State of Maharashtra v Suresh
Supreme Court of India

10 December 1999
Appeal (Cr.) 1092-1093 of 1998
The Judgment was delivered by : Hon'ble Justice K. T. Thomas
1. A gory episode is narrated in this case the gravamen of which is a grisly perpetrated rape and murder of a four year old female child. The rapist had abducted the child from her house and decoyed her to a field at Arvi (in Wardha district of Maharashtra State). After the rape and murder the mangled body of the child was dumped in the field where pulses and cotton were cultivated. The man whom the police challenged as a culprit was convicted and condemned to death penalty by the sessions court but he now stands exonerated as a Division Bench of the High Court of Bombay proclaimed him not guilty. The State of Maharashtra is not prepared to reconcile with the clean chit granted to him by the High Court and hence this appeal by special leave has been filed by the State.
2. Sneha is the name of the little child who was subjected to the beastly sexual ravishment. She was endearingly called Gangu by her kith and kin. She had a brother younger to her the children were living in the family house which is presumably a joint family house. The life of Gangu was snuffed off on 22.12.1995.
3. As per the prosecution version the accused (who is respondent in this appeal) was already an accused in another case facing an allegation that he committed rape and murder of one eight year old female child by name Ujawala. While he was in Jail in connection with that case he came into acquaintance with a prisoner (PW6-Sanjay) who is the brother of Gangu's father (PW5-Rameshwar). Both of them were later released from prison. (We are told that respondent was acquitted in that case).
4. After such release from jail respondent visited Sanjay's house, and subsequently he paid frequent visits to the said house. During such visits he made himself familiar to Gangu. On 22.12.1995 respondent went to that house and when he was told that Sanjay had gone out, he left the house. Sneha was then playing near the gate of  the other house. Respondent would have moved away by alluring the little child to go with him. The fact remains that after respondent left the house in the afternoon no one in that house had seen Gangu alive.
5. Respondent took Gangu to the shop of PW8 Mahadeo, and later to the shop of PW14 Motiram, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for sexually ravishing that little child and smothering her to death.
6. As Gangu was not seen in the house or its precincts till night falls the panic-stricken member of her family began to make hectic searches for her. As all such efforts failed her uncle Raju went to the police station and reported that Gangu was missing from that house. Next morning her father Rameshwar (PW-5) went to the police station and lodged Ext. 22-complaint in which he expressed strong suspicion against the respondent regarding the disappearance of his child.
7. Respondent was arrested on the evening of 23.12.95. During interrogation the police came to know that dead body of the child was concealed in a farm. Though a search was made in the night to find out the spot where the body was concealed it did not fructify due to darkness. Hence the police resumed the search operation on the next morning and the spot was pointed out by the respondent wherefrom the dead body of Gangu was traced out
8. When autopsy was conducted on the body by two doctors of the local hospital a woeful picture of sexual molestation was etched by them. Ext. 68 (Postmortem Report) contains the data, inter alia, that the vagina was torn down at the perennial region by 1" with irregular lacerations and a fleshy torn portion was found protruding out there from. Contusions and abrasions on the labia majora of both sides besides swelling were also noticed by the doctor. There were number of contusions and abrasions on her face also. Dr. Avinash S. Lawhale, Medical Superintendent and Dr. Pathoda, Medical Officer of Rural Hospital, Arvi, District Wardha, after completing the jointly conducted autopsy reported that death of the child was due to asphyxia by rape and smothering.
9. There is not even a speck of doubt that Gangu was kidnapped from her house and she was raped and killed on same day on the evening of 22.12.1995. In fact the Sessions Court and the High Court concurrently found the aforesaid point affirmatively. The whole endeavour was therefore confined to the question whether the crime was committed by the respondent.
10. The trial court and the High Court focused on the circumstances which prosecution presented through the evidence for proving that the culprit in the ghastly infanticide was the respondent himself and none else. The Sessions Judge found that all those circumstances were established and they formed themselves into a completed chain unerringly pointing to the guilt of the respondent. But the Division Bench of the High Court differed from the findings of the Sessions Court regarding some of the circumstances and that resulted in exoneration of the respondent.
