RAM BABUversusSTATE OF U.P.

                         [2010] 4 S.C.R. 771


   ...           .   '   ,
                              RAM BABU
                                   v.
                                                               A

                      STATE OF U.P.
            (Criminal Appeal No. 475 of 2008)
                             APRIL 19, 2010
                                                               B
         [P. SATHASIVAM AND R.M. LODHA, JJ.]

     Evidence Act, 1872 - s. 9 - Test identification parade -
Relevance of - Held: Identification parade belongs to
investigation stage - Its purpose is to test and strengthen C
trustworthiness of the substantive evidence of a witness in
court - Evidence with regard to test identification parade may
be used by court for the purpose of corroboration, if adequate
precautions are ensured - On facts, accused committed
offence of dacoity - Conviction u/s. 395 /PC and sentence of D
five years rigorous imprisonment by courts below, on basis
of identification does not call for interference - Identification
of accused established by substantive evidence duly
corroborated by test identification parade - Test identification
parade does not suffer from any undue and unexplained E
delay - Grounds on which two accused were given benefit of
doubt does not affect the test identification parade or
credibility of evidence of prosecution witnesses in the court.:..
Penal Code, 1860 - s. 395.

    It is alleged that the appellants and others armed with    F
weapons committed dacoity in a temple and caused
injuries to two sadhus. PW-1, PW-2, PW-3 and PW-9-
inmates of the temple along with other sadhus were
present at the time of the incident. PW 1-mahant lodged
an FIR. The investigating officer arrested the accused         G
persons on different date!!· Thereafter, the test
identification parade was held under the supervision of
PW-14-magistrate. Three prosecution witnesses were
examined to prove the arrest of the accused. A-1, A-2, A-
                             771                               H
    772      SUPREME COURT REPORTS                [2010) 4 S.C.R.

A 4 and A-5 were convicted for the offence u/s. 395 IPC and
  sentenced to five years rigorous imprisonment. A-3 and
  A-6 were acquitted. Hence the present appeal.

          Dismissing the appeals, the Court
                                              l
B      HELD: 1. As per s. 9 of the Evidence Act, 1872, facts
  which establish the identity of an accused are relevant.
  Identification parade belongs to investigation stage and
  if adequate precautions are ensured, the evidence with
  regard to test identification parade may be used by the
C court for the purpose of corroboration. The purpose of
  test identification parade is to test and strengthen
  trustworthiness of the substantive evidence of a witness
  in court. It is for this reason that test identification parade
  is held under the supervision of a magistrate to eliminate
D any suspicion or unfairness and to reduce the chances
  of testimonial error as magistrate is expected to take all
  possible precautions. [Para 10] [778-F-H; 779-A]

         2.1. In the instant case, PW-14 supervised the test
E   identification parade held in District Jail, Mathura on June
    4, 1980. He proved identification memos in his deposition.
    He deposed that all possible precautions were taken in
    conduct of the test identification parade held on that date.
    As a matter of fact, there is no challenge to his testimony.
    Regarding the substantive evidence, all the three
F   appellants-A-2, A-4 and A-5 were identified by PW-3 and
    PW-9 in the Court. A-2 and A-4 were also identified by PW-
    2 in the Court. Being inmates, their presence in the temple
    at the time of incident was natural. All of them were having
    their food in the chowk at that time. There was sufficient
G   light for enabling them to identify the dacoits is also
    established. Besides bulbs and tube lights, according to
    these witnesses, the light was also available from two gas
    petromaxes. Pertinently, the appellants did not contest
    the finding recorded by the trial court as well as the High
H   Court in this regard. [Para 11] [779-D-H]
             RAM BABU v. STATE OF U.P.                     773

