Brij Mohan and Others v State of Rajasthan
Supreme Court of India

16 December 1993
Cr.As. Nos. 245-246 of 1991
The Judgment was delivered by: N. P. SINGH, J.
1.  The three appellants, Brij Mohan, Gulla and Barchia, were convicted under sections 396, 397, 450 and 397/149 of the Penal Code by the learned Additional Sessions Judge, who passed sentence of death under section 396 against of the appellants and various terms of imprisonment under the remaining sections. The High Court confirmed the conviction and the sentence against each of the three appellants, including the death sentence. On basis of leave granted by this Court, the appellants have questioned, the legality of their conviction and sentence.
2.  The prosecution case is that Chiranji Lal (P.W. 7) and the inmates of his family were sleeping in their house in the night between 11th and 12th October, 1983 in Village Baswa. At about 1-00 a.m., Chiranji Lal heard the ladies of his family weeping and crying. He came in his courtyard and saw two or three persons giving blows to Smt. Gora (PW 6) and Smt. Gulab (deceased). The culprits also gave blows to Chiranji Lal (PW-7). In the meantime his brother's wife Smt. Saroj (PW-8) came to help them and she was also given blows. Some of the culprits were standing outside the house. One of them fired a gun shot. Hearing the gun shot, Mool Chand (deceased) rushed to the house of Chiranji Lal (PW-7). The culprits assaulted him with Pharsies and Lathies. Panna Lal (deceased) whose house was also near the house of Chiranji Lal also rushed to the spot and he was shot dead by the persons, who were standing outside the house. Smt. Shakuntla (PW-14) was also assaulted and beaten when she tried to resist the culprits. Bheru Lal (deceased) whose house is also situated nearby came near the house of Chiranji Lal and one of the culprits shot at him causing his death of the spot. The culprits thereafter decamped with tin boxes, suitcases, containing clothes, silver and gold ornaments, utensils and currency notes.
3.  Ram Swroop (PW-1), the brother of Chiranji Lal, who had also rushed to the spot hearing the gun shots, saw six or seven persons going towards the Nallah with bags, boxes and guns in their hands. He found Mool Chand, Panna Lal, Bheru Lal, Smt. Gulab, Smt. Gora (PW-6), Chiranji Lal (PW-7), and Smt. Saroj (PW-8) lying injured. He immediately rushed to the police outpost and lodged a report (Ex. P-1) at about 2-15 a.m. The police Bandikui registered a case on the basis of the said statement. Jai Singh (PW-34) arrived at the spot and inspected the site. The injured persons were sent to the Government Hospital. Mool Chand, Panna Lal, Bheru Lal and Smt. Gulab were declared to be dead. The post-mortem examination on the dead bodies of Panna Lal and Bheru Lal who was of the opinion that the death was caused due to gun shot injuries. The post-mortem examination of Smt. Gulab and Mool Chand was conducted by Dr. P. S. Agrawal (PW-19). He noticed multiple ante-mortem injuries on the dead bodies and according to him, the cause of death was the fracture of skulls. The investigating officer found six fired 12 bore cartridges lying scattered. He also noticed foot impressions around the place of incident, on basis of which he got prepared moulds of the footprints. Smt. Shakuntla (PW-14) filed the list of looted properties. Chiranji Lal (PW-7) also gave the list of the stolen properties. The investigation continued but no clue could be found.
4.  On 15-11-1983, Shashi Kant (P.W. 16), the then Station House Officer (hereinafter referred to as the 'SHO'), Kherli, Alwar, had an encounter during the night near a hillock with some dacoits and after exchange of gun shots he arrested six persons - four men and two women. The four men, who were arrested after an encounter, were the appellants Brij Mohan, Gulla, Barchia and Nahar Singh (who died during trial). After the arrest, on search, country made pistol, some fired and live cartridges, one barrel of 12 bore gun, apart from clothes and silver ornaments were found in possession of the appellants. For that a separate case was registered and investigation proceeded. However, as the modus operandi of the dacoities committed in the instant case at Baswa and in the case pending at Police Station, Kherli, was common, the SHO, Shashi Kant (PW-16) addressed a latter (Ex. P-36) on 27-11-1983 to the SHO, Police Station, Bandikui and sent under sealed packet at the articles recovered from the accused persons at the encounter by police Kherli, Ram Kripal (PW-37), the SHO, Police Station Bandikui, who had taken up the investigation in respect of the instant case went to District Jail, Alwar, on 12-1-1984 and arrested the appellants and Nahar Singh aforesaid and brought them to Bandikui Sub-Jail on 13-1-1984. The test identification of these appellants along with Nahar Singh (deceased) was arranged on 13-1-1984 itself. The test identification was conducted by the Judicial Magistrate, Shri O. P. Gupta (P.W. 17). At the said test identification, eleven witnesses correctly identified these appellants.
5.  Consequent to information furnished by the accused persons, while they were in police custody, on 19-1-1984, some clothes, utensils and gold and silver ornaments looted in the dacoity at Baswa were recovered which had been kept hidden and concealed in the house of the appellant Barchia. The specimen moulds of the footprints of the appellants were taken, which were sent along with the footprints lifted from the place near the occurrence, for examination to the Finger Print Bureau, Jaipur. On examination, it transpired that both the footprints tallied with each other. The six empty cartridges lifted from the place of occurrence at village Baswa were found to have been fired from the pistol and barrel of the S.B.B.L. gun recovered from the appellants in the encounter on 15-11-1983. The trial Court convicted the appellants under different sections of the Penal Code referred to above and sentenced the appellants to death, as already mentioned, for offence under S. 396. The conviction and sentence of the appellants were confirmed by the High Court, which is being questioned, in the present appeals.
6.  Mr. Garg, appearing amicus curiae for the appellants, first challenged the claim made by the witnesses, that they had identified the appellants, during the occurrence as well as at the test identification. According to him, as the dacoity was committed during the night in a house, unless it is established on basis of reliable evidence that there was some source of light in which the witnesses could have identified the culprits, any claim of identification of the culprits, by the witnesses should no be accepted, especially, when in the first information report as well as in the statements recorded during the investigation, no source of light was disclosed. It cannot be disputed that in cases relating to dacoity, the identification by the witnesses is the main evidence, as such the prosecution has to satisfy that the witnesses were in a position to identify the culprits, during the commission of the dacoity. This claim is later tested at the test identification, which although not a substantive evidence but is a mode to verify the claim the witnesses before they identify the accused persons in Court. Any such claim that the witnesses identified the culprits during the commission of the crime has to be examined by the Court with reference to the circumstance of a particular case. The Court has to be satisfied that there was not only ample opportunity for the witnesses to identify the culprits but they had identified them with the help of some light either in the house of outside.
7.  In the present case, all the witnesses have asserted that electric light was there in the house, as well as on the road, when the dacoity was committed. The Trial Court as well as the High Court had dealt with this aspect of the matter in detail. The factum of there being electric connection in the house and on the road was not challenged on behalf of the appellants before the Trial Court. Only a suggestion was given that during the commission of the dacoity there was no supply of the electricity. Apart from a suggestion, there is nothing on the record on the basis of which it can be held that although the village had electric connections and electric light was in the house, but just at the time of commission of the dacoity there was a power failure. The claim of the witnesses regarding identification of the culprits in the electric light cannot be rejected merely on the ground that this fact was not mentioned in the first information report or in the statements made during investigation. It appears that as the village had electricity in the houses and on roads, the informant as well as the witnesses proceeded on the assumption that they were not required to disclose the means of identification by them because that was not at all a relevant fact, necessary to be mentioned, in the first information report or in their statements before the police. In village where there is no electricity and a claim is made regarding identification of the culprits during commission of dacoity, witnesses are expected to disclose the source of light by which they have identified the culprits during the night.
8.  It was then urged that the SHO, Kherli, Alwar, who arrested these appellants in an encounter on 15-11-1983, got them falsely implicated even in the present case, by writing the aforesaid letter dated 27-11-1983 to SHO, Police Station Bandikui. It was also suggested that before the test identification was held on 13-1-1984, the appellants were shown to the witnesses. Reference was made to suggestions given to the witnesses that they were made to identify the appellants, before they were put up for the test identification. This has been always a ground in dacoity cases to challenge the identification by witnesses at a test identification by claiming that the police officer had shown the suspects to the witnesses before they were put up for test identification. Before accepting the identification by the witnesses at a test identification, the Court has to first consider the objection to such identification.Although this task is not very easy, but the Court has to the examine on the basis of the materials on record as to whether actually the suspects, who has already been shown to the witnesses.