11. The circumstances which prosecution presented can be recast as follows (1) Respondent visited the house of Gangu at about 3.30 P.M. and after he left the house it was realized that Gangu also disappeared; (2) PW-8 Mahadeo saw the accused and a female child together in his shop at about 4.30 P.M. on the same day; (3) PW-14 Motiram saw them together in his shop at about 4.00 P.M.; (4) A little later PW-3 Sayyed Niyamat saw them walking along the road; (5) Respondent after his arrest disclosed to PW. 26 (Police Inspector of Arvi Police Station) that the dead body of the child was concealed in the farm and he offered to hand it over. Pursuant thereto the spot was pointed out by the respondent wherefrom the dead body was recovered; (6) PW-20 Dr. Avinash S. Lawhale stated that the person who caused the injuries on the vagina of the deceased child would have sustained injuries on his male organ. When respondent was medically examined on 25.12.1995 by PW-22 Dr. Nand Kumar it was noticed that his glands penis was swollen with multiple tiny punctuated abrasions besides abrasions on the posterior aspect of both elbow joints. According to the doctor those injuries could have been caused 48 hours earlier than the time of his examination; (7) Stains of human blood and semen were detected on the under-clothes of the accused when he was arrested.
12. The Division Bench of the High Court was not disposed to rely on the evidence of the three witnesses who claimed to have seen the respondent and the girl together though their evidence was found reliable by the trial court. Nor did the High Court concur with the Sessions Courts's finding regarding recovery of the dead body as sequel to the information supplied by the respondent. The High Court declined to take the injuries which the doctor noticed on the person of the respondent as an incriminating circumstance on the premise that it is not a conclusive circumstance. The Division Bench side-stepped the circumstance that semen and blood were detected on the under-clothes of the accused on the premise that there was delay in seizing those wearing apparels.
13. The evidence of PW-3 Sayyed Niyamat (PW-8) Mahadeo and Motiram (PW-14) needs scrutiny by us because acceptability of that evidence will have a decisive impact on the final conclusion of this case.
14. PW-8 Mahadeo claimed to have seen the respondent with a little girl at his grocery shop around 4 P.M. on 22.12.1995. He said that the man with the girl had purchased some peppermint from his shop presumably for appeasing the girl as she was then crying. His reason for remembering his purchase was that next he heard about the murder of a little girl and he visited the house of the girl on 24.12.1995, and identified the dead body as that of the same girl. In a test identification parade conducted by PW-26 Magistrate he identified the respondent as the person who accompanied the child. PW-3 Sayyed Nayamat gave evidence that when he was returning from his Friday Namaz he saw a young man holding a crying girl around 4.00P.M. He too gave almost the same reason for remembering it that when he heard next day about the murder of a little girl he had some doubt whether it was the same crying girl. He also identified the respondent in the test identification parade.
15. PW-14 Motiram has a betel shop in the locality. His evidence is that a young man wearing pant and shirt visited his shop at about 4.30 p.m. and bought some "Kharra" from the shop. He remembered it as a little girl was with him who was found crying then. When he heard next day about the murder he felt suspicious because the young man whom he saw the previous day in his shop was a total stranger in the locality. So he informed the police about it. He too was called in the Test Identification Parade wherein he identified the respondent as the person whom he saw with the girl.
16. If a criminal court is to view the testimony of the aforesaid three witnesses as unnatural it would be easy to brush it aside with the stereotyped reasoning that those persons had no cause to remember having seen the man with the girl accompanying him. Such a reasoning overlooks the broad aspect that a human mind, on hearing about any shocking incident, would have the tendency to recollect any previous event which could have had a connection with that incident. If as a matter of fact those witnesses had occasion to see a crying girl of that age on the very day of the gruesome episode as happened in this case, there is nothing improbable in those witnesses remembering the person who was seen in the company of that girl. If they had immediately informed the police that they noticed a similarly aged girl crying in the company of an utter stranger of that locality that cannot be brushed aside as a doubtful conduct. Either the three witnesses concocted the story falsely or what they said must be true. Why should they concoct it falsely. We are not told of any reason whatsoever for those three witnesses to bother themselves to concoct such a canard.