     2.2. The prosecution also examined large number of            A
witnesses to adduce link evidence to the effect that right
from the arrest of the accused persons till being lodged
in jail, the faces of the suspects were kept veiled and
nowhere was the opportunity to see them. The trial court
gave benefit of doubt to A-3 as the prosecution failed to          B
furnish any explanation as to why he could not be
confined in jail or presented before a Magistrate on the
day of arrest itself, i.e. April 30, 1980. The trial court found
that, although A-3 was arrested on April 30, 1980 at about
6.15 a.m. but he was produced before the Court on the              c
next day despite the fact that Magistrate was available
hardly 8 kilometers away. As regards A-6, the trial court
was not convinced about the date, time and place of his
arrest. The trial court held that from the evidence on
record, possibility of his arrest at earlier point of time and     0
at some other place cannot be excluded. The grounds on
which A-3 and A-6 were given benefit of doubt does not,
in any manner, affect the credibility of the evidence of
PW-2, PW-3 and PW-9 in the Court or the test
identification parade insofar as A-2, A-4 and A-5 are
                                                                   E
concerned. These witnesses have identified the
appellants not only in test identification parade but also
in the Court. The identification of the appellants, thus, is
established by substantive evidence duly corroborated
by test identification parade. [Para 11] [779-E-H; 780-A-C]
                                                                   F
     2.3. It cannot be said that as the test identification
parade was held belatedly and delay has not been
explained sufficiently, the identification of the appellants
is rendered doubtful. It is true that A-2 was arrested on
April 30, 1980; A-5 on May 6, 1980; and A-4 on May 29,             G
1980 while the test identification parade was held on June
4, 1980 but the explanation that has been put forth by the
prosecution for this delay is that the suspects (9 in
number) including the appellants were arrested on
different dates and the last of such arrest being of A-4 on        H
    774    SUPREME COURT REPORTS             [201 OJ 4 S.C.R.


A May 29, 1980, the test identification parade was held only
  thereafter. In the facts and circumstances of the case,
  explanation is acceptable and it cannot be said that test
  identification parade held on June 4, 1980 suffers from
  any undue and unexplained delay. [Para 12] [780-0-F]
B
       2.4. Ordinarily, this Court does not enter into an
  elaborate examination of the evidence in a case where
  the High Court has concurred with the findings of fact
  recorded by the trial court. There is nothing exceptional
  in the instant case that may justify departure from this
C rule. However, on considering the evidence referred to by
  the appellants, the conclusion recorded by the trial court
  and confirmed by the High Court does not suffer from
  any factual or legal infirmity, or was one which could not
  reasonably be arrived at by those Courts. [Para 13] [780-
D G-H; 781-A]

       2.5. It is not impressing that the incident is of 1980
  and the appellants have already undergone half the
  sentence and their sentence be reduced to already
E undergone. Dacoity is a daredevil act. Most of the time, a
  serious crime like dacoity is· committed by unknown
  persons and it is very difficult to trace them and still
  difficult to secure their conviction. As a matter of fact,
  looking to the nature of crime and the manner in which
F the appellants looted temple properties, graver
  punishment was warranted. In any case, sentence of five
  years rigorous imprisonment awarded by the trial court
  and confirmed in appeal by the High Court for the offence
  u/s. 395 IPC calls for no interference. [Para 14] [781-B-D]
G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 475 of 2008.
       From the Judgment & Order dated 14.9.2007 of the High
  Court of Judicature at Allahabad in Criminal Appeal No. 512
H of 1981.
            RAM BABU v. STATE OF U.P.                       775


                             Will-I                                 A
Crl. A.No. 550 of 2008

    Ashok Kumar·Sharma, Avinash Jain for the Appellant.

   Pramod Swarup, Ravinder Kumar Verma, Alaka Singha,               B
Ameet Singh, Anuvrat Sharma for the Respondent.