9. In the instant case, it is an admitted position that SHO, Police Station, Bandikui, went to District jail, Alwar, on 12-1-1984 and took custody of the appellants in connection with the present case and brought them to Bandikui and lodged them in Sub-Jail on 13-1-1984. Same day, the test identification was held in the presence of the Judicial Magistrate, Shri O. P. Gupta (PW-17), in which as many as 11 persons from Baswa participated and they correctly identified the appellants, although they had been mixed up with 11 others at the time of the test identification. If the SHO (PW-37) wanted to first get the appellants identified by the witnesses, in normal course, it was not expected that he would have held the test identification on 13-1-1984 itself, the day the appellants were brought to Bandikui. There was no difficulty in fixing the test identification on any later date and in the meantime, the appellants could have been shown witness. But the promptness with which the test identification was held, after the appellants were taken into custody in connection, with the present case is a circumstance, which satisfies the conscious of the Court about the genuineness and fairness of the test identification. When the appellants were produced before the Magistrate on 13-1-1984 for being remanded to custody, it was specifically mentioned in order sheet that they had been produced Baparda i.e. their faces had been concealed. This precaution was necessary, so that the witnesses may not see the appellants, while being produced for remand before the Magistrate.
10.  It was pointed out, on behalf of the appellants, that the aforesaid test identification was held virtually after three months of the occurrence and as such it was not safe to trust such identification. It is true that with lapse of time, the memory of the witnesses, who have have seen the culprits at the time of the commission of the dacoity gets dimmer and dimmer, and the earliest the test identification is held, it inspires more faith about the fairness of the test identification. But no time limit can be fixed for holding a test identification, after which the investigating officer will be debarred from putting the suspects for test identification. While accepting the position that such test identifications should be held at the earliest, at the same time it cannot be ignored that it is not always within the reach of the investigating officer or up him to hold such test identification. Any test identification can be held only if some persons are arrested, who are suspected to have participated in the dacoity in question. The position will be different where in spite of such suspects being in custody, the test identification is postponed, there being no reasonable cause for the same. Once the investigating officer suspects that persons arrested are accused in connection with a particular dacoity, they should be put up for test identification at the earliest. It is imperative duty on the part of the investigating officer to put up such suspects at test identification without any delay. That gives sanctity to the test identification.
11.  So far the present case is concerned, as the appellants were put on test identification within 24 hours of their arrest in connection with the present case, the identification made by the witnesses cannot be rejected merely on the ground that it was not possible for them to identify after lapse of a period of three months. This was not an ordinary case of dacoity; for commission thereof, four persons were killed, one of them being a lady. The gruesome and callous manner, in which the dacoity was committed by the culprits must have left a deep impression on the minds of the witnesses, who had occasion to see such culprits in the electric light during the course of commission of assault, firing and removal of the articles from the house in question. This deep impression will also include the facial impression of the culprits, which in normal course must not have been erased only within a period of three months.
12.  So far the recovery of the articles on basis of the information given by the three appellants from the residence of the appellant Barchia is concerned, the investigating officer as well as the witnesses, who witnessed the recovery have fully supported the prosecution case. The Trial Court as well as the High Court have examined the different aspects relating to the said recovery and have come to the conclusion that the articles removed during the dacoity had been concealed in the different parts of the residence of the appellant Barchia and were recovered pursuant to the information given by the three appellants to the investigating officer. The only objection taken on behalf of the appellants before this Court is that it looked unnatural that stolen articles would have been kept at different places by the three appellants but within the same compounds i.e. the residence of the appellant Barchia. It is very difficult for have behaved after commission of the dacoity, in respect of disposal or concealment of the booty. According to us, there is nothing unnatural or improbable on the part of the articles in keeping their share of the stolen articles concealed in the residence of one of the appellants.
13.  In the present case, the moulds of the footprints which had been compared with the moulds prepared of the footprints of the appellants after their arrest was an important piece of evidence. Unfortunately, such moulds were not produced before the Trial Court and only the expert proved his opinion. The Trial Court accepted that circumstances, but the High Court has rejected the same on the ground that prosecution should have produced the moulds of the footprints, before the Trial Court. The same is the position in respect of the cartridges found on the spot of the occurrence. That has also been discarded by the High Court on the ground that they were not produced before the Trial Court. We have doubt about the correctness of the approach of both the courts. But, even if the two circumstance, referred to above, are not taken into consideration, the identification of the appellants by 11 witnesses, coupled with the recovery made of the stolen articles, pursuance to the information given by the appellants, prove the prosecution case beyond all reasonable doubt that these appellants along with others entered into the house of Chiranji Lal (PW-7) and while committing dacoity caused the death of Mool Chand, Panna Lal, Bheru Lal and Smt. Gulab.
14.  The facts of the case present a very tragic situation in which for removal of certain ornaments and other household articles, the appellants have taken the lives of four persons, which depicts the cruel and callous personalities of the appellants. But the question which still remains for consideration is as to whether it will be just and proper to affirm even the sentences of death passed against the three appellants, after a lapse of 10 years since the offence was committed. A Constitution Bench of this Court in the case of Bachan Singh v. State of Punjab, 1980 Indlaw SC 586:1980 Indlaw SC 586), held that the death penalty as an alternative punishment is not unreasonable and it is in public interest, but at the same time it was pointed out that legislative policy outlined in S. 354(3) was that for persons convicted for an offence, where it is open to the Court concerned to impose a sentence of death as well as imprisonment for life,
"life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
15.  Indeed, the appellants caused death of four persons and that too for greed. The question, however, it should they be awarded the extreme penalty of death ? keeping in view the facts and circumstances of the case, and particularly the accepted prosecution case that both Brij Mohan and Barchia, who are alleged to be armed with fire arms did not even enter the house to commit the dacoity and remained outside the house and caused the death of two persons outside the house, it was only the other accused persons who went inside the house differently armed, the number of injuries inflicted by them on the deceased inside the house and the weapons used in causing those injuries, while committing dacoity and not keeping or using the fire arms, which were otherwise available, it is not possible to say that it is the "rarest of the rare cases" which may warrant the imposition of the sentence of death for the occurrence which occurred more than a decade ago.
16. In our opinion, it will meet the ends of justice, keeping in view the peculiar facts and circumstances of the case, if we substitute the sentence of death with that of sentence for imprisonment for life of all the appellants while maintaining their conviction as recorded by the courts below.
17.  Accordingly, the appeals are allowed to a limited extent, that the sentence of death passed against the three appellants are substituted by life imprisonment. With this modification in sentence, the appeals are dismissed.
Appeals dismissed.


Daya Singh v State of Haryana
Supreme Court of India

20 February 2001
Criminal Appeal No. 416 of 1998
The Judgment was delivered by : M. B. Shah, J.
1. In Sessions Case No.44 of 1989, 14-accused were tried for various offences including Sections 3 and 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA Act) by the Additional Judge, Designated Court, Karnal at Ambala. The Additional Judge by his judgment and order dated 19 February 1998 convicted the appellant Daya Singh for committing the offence of murder of Gurdeep Singh and attempting to commit murder of PWs Dr. Harnam Singh and Smt. Jaswant Kaur. The appellant is also convicted under Section 302 read with Section 34 IPC for committing murder of Khushdev Singh, Gurpreet Kaur and his co-accused Gurjant Singh and sentenced to suffer imprisonment for life and to pay a fine of Rs.10000/- in default of payment of fine to undergo further RI for a period of one year. He is also convicted for the offence punishable under Section 307 read with Section 34 IPC for attempting to cause death of Ram Singh, Somnath and Hira Singh by fire- arms and is sentenced to undergo RI for a period of ten years and to pay a fine of Rs.5000/-, in default of payment of fine to undergo RI for a period of six months. In addition, he is convicted for the offence punishable under Section 5 of TADA Act for possessing one AK 47 rifle with cartridges and is sentenced to undergo RI for seven years and to pay a fine of Rs.3000/-, in default of payment of fine to undergo RI for three months. All the sentences were ordered to run concurrently. The Designated Court acquitted rest of the accused.
2. Against the order of conviction passed by the learned Judge, accused Daya Singh has preferred Criminal Appeal No.416 of 1998. In this appeal, learned senior counsel Mr. U.R. Lalit appearing for the appellant has confined his submissions mainly with regard to reliability of evidence of PW37 Jaswant Kaur and PW38 Dr. Harnam Singh qua the identification of the appellant.
