Sompurkar (PW-23) who was a clerk in the bank. His evidence c
is of no consequence as he has not identified the appellant.
Similar is the story of Suresh, son of Motilal (PW-24) and
Nathulal, son of Kaluram (PW-25). Arvind Kumar (PW-26) has
also refused to identify the accused. Again the evidence of

.. Sangeeta Silawat (PW-27) is also of no use since she has also
not identified the accused. She has, however, reiterated that
D

the dacoits took the bags from the customers and the staff. The
evidence of Govind Singh Dodiya (PW-29) is also of no
consequence as he has refused to identify the accused even in
· the court. Shefali (PW-30) is a child witness. At that time her E
age was 13 years. Though she has spoken about the dacoity
and the other details regarding the dacoity but nothing against
the appellant. Manish Chaturvedi (PW-33) who was the landlord
of appellant Pravin was also examined. The other witnesses
like Ajay Lashkari (PW-34), Ramu Yadav (PW-35), Deepak Jain
.. ~
(PW-36), Alok Namdev (PW-37), Atul Karamsingh Parmar (PW-
38) would be of no consequence since all these witnesses have
F

not identified the appellant at all. The only other witness is Sum it
Sankala (PW-45) who is an auto dealer and who spoke about
the purchase of a vehicle by two persons. He reiterated that the
G
purchase was made by one Pravin Sharma and one other
person. He reiterated that Pravin Sharma purchased the vehicle
- -<( MP-09-W-5521 whose registered owner was Usmanbhai. The
other witnesses like Gurdial Singh (PW-46), Jai Prakash Yadav
(PW-47) are hostile witnesses. Even the evidence of Narmada
H
I 384 SUPREME COURT REPORTS [2008] 5 S.C.R.

A Bai (PW-51) is of no use to the prosecution.
19. The most significant evidence is that of Baldev Singh
.Thakur (PW-52) who was the Investigating Officer. He deposed
,about the arrest of accused Pravin on 26.9.2003. He then
,contended that in his presence Pravin Sharma had disclosed
8 that out of Rs.14 lakhs, Rs.40 ,000/- and one .12 bore Katta was
'
hidden
I
by him in an iron box. He also disclosed the place where
the concerned jeep was parked. He thus proved Exhibit P-23.
I
Accordingly he reiterated that he had taken Pravin Kumar
Sharma to his residence at 32/3, Pardesipura where he
C recovered articles 1 to 18. He also deposed about the seizure
of a jeep. He also deposed about Exhibit P-20 which was a
t~mporary residence of one accused Annu @ Anand. He
claimed that from that residence which consisted of only one
rbom, he seized 38 slips and the other articles like rubber rings,
D plastic strings, etc. He was cross-examined in detail on the
discoveries and more particularly on Exhibits P-23 and P-24
aod a suggestion was given to him specifically that Pravin, the
appellant had not discovered anything. He admitted in his cross-
e~amination that in Exhibit P·-23 memorandum it is not written
E a~ to from which place accused Pravin got the pistol and the
amount. That would be of no consequence since there is no
I
cross-examination on the factum of recovery of gun.
'

, 20. The other officer who investigated the case is lrfan (PW-
53) who had examined the said pistol. Lastly the prosecution
F ex11mined Hukum Singh Yadav (PW-54). His evidence is not of
mu,ch significance in so far as the present accused is concerned.
The last witness is Nayab Tehsildar Chand Mohd. Khan (PW-
~ -
55), who held the test identification parade. He reiterated that
Su~endra Kumar (PW-4) had wrongly ide:itified the accused
G whi'.le even Mahendra Chauhan (PW-10) had not correctly
identified the accused. He, however, reiterated that Daman
Sin~h (PW-5) had correctly identified both the accused. He also
reiterated that Ashok Kumar Dubey (PW-1) had correctly
~ --
identified the accused. In his cross examination it came out that
H the other persons who were asked to stand for the identification
PRAVIN v. STATE OF MADHYA PRADESH 385
[V.S. SIRPURKAR, J.)
~-~ along with accused persons, nobody was 27 years old. He also A
admitted that he had not mentioned in the Panchanama that the
persons who stood for identification had to put on the blankets,
though he asserted that the said persons had covered their
whole body excepting their faces with the blankets. It is on the
basis of the above said evidence that the accused-appellant B
came to be convicted.
~
21. We have deliberately taken stock of the whole evidence
particularly because it was very vehemently asserted by the
learned counsel for the Defence that there was no proper
appreciation of evidence either by the Trial Court or by the High c
Court. We do not think that such a sweeping statement can be
made about the judgments of the High Court and the Trial Court.
We have considered the judgments very carefully and find that
the High Court as well as the Trial Court have gone into the
intricacies of the evidence. We are, therefore, not impressed at D
'( all by this contention on the part of the Defence.
22. The main stay of the Defence was that the investigation
was not fair in this case inasmuch as the police had shown the
accused persons to the identifying witnesses. We have already

- given our reasons as to why we would be prepared to accept E
the evidence of Ashok Kumar Dubey (PW-1 ). It is true that in his
substantive evidence he did not speak about his identifying the
accused appellant in the identification parade but we cannot
forget the fact that there is a clear cut evidence of the Magistrate

.. ,. who conducted the Parade confirming such identification. There F
is practically no cross-examination of this witness. We are
particularly impressed by the recovery of Rs.40,000/- from the
possession of the accused-appellant which recovery has been
accepted by the Trial and the Appellate Courts. The recovery of
the slips as also of the gun which was brandished against the G
witness is also no less significant. There is no explanation given
by the accused as to how a huge sum of Rs.40,000/- and the
- ~ Dena Bank slips and the other bank documents could be
recovered from him.
H
386 SUPREME COURT REPORTS [2008] 5 S.C.R.