    The Judgment of the Court was delivered by

     R.M .. LODHA, J. 1. These two appeals by special leave
arise out of trial of the appellants and three others, namely,      C
Saudan Singh (A-3), Sher Singh (A-6) and Mangal Singh (A-
1) for the commission of offence punishable under Section 395
of the Indian Penal Code (for short, 'IPC'). They were alleged
to· have committed dacoity on April 7, 1980 at or about 9.30
p.m. in a temple - Totadhari Math, Gyan Gudari, Vrindavan,          D
District Mathura. The appellants and A-1 were convicted by the
3rd Additional Sessions Judge, Mathura under Section 395 IPC
and sentenced to undergo rigorous imprisonment for a term of
five years. A-3 and A-6 were acquitted. The appellants and A-
1 challenged their conviction by a common appeal to Allahabad       E
High Court. The High Court vide its judgment dated September
14, 2007 dismissed the appeal. It is from this judgment that one
appeal has been preferred by Ram Babu (A-5) and the other
by Man Singh @ Mani (A-4) and Jagdish Upadhyay (A-2). We
are informed that A-1 had died during the pendency of appeal        F
before High Court.

     2. Vrindavan is a holy and revered place having large
number of public religious Maths. Totadhari Math (hereinafter
referred to as 'temple') is situate in Mohalla Gyan Gudari. Many
silver idols adorn this temple. Ornaments and silver utensils for   G
shringar and puja of the deities were used to be kept in the
almirah in his room by the Mahant - Vishwast Sen Acharya.
The disciples, students and teacher resided in the temple
premises. On April 7, 1980 at about 9.30 p.m., the dacoits (15/
                                                                    H
    776     SUPREME COURT REPORTS                 [2010) 4 S.C.R.


A 16 in number) armed with pistols, guns, knives and lathis
  entered the temple premises. At that time, in the courtyard
  (Chowk), Ram Ajor Pathak (PW-1), Jagdish Prasad (PW-2),
  Sudarshan Pra!?ad (PW-3), Udhav Prasad (PW-9), Brij~sh
  Kumar, Kaladhar Dwivedi, Narotam Kumar and three sadhus,
B namely, Damodar, Ram Prapan and Madhav Prasad were
  taking food (Prasad). The dacoits asked them to hand over the
  keys of the temple and the room where silver idols, ornaments
  and silver utensils etc. were kept but they feigned ignorance
  as the Mahant was not in the temple. The dacoits then asked
c them to stay put in a small room. PW-9 escaped from room
  where he was confined and managed to reach the roof of the
  temple. The dacoits broke open the room and almirah and
  looted the ornaments, silver utensils, cash and other articles like
  clocks, clothes, etc. They also looted idols made of Astadhatu
  and silver. After looting the properties, the dacoits ran away
0
  towards river Yamuna. Before leaving, the dacoits also caused
  injuries to Madhav Das and Damodar Das by the butt of the
  gun. As soon as Mahant reached the temple, PW-1 went to the
  police station and lodged the first information report at about
  10.15 p.m. in the same night against unknown persons.
E
        3. Kashi Ram - a Sub Inspector commenced investigation ·
  immediately thereafter. He visited the place of occurrence and
  prepared site plan. fvladhav Das and Damodar Das who were
  injured by the dacoits were medically examined on April 8,
F 1980 at the Government Hospital, Vrindavan. During the course
  of investigation, the Investigating Officer arrested number of
  dacoits. On April 29, 1980, A-1 was arrested at 4.30 p.m. On
  April 30, 1980, A-3 and A-2 were arrested at 6.15 a.m. and
  9.00 a.m. respectively. On May 1, 1980, A-6 was arrested at
G 12.30 p.m. while on May 6, 1980, A-5 was arrested at 2.00
  p.m. On May 29, 1980, accused A-4 was arrested at 5.30 p.m.
  Besides them, three more persons namely, Biro, Chandar and
  Sundar were also arrested by the Investigating Officer. On June
  4, 1980, the test identification parade was held under the
H supervision of LP. Gupta (PW-14). Based on the result of the
   RAM BABU v. STATE OF U.P. [R.M. LODHA, J.]                777


identification and the statements recorded under Section 161         A
of Criminal Procedure Code, a charge-sheet was filed against
7 persons including the present appellants. Biro (A-7) was
discharged by the trial judge on August 30, 1980.