3. The State has filed Criminal Appeal No.773 of 1998 against the acquittal order and also for enhancement of sentence. With regard to the appeal filed by the State, after going through the evidence on record, it is apparent that the order passed by the Additional Judge does not call for any interference. Confessional statements are found to be not voluntary and are held to be unreliable. There is no other evidence to connect the acquitted accused with the crime.
4. The incident relates to attack by the terrorists on 09 April 1988 in the house of one Dr. Harnam Singh at Kurukshetra which has resulted in loss of his son Khushdev Singh, daughter-in-law Gurpreet Kaur, Gurdeep Singh son of his brother-in-law and one assailant Gurjant Singh and injuries to other persons. At the time of hearing of this appeal, prosecution version relating to the incident of the murder of four persons at the place of incident and injuries to the witnesses is not disputed. For considering the submissions and appreciating the evidence relating to the contentions raised by the learned counsel for the parties, we would refer to the evidence of Dr. Harnam Singh, PW38 and his wife Smt. Jaswant Kaur, PW37. It is the say of Dr. Harnam Singh that he is a worker of communist party and was elected as MLA in the year 1987 from Shahabad. On 09 April 1988at about 8.15 to 8.30 p.m. when he was present in his house, one person came in his courtyard and called upon him. In the courtyard two electric bulbs were on at that time. When he came out from his room, he saw one well-built Sikh gentleman aged about 26-27 years having small beard holding a revolver in his hand. He ran towards him and caught hold of him. On hearing the noise, his wife came out of the room. She also caught hold of that Sikh from his hairs. At that time, one other person came from outside holding stengun type arm. He was having a long beard and having eyes like that of a cat. That man started firing and a pellet hit his left arm. The shots also hit abdomen of his wife. At that time his son, Khushdev Singh, daughter-in-law Gurpreet Kaur and Gurdeep Singh son of his brother-in-law who were watching TV came outside. The man who was having eyes like a cat fired shots towards them and because of the injury sustained, Gurdeep Singh fell down on the main gate. His son Khushdev Singh caught hold of that man and tried to take away the stengun. It is his further say that when Khushdev Singh was holding the person, he fired shots from his fire-arm towards Khushdev Singh and Gurpreet Kaur. When Khushdev was grappling with him, he rushed to his room to make a telephone call and informed at police station that he was attacked and shots were being fired. He has further deposed that when he went outside the room, the third miscreant who was standing on the main door fired shots towards that room. During the grappling, one blanket, one shoe, one turban, one Jutti had fallen down in the courtyard. The magazine of the stengun had also fallen down. When he came out of the room after telephonic call, the miscreants had fled and saw that Gurdeep Singh was lying dead at the entrance gate. Khushdev Singh and Gurpreet Kaur, who were dragged outside by Daya Singh and with whom they were grappling, were lying in the street on the right side of the main gate in an injured condition.
5. The terrorist who was caught and dragged out by his wife was also lying dead. Khushdev and Gurpreet were removed to the civil hospital. They succumbed to their injuries within few minutes in the hospital. Thereafter, he alongwith his wife and Hira Singh were referred to PGI Hospital. He has also deposed with regard to the investigation carried out by the police including the recovery of certain articles from the scene of offence. It is his further say that on 07 May 1988, he and his wife were taken by the police to Civil Hospital, Rajpura as it was stated that two terrorists had been shot dead and they were to be identified by them. Out of the two dead bodies, they identified one as the person who had fired shots towards him while he was standing on the main gate. With regard to the identification of the accused he stated that he could identify and recognize the person who fired shots and has identified the appellant Daya Singh. The learned Judge has noted that at that time as there was no electricity in the Court room, the accused, witnesses, advocates and he himself went outside the court room where the accused was identified by Dr. Harnam Singh in second round which took 3 to 4 minutes. In cross-examination, he has stated that he was using spectacles since last more than 40 years and he could see up to a distance of 30 to 40 or 100 yards with the help of spectacles and could identify a person from a distance of 20 to 25 yards. He has also stated that during the time of identification as there was no electric light in the court room and was dark, he was required to go outside the court room and there he had identified the accused. He has clarified what he understood by catty eyes and stated that eyes were like that of a cat and nothing more. The witness was asked whether he could say that the eye of other accused named Inderjeet Singh was like cat. To that, his reply was his eyes were normal and not like that of a cat. He has also stated that he has seen accused Daya Singh on the date of incident from a distance ranging from one yard to 3-4 yards and that Daya Singh had fired from a distance of 3 yards in the courtyard.
6. In further cross examination, he has stated that he knew the name of accused Daya Singh prior to 06 February 1997because he was informed by the police at the time of interrogation of the accused on the basis that he was having eyes like a cat and that he came to know his name within two to four months of the occurrence. He has also stated that he along with his wife visited Central Jail, Ambala for identification of the accused, but they were informed that accused Daya Singh had refused to participate in the identification parade. It was his say that he identified the accused Daya Singh after wearing and even after removing spectacles and that at the time of identification, he had removed the spectacles in order to satisfy himself that accused Daya Singh was the same person. He had denied the suggestion that he had wrongly identified the accused at the instance of the police. In view of the limited contention raised in the appeal, other part of the evidence is not required to be referred in this appeal.
7. Similar is the evidence of Jaswant Kaur PW37. It is her say that on 09 April 1988 at about 8.15 to 8.30 p.m. her husband Dr. Harnam Singh was working in his room and her son Khushdev Singh, daughter-in-law Gurpreet Kaur and Gurdeep Singh were watching T.V. programme. At that time, one person came from outside and called Doctor Sahib (her husband). In the courtyard, two bulbs of electricity were on at that time. On hearing the call of her husband, she went out and saw one Sikh gentleman, aged about 25-26 years-who was well built, having small beard and holding a pistol in his hand, was caught hold by her husband. She also caught hold of his hairs. Subsequently, one other Sikh who was also well built, having thick beard and eyes like cat holding firearms came towards them. He fired and the shots hit on the left arm of her husband and also on her abdomen. On hearing the sound of fire shots, Gurdeep Singh followed by her son Khushdev Singh and daughter-in-law Gurpreet Kaur came out. It is her say that again that Sikh fired shot towards Gurdeep Singh which hit his body and he died on the spot. Thereafter, Khushdev Singh and Gurpreet Kaur grappled with that Sikh who was firing shots. In the process of grappling, that Sikh, Gurpreet Kaur and Khushdev Singh went out in the street. Other Sikh who was held by her came out in the process of grappling and his pistol had fallen down in that process. One blanket, one turban and one of the shoes of that Sikh gentleman also fell in the courtyard of her house. It is her say that when they came out, they found another Sikh gentleman who was well built, tall, having whitish complexion and black and round eyes.