A 23. It was feebly argued before us that there was delay in
holding the identification parade. In the peculiar facts and
circumstances of this case we do not think this delay was of any
significance. We say this as the other accused persons are still
at large and, therefore, test identification parade could not have
B been conducted in respect of only some of the accused. Again
the question of delay was never raised by way of cross-
examination and no explanation was called for from the.
investigating officer. Had the question been asked, the witness
, would have answered the same. Similar view has been taken
1

C by this Court in Pramod Manda! v. State of Bihar [(2004) 13 <

SCC 150] where the Court had found that there is no fixed rule
as regards the period within which the test identification parade
must be held. In this case this Court observed that:
"If there is any delay, unless the reasons for the delay are
D put by way of questions in the cross-examination to the
investigating officer, the so-called delay was of no
consequences."
This Court in Paragraphs 23 specifically held that:

E "Where the witnesses have ample opportunity to watch
the dacoits and their physical features, etc., their evidence
of the identification is strengthened."
-
Therefore, if there was any delay in holding the identification
parade, it is insignificant according to us in the peculiar facts of
F the present case.
24. In Bharat Singh v. State of U.P. [(1973) 3 SCC 896]
a Three Judge Bench of this Court had specifically observed in
~ -
para 6:
G "Although it is desirable to hold identification parade at
the earliest opportunity, where there is a delay of three
months in holding the identification parade, it is a duty of
the accused to cross-examine the police officer who 7" -
conducted the investigation and the Magistrate who held
H the parade if the accused wishes to take advantage out
PRAVIN v. STATE OF MADHYA PRADESH 387
[VS. SIRPURKAR, J]
~~
of such undue delay." A
We respectfully follow the above decision.
25. In State of Rajhasthan v. Sukhpal Singh & Ors.
[(1983) 1 sec 393] this court ignored the wrong identification
particularly holding that: B
"Since the part of the loot as well as the weapons used in
the dacoity were recovered and since the testimony of the
bank employees were found reliable, they being
independent witnesses, some irregularities in the
identification parade were liable to be ignored. c
This was also a case of dacoity on the bank and the bank
witnesses were disbelieved. This Court observed:
"Witnesses who had no axe to grind and had no personal
motive to implicate the accused on a false charge, have D
y been disbelieved on feeble considerations. And the
recovery of incriminating articles has been by-passed and
disbelieved by characterizing it as unnatural and incredible.
Different crimes have different patterns and the offenders

- improvise their strategy according to the exigencies of E
the occasion. "
This Court also observed similarly about the seizure of
Ambassador Car, the chits found with the bundles of currency
bearing the name of the bank and the box containing certain

.. ,.. documents belonging to the bank. Very significantly the situation F
is identical as in the present case where also the defence had
taken the theory of planting after the arrest of the dacoits as in
the present case. We wonder as to how and wherefrom the
police would bring a huge sum of Rs.40,000/- for being planted.
It is for this reason that we have chosen to accept the evidence G
of Ashok Kumar Dubay (PW-1 ), Surendra Kumar (PW-4) and
Daman Singh (PW-5).
- '"I
26. We cannot again forget that the stolen property was
recovered from the possession of the appellant. We would,
H
388 SUPREME COURT REPORTS [2008] 5 S.C.R

A therefore, be justified in using the presumption raised by Section
114 of the Evidence Act as was done in the case of Ronny v.
State of Maharashtra [(1998) 3 SCC 625].
27. There is also supporting and corroborating evidence
of the recovery of the other materials like the bag of S.M. Dholey
B (PW-6) which was recovered during the investigation. This
discovery of the bag is also extremely significant because there
was no reason for this bag which contained the private
documents of Shri Dholey to be recovered from the accused.
That also lends credence to the fairness of the investigation by
C the police. It will not be possible for us, in our jurisdiction under
Article 136 of the Constitution, to re-appreciate the evidence
and we will have to only see as to whether Trial Curt and the
Appellate Court were correct in reaching the conclusions that
they have recorded. We again reiterate that the identification in
D the peculiar facts of this case by Ashok Kumar Dubey and other
y
witnesses would be acceptable inspite of the so-called defects
shown by the Defence in holding the identification. Considering
the overall circumstances in the peculiar facts and cirwmstances
of this case we hold the appellant guilty of committing the offence
E of dacoity.
28. There is also no explanation about the gun as well as
the bullets which were examined by lrfan (PW-53). The gun was
-
obviously an unlicenced pistol and, in our opinion, it was
obviously used in contravention of Section 5 of the Arms Act.
F The conviction of the accused-appellant. under Sections 25 and
27 of the Arms Act was also correctly recorded by the courts ~ •
below.
29. In the above circumstances we do not find any merits
G in this appeal and the same is accordingly dismissed.
B.B.B. Appeal dismissed.