     4. The prosecution examined as many as 35 witnesses.            8
PW-1, PW-2, PW-3 and PW-9 are inmates of the temple and
were present at the time of incident. PW-14 is the Special
Executive Magistrate under whose supervision test
identification parade was conducted. Munna Prasad Srivast
(PW-15), Ramesh Chandra (PW-18) and Maharaj Singh (PW~               C
19) were examined to prove the arrest of the accused persons.
Jaipal Singh (PW-10) is the Investigating Officer who conducted
investigation after transfer of Sub-Inspector Kashi Ram. Quite
a few police constables were examined by way of link evidence
to prove that right from the arrest till being lodged In jail, the
faces of the suspects were kept veiled and nowhere was the           D
opportunity to see them.

    5. The statements of the accused were recorded under
Section 313 of Criminal Procedure Code. The accused also
produced four witnesses Jagdish Swarup (DW-1 ), Tejbir Singh         E
Tyagi (DW-2), Purushottam (DW-3) and V.D. Gupta (DW-4) in
support of their defence that their identity did not remain secret
and they have been falsely implicated.

     6. The trial court held that guilt of A:-1, A-2, A-4 and A-5
for the offence under Section 395 IPC was proved beyond              F
reasonable doubt. The benefit of doubt was i:iiven to A-3 and
A-6.

     7. Mr. Ashok Kumar Sharma, learned counsel for the
appellants vehemently contended that the evidence against the        G
appellants and A-3 and A-6 who have been acquitted and A-7
who was discharged is identical and if based on that evidence,
the identification of A-3 and A-6 was held not established, the
said evidence is liable to be rejected in respect of the
appellants as well. He would also contend that the test              H
    778       SUPREME COURT REPORTS                     [2010) 4 S.C.R.


A identification parade was held belatedly and delay having not
  been explained sufficiently, the identification was doubtful and
  conviction improper. Lastly, learned counsel submitted that the
  incident took place 30 years back and half the sentence has
  already been undergone by the appellants and, therefore,
B interest of justice would be sub-served if the sentence awarded
  to the appellants is reduced to already undergone.

       8. Mr. Pramod Swarup, learned senior counsel for the
  State supported the judgment of the High Court and submitted
C that the conviction of the appellants based on identification
  does not suffer from any legal infirmity warranting interference
  by this Court.

          9. Section 9 of the Evidence Act, 1872 reads:

D         "S. 9. Facts necessary to explain or introduce relevant
          facts.-Facts necessary to explain or introduce a fact in
          issue or relevant fact, or which support or rebut an
          inference suggested by a fact in issue or relevant fact, or
          which establish the identity of any thing or person whose
          identity is relevant, or fix the time or place at which any fact
E
          in issue or relevant fact happened, or which show the
          relation of parties by whom any such fact was transacted,
          are relevant in so far as they are necessary for that
          purpose."

F      10. As per Section 9 of the Evidence Act, facts which
  establish the identity of an accused are relevant. Identification
  parade belongs to investigation stage and if adequate
  precautions are ensured, the evidence with regard to test
  identification parade may be used by the court for the purpose
G of corroboration. The purpose of test identification parade is
  to test and strengthen trustworthiness of the substantive
  evidence of a witness in court. It is for this reason that test
  identification parade is held under the ,supervision of a
  magistrate to eliminate any suspicion or unfairness and to
H
   RAM BABU v. STATE OF U.P. [R.M. LODHA, J.]               779


reduce the chances of testimonial error as magistrate is            A
expected to take all possible precautions.