8. That Sikh also fired shots from his fire-arm towards Khushdev Singh, Gurpreet Kaur and herself. Khushdev Singh and Gurpreet Kaur received injuries on various parts of their bodies. During that firing, the Sikh who was held by her also received injuries and he fell down. Khushdev Singh, Gurpreet Kaur and the Sikh who received fire shots died at the spot in the street. It is her further say that her brother Hira Singh, (PW40) also reached at the scene of occurrence on hearing noise. He received injuries by firearm. One Somnath PW47 also came there and he also received injuries. It is her say that she could identify the Sikh who had entered the courtyard of her house and had fired shots from his firearm upon her and her husband. She has admitted that her eye-sight was weak. After looking at the accused, she raised suspicion on one of the accused whose name on inquiry was revealed Daya Singh (appellant). She said that this accused is the same person who had fired shots on her and her husband. She again stated that she had recognized this accused, but as he was not opening his eyes, she has used the words that she was identifying on suspicion. The learned Judge has noted that the witness had taken nearly five minutes in identifying the accused out of all the accused present in the Court. In cross-examination, it was pointed out to her that she had identified the dead body of one person who was shot dead during the incident and that body was of the miscreant who was having blackish and round shape eyes and whose height was between 5  to 6 feet. She has further stated that at the time of incident her eye sight was normal, but subsequently one of her eyes was operated and nothing was visible from that eye and at present she could see an object from a distance of about one feet with the help of spectacle. She has also stated that accused Daya Singh has similar features which she remembered since the date of occurrence and, therefore, she was in a position to identify him even though he had not opened his eyes. She has denied the suggestion that she has wrongly identified Daya Singh at the instance of police. She has pointed out that during the incident, electric bulbs were fitted in the courtyard. She was asked with regard to the complexion of the accused and she replied that Daya Singh was having whitish complexion and that it was incorrect to suggest that Daya Singh was of fair complexion. To her, other accused namely Parshottam Singh and Jaspal Singh were shown and she was asked to differentiate between the complexion of the accused Daya Singh and those two persons. To that, she replied that she can not differentiate. Further, PW39 Ram Singh was passing by near the house of Dr. Harnam Singh and near electric poll, he was injured by a shot but had not seen as to who fired the shot. He has stated that it was dark at the scene of occurrence. Similarly, Hira Singh PW40, brother-in-law and a neighbour of Dr. Harnam Singh had also received injury at the time of incident when he came out of the house and gave Lalkara. He was also removed to the hospital. He failed to identify the accused. Similarly, one Somnath (PW47) after hearing the noise and sound of fire came to know that terrorists have come. He was going from the house of his uncle towards his house. On the way two persons came running and struck against him. One was holding a small firearm which was perhaps a revolver and other was holding firearm like stengun. He tried to catch hold of one person and collided with him. At that time, there was firing from the opposite direction and one shot hit him on his right arm. It is his say that the person who was collided with him was not present in the Court room. It is the prosecution version that FIR was lodged by one Gagandeep Singh (PW29) who was returning to his house in the evening and after hearing sound of fire shots he rushed at the scene of occurrence and found that Khushdev Singh and Gurpreet Kaur were grappling with 3 to 4 Sikhs. He raised a noise addressing to those persons and one of them ran towards him with a stengun and so being frightened he came back and hid himself. He again went at the house of Harnam Singh after 4 to 5 minutes and found that terrorists had already left. He found that Gurpreet Kaur and Khushdev Singh were seriously injured and his elder brother Gurdeep Singh was lying dead at the spot. He rushed to the police station but on the way the police met him and his statement was recorded.
9. Prosecution has also relied upon Harbans Singh PW43, Land Acquisition Officer who was posted as Tehsildar, Kurukshetra on 02 June 1988. He had gone for conducting identification parade in Central Jail, Ambala at the instance of S.P. Kurukshetra. It is his say that he reached Central Jail at 5.00 p.m. and Daya Singh was produced before him by the jail authorities. He informed Daya Singh that he had come for conducting identification parade, but Daya Singh refused to participate on the ground that he had already been shown by the police to the expected witnesses. His statement was accordingly recorded by him and the said statement alongwith his report was sent to the S.P. Kurukshetra. In cross-examination, he has stated that he was not knowing accused Daya Singh personally, but was identified by the jail authorities. He further stated that he could not identify the accused Daya Singh out of the accused persons present in the court. He has also stated that he was not knowing Jaswant Kaur PW37 personally and could not say whether she was present outside the jail premises on that day or not. He denied the suggestion that accused Daya Singh never refused for such an identification parade and that he was deposing falsely.
10. PW45 Roshan Singh, DIG, CISF, New Delhi has deposed that on 05 May 1988, 22 May 1998, 02 June 1998 and 14 June 1998 , he had recorded the confessional statements of number of accused. It is his say that on 29 June 1998 , he visited CIA, Kurukshetra and recorded the confessional statement of Daya Singh, which was produced as Ex. PW45/W. It is his say that the accused made the statement voluntarily which was read over to him and his signatures were taken. He also appended the certificate Ex. PW45/W-1 below the confessional statement and the said confessional statement was sent to the C.J.M., Kurukshetra on the same day in a sealed envelope. He has stated that he could not identify the persons including Daya Singh whose confessional statements were recorded by him on various dates mentioned above. In cross-examination, he has admitted that many police officers were present in the police station when confessional statements were recorded. Further as discussed by the learned Judge, he has not followed the necessary procedure of recording confessional statement and that the same is not voluntary. Therefore, the said confessional statement is rightly not relied upon by the trial court. Further almost all the confessional statements of the accused persons except that of Parshottam Singh were recorded by the Reader of the S.P., who is not examined. Other part of the prosecution evidence is not required to be reiterated as the controversy in the appeal is in a narrow-compass.
11. The learned counsel Mr. Lalit submitted that conviction of the appellant is based solely on the identification of the accused in the Court by PW37 and PW38. He contended that the incident took place in April, 1988 and identification in the Court by Smt. Jaswant Kaur (PW37) is in November, 1996 i.e. after lapse of seven and half years. Similarly, identification by Dr. Harnam Singh (PW38) is after eight years. Therefore, on this sole ground of delay in identification, their evidence can not be relied upon for convicting the accused. He contended that it is difficult for the witnesses to identify the accused after long lapse, unless they are repeatedly seen. He pointed out that in this case there is possibility that accused could have been seen in the court before identification. He further contended that other injured witnesses namely PW29 Gagandeep Singh, who lodged FIR, PW40 Hira Singh and PW47 Somnath have not identified the accused. He pointed out that PW29 has not specifically stated about the light in the courtyard but has only stated that because of the street light he could see the accused and that Ram Singh admits that it was night time and dark at the scene of occurrence. Even Hira Singh has admitted that because of long lapse of time, he could not identify the assailants. Independent witness Tehsildar (PW43) who had gone for test identification parade has also failed to identify the accused. Similarly, the SP (PW45) who allegedly recorded the confessional statement has also failed to identify the accused. In such circumstances, it would not be safe to rely upon the evidence of the aforesaid two witnesses for convicting the accused. Lastly, he contended that even deposition of PW37 and PW38 qua identification is halting one and, therefore, also benefit of doubt is required to be given to the accused. In support of his contention he placed reliance on decision of this Court in Hari Nath and Another v. State of U.P. [AIR 1988 SC 345 1987 Indlaw SC 28066]. Learned counsel for the appellant has also relied upon the decisions of this Court in Mohd. Abdul Hafeez v. State of Andhra Pradesh [AIR 1983 SC 367 1982 Indlaw SC 63], Wakil Singh and Others v. State of Bihar [AIR 1981 SC 1392 1981 Indlaw SC 48] and Soni v. State of UP [(1982) 3 SCC 368] 1981 Indlaw SC 608 wherein the Court has observed that identification parade after some time lapse would be of no consequence and, therefore, on the basis of such identification, accused cannot be convicted.
12. As against this, learned counsel for the State submitted that the Designated Court has rightly convicted the accused on the basis of clinching evidence of PW37 and PW38 who apart from being injured witnesses have lost their son and daughter-in-law during the incident which had taken place in their house. It is submitted that accused were terrorists and in such cases, there is no question of having other independent witnesses. Even if independent witnesses were available, they would not dare to make any statement against the accused. He pointed out that as held by the learned Judge, investigation was sluggish but that is no ground for not relying upon the evidence of PW37 and PW38. It is his contention that it would be unreasonable to expect Superintendent of Police, who recorded the confessional statement of number of accused in the case in the year 1988, to identify the accused after lapse of seven to eight years. Similarly, the Tehsildar who had gone to hold identification parade also is not expected to identity the accused. It his contention that court has rightly relied upon the evidence of injured affected witnesses and for this purpose he referred to the observations made by the Designated Court to the effect that physical features of accused Daya Singh must have been embedded in the memory of Jaswant Kaur just like a gali stone because it was he who with his co- assailants committed the gruesome crime.
13. At this stage we would first refer to the decisions upon which reliance is placed. In the case of Soni 1981 Indlaw SC 608 (Supra), this Court observed that delay of 42 days in holding the identification parade throws a doubt on genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering facial expression of the appellant. In the case of Mohd. Abdul Hafeez 1982 Indlaw SC 63 (Supra), the Court while dealing with a robbery case observed that as no identification parade was held, no reliance can be placed on the identification of accused after lapse of four months in the court. In the case of Hari Nath 1987 Indlaw SC 28066 (Supra), the Court observed that evidence of test identification is admissible under Section 9 of Evidence Act. But the value of test identification, apart from the other safeguards appropriate to a fair test of identification depends upon the promptitude in point of time with which the suspected persons are put up for test identification. If there is an unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test. The Court further referred to Prof. Borchards Convicting the Innocent on the basis of error in identification of the accused. The learned author has observed: The emotional balance of the victim or eye-witness is so disturbed by his extra-ordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused.