17. It seems that a minor discrepancy in their evidence had affected their credibility before the High Court. They said that they went to the police station on 24.12.1995, whereas PW-26 Police Inspector said that they visited the police station only on 25.12.1995. We do not attach any significance to the aforesaid discrepancy as PW-26 should have been more correct because he was speaking with the help of investigation records while the witnesses would have spoken from their memory only. Another reason advanced by the Division Bench is that when PW-3 Sayyed Niyamat went to the bereaved house he did not inform anyone in that family as to what he saw earlier. But PW-3 himself gave an explanation for it that as members of that family were then in a shock he did not venture to tell them about it at that occasion. Here also the question is not whether PW-3 should have told them despite his hesitation but whether the witness had chosen to adopt such a reticence in a situation like that. It is not for the Court to suggest that he should have divulged it to the members of the bereaved family despite his own thinking about it. At any rate we are not impressed by the aforesaid reasoning for rejecting the testimony of an important witness like PW-3.
18. The Division Bench then advanced a theory that there is "an inherent incredibility in the evidence" on the premise that a culprit kidnapping a minor girl with sinister design would normally take the precaution not to be seen by any other person on the way, but in this case the culprit along with the girl had moved from place to place in the town. We are unable to appreciate such a reasoning as proposition of human conduct. For considering that reasoning it must be remembered that Gangu would certainly have been abducted by some body (even assuming that it was not this respondent) and that person had taken the abducted girl from her house up to the farm. Unless it is suggested that there was another alternative and safer route for the culprit to take the girl unnoticed by any shopkeeper or even a pedestrian there in no rationale in the reasoning that there is "inherent incredibility" in the version that respondent would have taken the girl through this route.
19. The last reasoning of the Division Bench is based on a criticism of the modes adopted by the Executive Magistrate who held the test identification parade. The aforesaid criticism was based on the evidence of two witnesses who said that the accused were taken on foot from police station to the place where the parade was conducted and that their faces were not covered during such transit.
20. Ext 17 is the minutes of the test identification parade conducted by the Magistrate who himself was examined as PW-2. It contains the details of the steps adopted by him. Seven other persons were kept ready in the room and the witnesses were kept in another room from where they could not see the suspect Thereupon the suspect was brought from the lock up with the help of two respectable persons and all precautions were taken that the witnesses could not see the suspect during such transit. Then the suspect was permitted to stand anywhere among the 7 persons. It was thereafter that the witnesses were brought with the help of the same respectable persons and the witnesses were then asked to identify the person whom they saw on the crucial day. If potholes were to be ferreted out from the proceedings of the magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting 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. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held, vide Budhsen v. State of Uttar Pradesh, [1970] 2 SCO 128 1970 Indlaw SC 136 and Ramanathan V. State of Tamil Nadu, [1978] 3 SCC 86 1978 Indlaw SC 170.
21. When we scanned through Ex. 17 minutes of the test identification parade, we feel that the safeguards adopted by PW-2 Executive Magistrate were quite sufficient for ensuring that the parade was conducted in a reasonably foolproof manner. We feel that the Division Bench niggled on unimportant details and came to the wrong conclusion that the test identification parade was irretrievably vitiated. The reasons by which the testimony of those three witnesses had been jettisoned by the Division Bench were fatuous and we cannot support them.
22. One of the formidably incriminating circumstances against the accused was that the dead body was recovered as pointed out by the respondent. The statement of the respondent which led to the recovery of the dead body has been incorporated in Ext. 79 and the admissible portion of it reads thus :
"Her dead body is kept concealed in the field; I will take it out and produce the same; come with me."
23. But unfortunately the Division Bench of the High Court did not rely on the above circumstance on a very fragile reasoning. The first limb of that reasoning was based on a mistake committed by PW-3 Sayyed Niyamat in his evidence when he said that he saw the dead body of the child on 23.12.1995. Much strain is not required in holding that what PW-3 said should have been understood as 24.12.1995. The second limb of the reasoning is that two other possibilities could not have been ruled out. Of which one is that respondent would have seen someone else placing the dead body at that spot, and the second is that respondent would have been told by somebody else that the dead body was placed there.
24. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in S. 27 of the Evidence Act.
25. It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW-22 Dr. Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25.12.1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW-22 Dr. Nand Kumar, False answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain.