      11. In the present case, PW-14 supervised the test
identification parade held in District Jail, Mathura on June 4,
1980. He proved identification memos in his deposition. He          B
deposed that all possible precautions were taken in conduct
of the test identification parade held on that date. As a matter
of fact, there is no challenge to his testimony. Insofar as
substantive evidence is concerned, all the three appellants (A-
2, A-4 and A-5) have been identified by PW-3 and PW-9 in the
Court. A-2 and A-4 were also identified by PW-2 in the Court.       C
Being inmates, their presence in the temple at the time of
incident was natural. All of them were having their food in the
chowk at that time. That there was sufficient light for enabling
them to identify the dacoits is also established. Besides bulbs
and tube lights, according to these witnesses, the light was also   D
available from two gas petromaxes. Pertinently, learned
counsel for the appellants did not contest the finding recorded
by the trial court as well as the High Court in this regard. The
prosecution also examined large number of witnesses to
adduce link evidence to the effect that right from-the arrest of    E
the accused persons till being lodged in jail, the faces of the
suspects were kept veiled and nowhere was the opportunity to
see them. The learned counsel for the appellants, however,
contended that the evidence against the appellants and A-3,
A-6 and A-7 was identical and based on that evidence A-3 and        F
A-6 were acquitted and A-7 was discharged and on the same
evidence, appellants could not have been legally convicted.
Insofar as A-3 is concerned, the trial court gave him benefit of
doubt as the prosecution failed to furnish any explanation as
to why he could not be confined in jail or presented before a       G
Magistrate on the day of arrest itself, i.e. April 30, 1980. The
trial court found that, although A-3 was arrested on April 30,
 1980 at about 6.15 a.m. but he was produced before the Court
 on the next day despite the fact that Magistrate was available
 hardly 8 kilometers away. As regards A-6, the trial court was      H
    780     SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A not convinced about the date, time and place of his arrest. The
  trial court held that from the evidence on record, possibility of
  his arrest at earlier point of time and at some other place cannot
  be excluded. We are afraid the grounds on which A-3 and A-6
  were given benefit of doubt do not, in any manner, affect the
B credibility of the evidence of PW-2, PW-3 and PW-9 in the
  Court or the test identification parade insofar as A-2, A-4 and
  A-5 are concerned. These witnesses have identified the
  appellants not only in test identification parade but also in the
  Court. The identification of the appellants, thus, is established
C by substantive evidence duly corroborated by test identification
  parade.

        12. We may also consider the contention of the learned
  counsel for the appellants that as the test identification parade
  was held belatedly and delay has not been explained sufficiently,
D the identification of the appellants is rendered doubtful. It is true
  that A-2 was arrested on April 30, 1980; A-5 on May 6, 1980;
  and A-4 on May 29, 1980 while the test identification parade
  was held on June 4, 1980 but the explanation that has been
  put forth by the prosecution for this delay is that the suspects
E (9 in number) including the appellants were arrested on different
  dates and the last of such arrest being of A-4 on May 29, 1980,
  the test identification parade was held only thereafter. In our
  view, in the facts and circumstances of the case explanation is
  acceptable and it cannot be said that test identification parade
F held on June 4, 1980 suffers from any undue and unexplained
  delay.

       13. Learned counsel for the appellants took us through the
  evidence of all the important witnesses. Ordinarily, this Court
  does not enter into an elaborate examination of the evidence
G in a case where the High Court has concurred with the findings
  of fact recorded by the trial court. There is nothing exceptional
  in the present case that may justify departure from this rule.
  However, we considered the evidence referred to by learned
  counsel for the appellants and we do not think that the
H
    RAM BABU v. STATE OF U.P. [R.M. LODHA, J.)                    781


conclusion recorded by the trial court and confirmed by the High          A
Colirt ·suffers from any factual or legal infirmity, or was one which
could not reasonably be arrived at by those Courts.

      14. It was submitted by learned counsel for the appellants
that the incident is of 1980 and the appellants have already              B
undergone half the sentence and their sentence be reduced to
already undergone. We are not impressed by this submission.
Dacoity is a daredevil act. Most of the time, a serious crime
like dacoity is committed by unknown persons and it is very
difficult to trace them and still difficult to secure their conviction.   C
As a matter of fact, looking to the nature of c~Jme 5rnd the
manner in which the appellants looted temple properties, graver
punishment was warranted. In any case, sentence of five years
rigorous imprisonment awarded by the trial court and confirmed
in appeal by the High Court for the offence under Section 395
IPC calls for no interference.                                            D

       15. Both appeals fail and are dismissed.
N.J.                                           Appeals dismissed.