In the paragraphs below, the Court has observed as under:-
14. The evidence of identification merely corroborates and strengthens the oral testimony in Court which alone is the primary and substantive evidence as to identity. In Hasib v. State of Bihar [AIR 1972 SC 283] 1971 Indlaw SC 794 this Court observed:
15. The purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding.
16. In Rameshwar Singh v. State of J & K, [AIR 1972 SC 102 1971 Indlaw SC 210], this Court observed (at p.104):
17. It may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the formers arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial.
18. It is, no doubt, true that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are, otherwise, brought out. It is also rightly said that
19. Courts ought not to increase the difficulties by magnifying theoretical possibilities. It is their province to deal with matters actual and material to promote order and not surrender it by excessive theorising or by magnifying what in practice is really unimportant.
20. The question, therefore, iswhether the evidence of injured eyewitnesses PW37 and PW38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashtra v. Suresh [(2000) 1 SCC 471 1999 Indlaw SC 768] as under:
21. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.
22. In the present case, there is no lapse on the part of the Investigating Officer in holding the test identification parade. The appellant was arrested on 28 May 1998 and the identification parade was to be held on 2nd June, but on that day accused refused to take part in the parade. For his arrest, PW45 Resham Singh, DIG and PW46 Bishan Singh, CIA Inspector have specifically stated that the appellant was arrested on 27 May 1988 by the Punjab Police and was brought at Kurukshetra on 28 May 1998 and was sent in judicial custody as he was to be identified. Further, there is no reason to disbelieve the evidence of Tehsildar who had gone there for holding the test identification parade of accused. Learned Senior Counsel Mr. Lalit repeatedly submitted that investigating officer has not produced on record the statement of the accused recorded by Tehsildar and the report submitted by him and, therefore, no credence should be given to the evidence of Tehsildar. In our view, this submission is totally misconceived. It is true that if the investigating officer had produced on record the statement of accused and the report submitted by Tehsildar, it would have corroborated his say. But in our view the evidence of such disinterested, independent, official witness does not require any corroboration. In cross-examination, the Tehsildar has specifically stated that he did not know the accused Daya Singh personally but accused was identified by the jail authorities. He has also denied the suggestion that Daya Singh never refused for such identification parade and that he was deposing falsely. Tehsildar was least interested in the prosecution or falsely involving the accused. Further, he is not expected to know the accused personally nor to remember his face for years.
23. He was discharging his official functions and is not expected to memorise the identity of the persons whose statements he had recorded. There is no reason to hold that jail authorities have committed any mistake in producing Daya Singh before the Tehsildar for parade. Further, the evidence of Tehsildar that he had gone to Central Jail for identification parade gets corroboration from the evidence of PW38 who also went to the Central Jail, Ambala for identifying the accused, but they were informed that the accused had refused to participate in the test parade. It is to be stated that in such a situation, this Court in Suraj Pal v. State of Haryana [(1995) 2 SCC 64] 1994 Indlaw SC 549 held that substantive evidence identifying witness is his evidence made in the Court and if the accused in exercise of his own volition declined to submit for test parade without any reasonable cause, he did so on his own risk for which he cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable. The Court observed it is true that they could not have been compelled to line up for test parade but they did so on their own risk for which the prosecution could not be blamed for not holding the test parade. In that case also, the Court disbelieved the justification given by the accused for not participating in the identification parade on the ground that accused were shown by the police to the witnesses. Same is the position in the present case. Further, there is no reason to disbelieve the evidence of Dr. Harnam Singh and his wife Jaswant Kaur when they identified the accused out of 14 persons who were facing the trial. Their evidence is cogent and consistent with regard to the identification of appellant. The conduct of Dr. Harnam Singh was natural in the court premises. As there was no electricity in the court room, he identified the accused after going outside the court room in the second round which took 3-4 minutes. He had seen accused Daya Singh grappling with his son and daughter-in-law. The identification by this witness was tested in the cross-examination and in our view, he stood the test of cross-examination. He gave specific physiognomy of the accused by stating that he was having catty eyes meaning thereby the eyes like a cat. He has also stated that he had seen the accused from a distance ranging from 1 yard to 3-4 yards and that the appellant-accused had fired from 3-4 yards in the courtyard. This witness alongwith his wife has also identified the dead body of one other co-assailant Daljinder Singh alias Chandibaba on 07 May 1988. In the cross-examination, he further stated that he could identify the appellant after wearing and removing the spectacles and has done so in the court room. Similarly, Jaswant Kaur also identified the appellant as the assailant. Her evidence is so natural that it is impossible to believe that she is falsely involving the accused-appellant. In the beginning, she raised suspicion on one of the accused who was not opening his eyes as the appellant and identified the said person as the person who had fired shots on her and her husband. This identification was done after taking five minutes. She deposed that Daya Singh was having similar features which she remembers since the date of occurrence and has denied the suggestion that she has wrongly identified the accused at the instance of police. PW38 Dr. Harnam Singh who was a Doctor and also an MLA would not involve the appellant falsely in such a heinous crime. There was no reason suggested to the witness for involving the appellant in the crime. Similarly, Jaswant Kaur was also not having any interest in the accused. However, the learned counsel for the appellant, Mr. Lalit referred the say as noted by Professor Borchardsthe emotional balance of the victim or eye-witness is so disturbed by his extra-ordinary experience that his powers of perception become distorted and his identification is untrustworthy... It is true that PWs 37 and 38 have lost their son, daughter-in-law and son of brother-in- law and that it was extraordinary experience for them to be assaulted by terrorists. But, it would be difficult to hold that at that time, they had lost their power of perception. Theoretically in some cases what has been noted by the learned author may be true. For that purpose, the evidence of the witness is required to be appreciated with extra care and caution. But, where evidence is cogent, consistent and without any motive, it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses and with regard to their power of memorizing the identity of the assailants. Power of perception and memorising differs from man to man and also depends upon situation. It also depends upon capacity to recaptulate what has been seen earlier. But that would depend upon the strength or trustworthiness of the witnesses who have identified the accused in the Court earlier.
24. Further in the present case, identification in the Court was out of 14 persons. That itself would lend credence to identification by the witnesses. For this purpose, learned Judge has rightly observed to the effect that physical features of accused must have been embedded in the memory of Jaswant Kaur. From the evidence and the cross-examination of these two witnesses, it is apparent that they gained enduring impression of the identity of the accused during the incident. Therefore, delay in trial by the Designated Judge for one reason or the other and thereafter identification of the accused in the Court after seven or eight years would not affect the evidence of these two witnesses. Similarly, if the prosecution was interested in falsely involving the accused, Gagandeep Singh PW29, Hira Singh PW40 and Somnath PW47 were having opportunity to identify the accused at the time of trial.
25. However, the learned counsel for the appellant submitted that as they have not identified the accused, evidence of Jaswant Kaur PW37 and Dr. Harnam Singh PW38 becomes suspect. In our view, this reaSoning is fallacious firstly on the ground that it is not expected that all the witnesses should be in a position to identify the accused nor their evidence can be compared in the way suggested by the learned counsel. Secondly, in the present case, the aforesaid witnesses got injuries when they were outside the premises of Dr. Harnam Singh. Learned counsel for the appellant further submitted that Tehsildar PW43 who had opportunity of recording the statement of the appellant and Resham Singh, DIG PW45 who had recorded the confessional statement which runs into more than 10 pages have not identified the accused in the Court. In our view, Tehsildar and DIG were discharging their official functions and were not at all affected by the incident so as to memorise the identity of the accused. At this stage, we would note one other submission made by learned counsel Mr. U.R. Lalit with regard to two electric bulbs in the courtyard. In our view, the submission on this count does not deserve much consideration. The incident took place at evening time between 8.00 to 8.30 p.m. (in the month of April) and not dead at night, where there may be difficulty of seeing the faces of the accused. Further, it is to be born in mind that terrorists entered the house which was situated in the city, that too, of an MLA and it would be difficult to hold that two electric bulbs in the courtyard were not on at the relevant time. Therefore, the learned Judge has rightly appreciated this aspect in his judgment.
26. We, therefore, broadly agree with the appreciation of evidence recorded by the learned Judge for convicting the accused Daya Singh and acquitting rest of the accused.
In the result, both the appeals are dismissed.


Malkhansingh and Others v State of Madhya Pradesh
Supreme Court of India

8 July 2003
Appeal (crl.) 1299-1300 of 2002
The Judgment was delivered by : B. P. Singh, J.