26. It is disconcerting that a case like this in which the prosecution has presented such reliable and formidable circumstances forming into a completed chain and pointing unerringly to the irresistible conclusion that the little girl Gangu was raped and killed by none other than the respondent himself, ended in unmerited acquittal from the Division Bench of the High Court. Criminal justice unfortunately became a casualty in this case when the High Curt side-stepped all such circumstances and exonerated the culprit of such a grotesque crime.
27. We, therefore, set aside the impugned judgment and restore the conviction passed by the trial court. Regarding sentence we would have concurred with the Sessions Court's view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of "rarest of the rare cases" envisaged by the Constitution Bench in Bachan Singh v. State of Punjab, [1980] 2 SCC 684 1980 Indlaw SC 586. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence u/s. 302 IPC, to imprisonment for life. The sentences imposed by the trial court on all other counts would remain unaltered. The bail bond shall stand cancelled. We direct the respondent to surrender to bail. We also direct the Sessions Judge, Wardha to take immediate and necessary steps to put the accused in jail if he is not already in jail, for undergoing the sentence imposed on him.


Soni v State of Uttar Pradesh
Supreme Court of India

6 March 1981
Cr.A. No. 252 of 1981
The Judgment was delivered by: V. D. Tulzapurkar, J.
Special leave granted.
1.  After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant.
We therefore allow the appeal and acquit the appellant.
Appeal allowed.


Wakil Singh and Others v State of Bihar
Supreme Court of India

31 March 1981
Cr.A. No. 268 of 1976
The Judgment was delivered by: FAZAL ALI, J.
1. This appeal u/s. 2 of the Supreme Court (Enlargement of the Criminal Appellate Jurisdiction) Act and also u/s. 379 of the Code of Criminal Procedure is directed against the Judgment of the Patna High Court dated April 13,  (Pat)), by which the High Court reversed the order of the Sessions Judge acquitting the appellants and convicted them u/s. 396 of the Indian Penal Code and sentenced them to imprisonment for life. The narration of the prosecution case is given in the Judgment of the High Court and it is not necessary to repeat the same here. The case arose out of a dacoity said to have been committed in the house of the complainant, PW-Darbari Sao on the night of May 24, 1965 at about 8.45 p.m. According to the prosecution some unknown persons including the appellants entered the house, assaulted inmates, killed one of them and looted away properties worth thousands of rupees. There is no clear evidence to show that the deceased Kameshwer Sao was actually killed by one of the dacoits in the course of the dacoity. Although his dead body was found but the prosecution has not been able to establish any nexus between his death and the commission of the dacoity or even his injuries. In these circumstances it is obvious that charge u/s. 396 must fail. In the instant case, however this will make no difference because after going through the judgment of the courts below and hearing the counsel for the parties, we are clearly of the opinion that the appellants are entitled to an acquittal. The four appellants were arrested between August 26 to September 2, 1965 and the first T.I. parade was held on September 4, 1965 and two other parades were held on September 8, 1965. So far as Wakil Singh is concerned, he had been identified by PWs. 2, 9 and 13. So far as PW 13 is concerned as he had not identified this appellant before the T.I. parade, he was disbelieved both by the trial Court and the High Court. The trial Court refused to act on the evidence of PW 2 also because this appellant was identified only before the committing court and not before the Sessions Court. Thus the only evidence Wakil Singh consisted of PW 9
2.  In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial Court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial Court. The High Court, however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 3 1/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness
3.  Lastly, since the High Court was reversing an order of acquittal, it failed to take into consideration the fact that having regard to there being only one witness who identified the accused concerned, the view taken by the trial Court could not be said to be reasonably possible. For these reasons, therefore, we are clearly of the opinion that the appellant who had been identified by only one witness must be acquitted. Thus, Wakil Singh, to start with, has been identified by PW 9 and for the reasons that we have stated above, it would be wholly unsafe to maintain his conviction on the basis of the evidence of PW 9 alone. Another circumstance against the prosecution, with respect to this appellant, is that although PW 9 was present on the September 4, 1965 when a T.I. parade was held, he was not asked to identify the appellant, but the witness identified the accused 4 days later that is to say on September 8, 1965. These circumstances also throw some doubt on the complicity of this appellant