1.  The three appellants herein were tried by the Second Additional Sessions Judge, Vidisha, M.P. in Sessions Trial No. 76 of 1992 charged of offences under section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989; section 376 (2)(G) and section 506 of the Indian Penal Code on the allegation that they had, on March 4, 1992, committed gang rape and criminally intimidated Kumari Lusia a tribal woman, who was posted as Assistant Teacher in the Primary Government School at Village Bagod. The trial court acquitted them of the charge under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 but found them guilty of the offence under section 376(2)(G) of the Indian Penal Code and sentenced them to ten years rigorous imprisonment and a fine of Rs.2,000/- each under that section. It further found them guilty of the offence under section 506 Part II of the Indian Penal Code for which they were sentenced to one year rigorous imprisonment. Aggrieved by the judgment and order of the trial court, the appellant Malkhansingh preferred Criminal Appeal No. 49 of 1997 while the other two appellants filed Criminal Appeal No. 76 of 1997 before the High Court of Madhya Pradesh at Jabalpur. The High Court by its impugned judgment and order of March 11, 2002 dismissed the appeals. The appellants have preferred these two appeals by special leave.
2.  The case of the prosecution is that the prosecutrix Kumari Lusiya was working as Assistant Teacher in the Government Primary School at village Bagod. She was aged about 28 years and was unmarried. On March 4, 1992 at about 11.30 a.m. she boarded a bus to go to Bagod and alighted from the bus at about 1.00 p.m. at a place known as Zero Chain Puliya from where her school was located at a distance of about 1 kilometer. After alighting from the bus she proceeded on foot to the school in village Bagod. When she was near the tapara of Baldar Khan she noticed that she was being followed by three persons. When she proceeded some distance she suspected that some of them had come very close to her. She moved to the edge of the path-way giving way to the persons behind her to go ahead. However, one of them, later identified at appellant Maharajsingh, caught hold of her hands from behind. The prosecutrix objected and raised an alarm calling out for Baldar Khan but no one came to her rescue. On the other hand appellant Malkhansingh took out a knife and threatened her. Appellant Musab Khan also took out a knife and threatened her into silence. Two of them then dragged her towards the canal where she was further threatened and made to lie on the ground. When again she persisted in raising alarm, appellant Maharajsingh placed a knife on her neck and tried to press her neck. Thereafter the appellants Musab Khan and Malkhansingh removed her clothes and Musab Khan was the first person to sexually assault her followed by Maharajsingh and Malkhansingh. Thereafter they left her giving threats of dire consequences if she reported the matter to the police and reminded her that she would meet the same fate, which Madam Rekha had met, if she reported the matter to the police.
3.  After the occurrence the prosecutrix left for her home at Bagod and went to school at about 3.00 p.m. On the next day she attended the school but thereafter went to Vidisha accompanied by another teacher Mangalsingh. At Vidisha she met the Deputy Director of Education, one Mr. Dutta, on March 6, 1992 to whom she narrated the incident and told him that the three boys were after her life and it was not safe for her to go back to Bagod. She requested that she may be transferred to some other school. According to the prsocutrix, Mr. Dutta attached her to a school at Khamkheda with effect from March 10, 1992. She narrated the incident to her colleague Shri Mangalsingh on March 12, 1992, who inturn reported the matter to Kaluram, PW.3, who was the President of District Teachers Association. On March 14, 1992 Shri Kaluram, PW.3, took her to the residence of Superintendent of Police, Vidisha where the prosecutrix handed over a typed complaint to the Superintendent of Police. The said complaint was forwarded to the Kotwali, Vidisha, where a crime was registered. The prosecutrix was thereafter medically examined by Dr. Manju Singhai, PW.1, on the same day at about 6.45 p.m. Her clothes were seized and handed over to the police. The Vidisha police sent the relevant papers to Police Station Satpada, since village Bagod fell within the jurisdiction of that police station. The case was investigated and ultimately Musab Khan was arrested on March 29, 1992 while the others were arrested on March 26, 1992. The appellants were put up for trial before the Additional Sessions Judge, Vidisha, where the prosecutrix identified them as the three persons who had subjected her to sexual assault and criminal intimidation.
4.  A few facts which may be noticed at the threshold are that the investigating officer did not consider it necessary to hold the test identification parade. Surprisingly, the prosecution did not examine its witnesses Shri Mangal Singh and Shri Dutta, Deputy Director of Education, to whom she had narrated the incident on March 6, 1992. Before the trial court as well as before the High Court it was urged on behalf of the defence that there was considerable delay in lodging the first information report and therefore not much reliance could be placed upon the testimony of the prosecutrix. It was also urged that the medical evidence on record did not support the case of the prosecution. Lastly it was submitted that in the absence of a test identification parade, the identification of the appellants by the prosecutrix before the trial court had no value whatsoever and, therefore, the conviction of the appellants was not justified in law.
5.  The trial court as well as the High Court have carefully considered the evidence on record and have come to the conclusion that the delay, if any, in lodging the first information report was fully explained by the prosecutrix and was strongly supported by the circumstantial evidence on record. The courts below have noticed the fact that the prosecutrix was living all alone and was an unmarried person, about 28 years of age. She did not have any family member to whom she could have narrated her story immediately after the occurrence. Moreover the sense of shame coupled with the fear on account of threats given out by the appellants must have deterred her from immediately reporting about the occurrence to others. Even so, according to her, she narrated the incident to Shri Dutta, Deputy Director of Education on March 6, 1992. Later she narrated the incident to one of her colleagues whom she found to be sympathetic towards her and thereafter when her cause was taken up by the teachers association, she could muster courage to lodge a report with the Superintendent of Police. The courts below have, therefore, rightly held that in the facts and circumstances of the case, the mere delay in lodging of the first information report does not discredit the prosecution case. The courts below have also examined the medical evidence on record and have observed that the medical evidence, to some extent, supported the case of the prosecution that the prosecutrix may have been subjected to forcible sexual intercourse within a week or two of her medical examination. The medical evidence also indicated that the prosecutrix was not habituated to sexual intercourse. We find no reason to dis-agree with the findings recorded by the courts below on these aspects of the matter.
6.  The principal submission urged before the courts below as also before us is whether the conviction of the appellants can be sustained on the basis of the identification of the appellants by the prosecutrix in court without holding a test identification parade in the course of investigation. While the appellants contend that the identification in court not preceded by a test identification parade is of no evidentiary value, the prosecution contends that the substantive evidence is the evidence of identification in court and, therefore, the value to be attached to such identification must depend on facts and circumstances of each case. No general rule could be laid that such identification in the court is of no value.
7.  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, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, 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 of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad vs. Delhi Administration : AIR 1958 SC 350 1958 Indlaw SC 58; Vaikuntam Chandrappa and others vs. State of Andhra Pradesh: AIR 1960 SC 1340 1959 Indlaw SC 284 ; Budhsen and another vs. State of U.P. : AIR 1970 SC 1321 1970 Indlaw SC 136 and Rameshwar Singh vs. State of Jammu and Kashmir : (1971) 2 SCC 715 1971 Indlaw SC 210 ).
8.  In Jadunath Singh and another vs. The State of Uttar Pradesh : (1970) 3 SCC 518 1970 Indlaw SC 397 the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani vs. The State of Rajasthan : (Criminal Appeal No.92 of 1956 decided on January 15, 1957) wherein it was observed :-
"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such. These circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person, who is well-known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances."
The Court concluded :
"It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani V. The State of Rajasthan (supra), that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case."
9.  In Harbajan Singh vs. State of Jammu and Kashmir : (1975) 4 SCC 480 1975 Indlaw SC 544, 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 that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held :-
"In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh vs. State of U.P 1970 Indlaw SC 397., absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant."
10.  It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
11.  In Ram Nath Mahto vs. State of Bihar : (1996) 8 SCC 630 1996 Indlaw SC 2988 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 demeanour that the witness perhaps was afraid of the accused as he was trembling at the stare of Ram Nath, accused. This Court also relied upon the evidence of the Magistrate, PW.7 who had conducted the test identification parade in which the witness had identified the appellant. This Court found, that in the circumstances if the Courts below had convicted the appellant, there was no reason to interfere.
12.  In Suresh Chandra Bahri vs. State of Bihar : 1995 Supp (1) SCC 80 1994 Indlaw SC 354 this Court held that it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution.
Thereafter this Court observed :-
"But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."
13.  In State of Uttar Pradesh vs. Boota Singh and others : (1979) 1 SCC 31 1978 Indlaw SC 291 this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, 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.
14.  In Ramanbhai Naranbhai Patel and others vs. State of Gujarat : (2000) 1 SCC 358 1999 Indlaw SC 855 after considering the earlier decisions this Court observed :-
"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) vs. V.C. Shukla wherein also Fazal Ali, J. speaking for a three Jude Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eyewitnesses.
It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless ; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned counsel for the appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha vs. State of Maharashtra and State of H.P. vs. Lekh Raj had not considered the aforesaid three-Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three- Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned counsel for the appellants that the evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them."
15.  In the light of the principle laid down by this Court we may now examine the facts of this case.
16.  It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants.
17.  After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity.
18.  The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record.
19.  We, therefore, find no merit in these appeals and the same are accordingly dismissed.
Appeal dismissed


Subash Shiv Shankar v State of Uttar Pradesh
Supreme Court of India

14 April 1987
Cr.A. Nos. 287-288 of 1978. From the Judgment and Order Dt. 14.10.1977 of the Allahabad High Court in Cr.A. Case No. 2242 of 1972
The Judgment was delivered by: S. Natrajan, J.
1. These Appeals by Special Leave arise out of a common judgment rendered by the Allahabad High Court in three Criminal Appeals filed before it by the appellants and one Raj Kishore. Appellant Subash and appellant Shiv Shankar were convicted along with Raj Kishore by the 4th Additional Sessions Judge, Bareilly u/s. 302 read with S. 34 Indian Penal Code and S. 324 read with S. 34 Indian Penal Code respectively for having committed the murder of one Ram Babu and for having caused hurt with a knife to witness Dinesh Shankar. For the said convictions they were awarded imprisonment for life and three year's R.I., respectively and the sentences were ordered to run concurrently. One Om Kumar who was also sent up for Sessions trial under the two charges mentioned above was acquitted by the Sessions Judge. The three convicted persons preferred appeals to the High Court and the High Court has confirmed the convictions and sentences awarded to Subash and Shiv Shankar but acquitted Raj Kishore.
2. The offences in question were committed on March 12, 1971 i.e., a day after Holi Festival at about 11 a.m. on the Bareilly-Nainital Road in Bareilly. The prosecution case was that while Shiv Shankar caught hold of Ram Babu, Subash, Raj Kishore and Om Kumar repeatedly stabbed him with knives and caused fatal injuries to him. When Dinesh Shankar (P.W. 2) tried to intercede he was also stabbed by Subash and caused an injury. Besides, Dinesh Shankar (P.W. 2) the occurrence was witnessed by an uncle of Ram Babu viz. Budh Sen (P.W. 1) and Shyam Behari (P.W. 3) and some others. Ram Babu and Dinesh Shankar were taken to the hospital but Ram Babu was pronounced dead in the hospital. The motive for the occurrence was that about 15 or 20 days prior to the occurrence Ram Babu had given a machine part to Subash for being welded but Subash failed to carry out the work; nevertheless he refused to return the machine part without the repair charges being paid to him. Ram Babu refused to pay the charges and there was an altercation but the parties were pacified by Dinesh Shankar and Ram Babu took away the machine part without paying any charges to Subash. The quarrel had taken place about 3 or 4 days before the occurrence. Bearing this grudge in mind, when Ram Babu, accompanied by Budh Sen and Dinesh Shankar was proceeding to Qutabkhana to witness the Holi celebrations, Subash assisted by his three companions attacked Ram Babu in the manner set out earlier and caused fatal injuries to him. There were as many as 14 injuries on Ram Babu among which 7 were punctured wounds. Among the punctured wounds, injury nos. 7 and 8 were deep injuries which had injured the pleura, left lung, pericardium and the heart. These injuries were certified to be sufficient in the ordinary course of nature to cause death. Dinesh Shankar (P.W. 2) also had sustained an incised wound on his left thigh.
3. Budh Sen (P.W. 1) got a report Exhibit Kha 1 written by his son and presented it at the Police Station at 1.12 p.m. Therein he has stated that accused Subash was known to him but the other three assailants were not known to him but another witness Bhuvan Chand examined as C.W. 1, had in- formed him that one Raja Ram was one of the assailants of Ram Babu. It would appear that subsequently Bhuvan Chand refused to testify out of fear of the accused and hence he was not cited as a witness in the charge-sheet. Even so, having regard to the averments in Exhibit Kha 1, the Sessions Judge examined Bhuvan Chand as a court witness. He, however, failed to corroborate Budh Sen and stated that he did not know anything about the occurrence.
4. Subash was absconding and he surrendered before the court on 12.3.71. He was subsequently questioned by the Investigating Officer and he gave information regarding the names and addresses of the other three assailants. Raj Kishore was arrested on 23.5.1971 and Shiv Shankar was arrested on 14.6.71 from the office of the Central Excise, Bareilly where he was employed. Om Kumar surrendered himself in Court on 15.7.71. 5. Test identification parades were held for Raj Kishore and Shiv Shankar on 5.5.71 wherein Shiv Shankar was identified by Budh Sen, Dinesh Shankar and Shyam Behari but Raj Kishore was identified only by Dinesh Shankar. In the subsequent test identification parade held for Om Kumar on 27.7.71 none of the witnesses was able to identify him. The defence of all the accused was one of denial.
6. Since accused Om Kumar was not identified by any of the witnesses at the test identification parade and since his name was not mentioned in Exhibit Kha 1 the Sessions Judge acquitted him of the charges and convicted only the two appellants and Raj Kishore. The High Court acquitted Raj Kishore because he had been identified only by Dinesh Shankar and not by the other witnesses but, however, confirmed the conviction of these two appellants and it is against such confirmation by the High Court, the appellants have preferred these Appeals.
7. Before dealing with the case of Subash we can conveniently deal with the appeal of Shiv Shankar. Admittedly he was not known to any of the eye witnesses and his name does not also find a place in the First Information Report Exhibit Kha 1. His name came to be known only through Subash when he was questioned in the jail on 7.4.1971. Even if it were so, it is not understandable why the Investigating Officer should have taken three weeks to question Subash after his surrender in Court on 17.3.1971. Be that as it may, even after getting the name and address of Shiv Shankar from Subash, the Investigating Officer has failed to trace him and arrest him till 14.6.1971. Shiv Shankar was an employee in the office of the Central Excise Department at Bareilly itself. It is, therefore, difficult to believe that the Investigating Officer would not have been able to trace him and arrest him for nearly 9 weeks after coming to know of Shiv Shankar's name and address from Subash. As a matter of fact, the Investigating Officer has stated in his evidence that he visited the house of Shiv Shankar two or three times to arrest him but Shiv Shankar was not to be found. If Shiv Shankar was absent from the house the Investigating Officer could have easily learnt from the neighbours where he was working and where he had gone and located him and arrested him. It is not the prosecution case that Shiv Shankar was absconding. In such circumstances it is difficult to accept the prosecution case that the Investigating Officer could not trace and arrest Shiv Shankar till 14.6.71 in spite of coming to know on 7.4.71 itself that he was one of the assailants of Ram Babu.
8. Apart from this infirmity we further find that Shiv Shankar was not put up for test Identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha 1 nor in their statements during investigation, the eye witnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had 'sallow' complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification, parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then.
Thus in the absence of any descriptive particulars of Shiv Shankar in Exhibit Kha 1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthu Swami v. State of Madras, A.I.R. 1954 S.C 4 1951 Indlaw SC 76 where an identification parade is held about 2-1/2 months after the occurrence it would not be safe to place reliance on the identification of the accused by the eye witnesses. In another case Mohd. Abdul Hafeez v. State of Andhra Pradesh, A.I.R. 1983 S.C. 361 1982 Indlaw SC 63 it was held that where the witnesses had not given any description of the accused in the First Information Report, their identification of the accused at the Sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.
9. Mr. U.R. Lalit, learned counsel for Shiv Shankar further contended that Shiv Shankar had certain distinctive features like scars on the face, reddish lips etc., and these marks of identification should have been furnished to the witnesses before they were called upon to identify Shiv Shankar at the identification parade. We do not think it necessary to go into the merits of this argument in the light of our conclusion already reached. As the conviction of Shiv Shankar is based solely with reference to his identification at the identification parade, he has to be given the benefit of doubt and acquitted in the light of our finding. Accordingly, Shiv Shankar's appeal has to succeed.
10. Coming now to the appeal of Subash it was strenuously contended by Mr. Frank Anthony, learned counsel that the prosecution evidence suffers from numerous infirmities and as such the Sessions Judge and the High Court ought not to have convicted him. His further argument was that in any case the benefit of doubt given to Om Kumar and Raj Kishore, ought to have been given to Subash also. Mr. Anthony argued that Exhibit Kha 1 could not have been given at 1.12 p.m. because there is no evidence to show when the report was sent to the Magistrate and when it was received by him. The learned counsel referred to Gurdev Singh and others v. The State, [1963] Punjab Law Reporter, 409 where the dangers ensuing from a First Information Report not being lodged promptly have been pointed out. We are unable to accept the argument of Mr. Anthony because there are no materials to warrant an inference that Exhibit Kha 1 had been given later but ante-dated to cover up the delay in making the report. It is true that the First Information Report sent to Court does not contain the Magistrate's endorsement regarding the time of its receipt, but Ram Kishan, Head Constable (P.W. 5) has deposed that the special report was despatched to the Magistrate at 1.20 p.m. itself through constable Chiman Lal and that the General Diary contains an entry to that effect.
11. It was seriously urged by Mr. Anthony that the motive put forward for the occurrence Was of a flimsy nature and it is unbelievable that for non-payment of repair charges Subash would have attacked Ram Babu along with his companions. This argument has to fail because Dinesh Shankar has clearly deposed that there was an altercation between Subash and Ram Babu there on four days earlier and Ram Babu took away the machine part without paying repair charges to Subash. There is, therefore, nothing improbable in Subash having nurtured a grievance against Ram Babu and wanting to settle scores with him. The evidence of the eye-witnesses is clearly to the effect that Subash told his companions on seeing Ram Babu, that he is the person who had quarrelled with him and taken away the machine part without paying the repair charges. Making common cause of his grievance Su- bash's companions had also joined him in perpetrating an attack on Ram Babu. The intent of Subash in launching an attack on Ram Babu can be gauged from the fact that when Dinesh Shankar tried to intervene, he had prevented him and inflicted a stab injury on him also.
12. The further argument of Mr. Anthony was that Budh Sen did not have proper eye sight, that Shyam Behari was a chance witness and that Bhuvan Chand named in Exhibit Kha 1 had failed to support the prosecution case and as such there is no accept- able evidence to convict Subash. He also stated that even though Dinesh Shankar is an injured witness, there is no guarantee his evidence is truthful. None of these contentions in our opinion, has any merit. Budh Sen has stated that his eye sight is poor without glasses but with spectacles he can see well. It is not the case of the appellant that Budh Sen was not wearing his spectacles at the time of the occurrence. In so far as Dinesh Shankar and Shyam Behari are concerned, their presence at the scene cannot admit any doubt because their names find a place in Exhibit Kha I. Moreover Dinesh Shankar has sustained an injury on his left thigh. The evidence of these witnesses has been accepted by the Session Court and the High Court and we see no reason to take a different view. In so far as Bhuvan Chand (C.W. 1) is concerned, the prosecution has satisfactorily explained why he was not cited as a witness. He had no doubt furnished the name of Raja Ram alias Raj Kishore to Budh Sen but he subsequently backed out fearing reprisal at the hands of the accused. Mr. Anthony argued that even if his contentions are not accepted, Subash can be convicted only for an offence under S. 324 Indian Penal Code for the injury caused to Ram Babu as well as Dinesh Shankar. We may mention here that the Sessions Judge had framed a separate charge against the appellant Subash under S. 324 Indian Penal Code in addition to the charge u/s. 302 read with S. 34 Indian Penal Code. Mr. Anthony invited our attention to State of U.P. v. Hari Prasad, A.I.R. 1974 S.C. 1740 1973 Indlaw SC 165 and Ugar Ahir v. State of Bihar, A.I.R. 1965 S.C. 277 1964 Indlaw SC 441 to contend that when the sub-stratum of the prosecution case fails, the entire case has to fail. We find the facts in those cases were entirely different and hence they can have no relevance to this appeal. In the present case, the prosecution version fully survives in spite of the acquittal of the other accused for want of proof of identity.
13. The last argument of Mr. Anthony was that in any event when the other accused persons are acquitted, Subash alone cannot be convicted u/s. 302 read with S. 34 Indian Penal Code in the absence of evidence to show that he caused any of the fatal injuries on Ram Babu. This argument is devoid of any merit. The case of Subash stands on a different footing from that of the other accused because he has been clearly named and the particulars of his profession and address have been furnished in Exhibit Kha 1. All the witnesses have stated that he was known to all of them. In contrast the names of the other accused were not known to the eye witnesses and the name of Raj Kishore alone had been furnished to Budh Sen by Bhuvan Chand.
14. Besides attacking Ram Babu Subash had also attacked Dinesh Shankar. He was absconding and had later surrendered himself in court. No test identification parade was held for him because his identity was never in doubt. He had a grudge against Ram Babu and it was on his instigation the attack on Ram Babu had been launched. His case, therefore, stands on a distinctively different footing from that of the other accused persons. Even though the other accused are acquitted it is only for want of proof of their identity and not because the eye witnesses had not seen the occurrence or that the occurrence had taken place in a different manner. Subash cannot, therefore, escape the consequences of the attack jointly committed by him and his accomplices in furtherance of their common intention even though the other accused stand acquitted for want of acceptable proof of their identity. Mr. Anthony referred us to the decision in Vijay Kumar v. State of J & K, A.I.R. 1982 S.C. 1022 1982 Indlaw SC 115 to contend that when the other accused stand acquitted Subash also should be acquitted of the charge u/s. 302 read with S. 34 Indian Penal Code. The facts in that case bear no comparison with the facts in this case. On the other hand Amir Hussain v. State of U.P., A.I.R. 1975 S.C. 2211 1975 Indlaw SC 574 will be the decision apt for consideration in this case. In the above case 10 persons were acquitted by the Sessions Judge and three alone were convicted u/s. 302 read with S. 34 Indian Penal Code. Among those three, two were acquitted by the High Court and consequently only one of the accused stood convicted. The said accused appealed to this court and contended that since the other two accused had been acquitted, he should also be acquitted of the charge u/s. 302 read with S. 34 Indian Penal Code. Repelling the contention this Court held as follows:
"Much stress has been laid on behalf of the appellant upon the fact that despite the evidence of the above mentioned four eye witnesses, the High Court has acquitted Kari- muddin and Mohd. Ibrahim accused. It is, in our view, not necessary to express an opinion on the point as to whether those two accused were rightly acquitted or not. All that we can say is that the benefit of doubt which resuited in the acquittal of the other two accused would not vitiate the conviction of the appellant in case the evidence adduced against him is found to be satisfactory and convincing. The material on record establishes that the appellant had a motive to join in the assault on Ibrahim Pradhan. The appellant held out a threat and report about it was lodged by Ibrahim deceased at the police station about 3-1/2 months prior to the present occurrence. The evidence about the motive lends assurance to the evidence of the eye-witnesses regarding the complicity of the appellant. We would, therefore, maintain the conviction of the appellant. As regards the sentence, it may be stated that the only injury which is attributed to the appellant is an incised wound on the right arm of Ibrahim. The incised wound which was found on the scalp of Mehandi Hasan was ascribed by the eye witnesses to Karimuddin who has been acquitted. In view of the fact that a comparatively minor injury was attributed to the appellant and he is being vicariously held liable for the fatal injuries caused by the other culprits, we consider it to be a fit case in which we might substitute the lesser sentence for the extreme penalty of death. We accordingly maintain the conviction of the appellant but reduce his sentence to that of imprisonment for life."
15. We are, therefore, of the view that even though the other accused stand acquitted and even though there is no evidence that Subash caused one of the fatal injuries, he cannot escape conviction u/s. 302 read with S. 34 Indian Penal Code when his participation with three other assailants in the attack on Ram Babu has been established beyond reasonable doubt by the prosecution. We, therefore, confirm his convictions and the sentences awarded therefore.
16. In the result Crl. Appeal No. 287 of 1978 will stand dismissed while Crl. Appeal No. 288 of 1978 will stand allowed. Appellant Subash will surrender himself to custody failing which he should be arrested for serving out the sentence. Appellant Shiv Shankar will stand acquitted of the convictions u/s. 302 read with S. 34 Indian Penal Code and 324 read with S. 34 Indian Penal Code and his bail bonds will stand cancelled.
Crl. Appeal No. 287/78 dismissed.
Crl. Appeal No. 288/78 allowed.
Appeals disposed of.