4.  Similarly appellant Krishndan Singh has been identified only by PW 15 and for identical reasons which we have given in the case of Wakil Singh, it will not be possible for us to uphold the conviction of this appellant also, as his conviction is based on a single identification, particularly when he was acquitted by the trial Court
5.  As regards the other two appellants viz., Sheobalak Singh and Kuppi Singh, the High Court seems to have committed a serious error of law in convicting these appellants. It has been established that so far as Kuppi Singh is concerned he undoubtedly had smallpox marks and was identified by as many as 6 witnesses PWs. 2, 3, 5, 12, 13 and 15. The T.I. parade chart does not show that any person having smallpox marks was mixed up with this accused at the time of the parade, nor does the T.I. chart show that any precaution for concealing the pox marks was taken. The trial Court rightly pointed out that in view of the pox marks, the mistake in identification could not have been excluded. The High Court did not agree with the reasoning of the trial court because it construed the T.I. parade in a most technical fashion. It is well known that all T.I. parade contain a cyclostyled or printed certificate that necessary precautions have been taken, and the Magistrate merely signs on the dotted lines. But that by itself, would not show for the purpose of proving a criminal charge that this precaution was actually taken, unless the Magistrate himself appears as a witness and says what precautions were taken. Apart from the endorsing the certificates, the Magistrate who held the T.I. parade in this case does not state that he had taken any precaution to conceal the smallpox marks appearing on the face of Kuppi Singh by mixing other persons who had some smallpox marks.  Furthermore, the very fact that even under the stress and strain of such serious incident as the present one, as many as 6 witnesses identified Kuppi Singh without at all giving any kind of description of this accused, clearly shows that the witnesses identified him merely because of the pox marks. At any rate, here also the possibility of mistake in identification because of the pox marks cannot be reasonably excluded. For these reasons, therefore, we are unable to support the reasons given by the High Court for reversing the acquittal of Kuppi Singh also
6.  So far as Sheobalak Singh is concerned here also, it is admitted that he had a visible cut mark on the cheek and no precaution as in the case of Kuppi Singh was taken by the Magistrate either to put some person having similar marks or to conceal this cut mark at the time of identification. Furthermore, this accused has also been identified by 4 witnesses 2, 5, 9 and 16 and the possibility that he was identified because of this particular cut mark cannot be excluded
7.  We are fully satisfied that this was not a case which called for the interference of the High Court against the order of the acquittal passed by the Sessions Judge. The appeal is accordingly, allowed and the appellants acquitted of the charges framed against them. Krishnandan Singh who was on bail will now be discharged from his bail bonds and other appellants are directed to be set at liberty forthwith.
Appeal allowed.


Hasib v State of Bihar
Supreme Court of India

23 August 1971
Cr.A. No. 19 of 1967 (Cri. Appeal No. 519 of 1964, D/- 27 July 1966 - Pat.), Dt. 23 August 1971.
The Judgment was delivered by: DUA, J.
1.  Five persons were tried in the Court of the Additional Sessions Judge, First Court, Monghyr for charges under Sections 395, 307 and 398, Indian Penal Code. All of them were convicted under Section 395, Indian Penal Code and acquitted of the charge under Sec. 398, Indian Penal Code. Accused, Akal Yadav, was in addition convicted under Section 307, Indian Penal Code and was sentenced to undergo rigorous imprisonment for life under each count. The other accused persons were sentenced to undergo rigorous imprisonment for ten years each under Section 395, Indian Penal Code.
2. On appeal the High Court set aside the convictions of Akal Yadav, Anandi Yadav and Ashique Mian and allowing their appeals acquitted them. The convictions and sentences of Sheikh Hasib alias Tabarak, the appellant in this Court and of Sheikh Quddus alias Khudwa were maintained. Sheikh Hasib alias Tabarak alone has appealed to this Court with special leave u/art. 136 of the Constitution.
3.  According to the prosecution case, on January 28, 1963 at about 7.45 p.m. several dacoits had collected on P.W.D. road near Telia Talab, Monghyr Police Station mofassil and committed dacoity in respect of the properties of a number of passersby Ganesh Prasad (P.W. 1) and his brother Kamleshwar Tanti (P.W. 2) who were going together on a cycle from Monghyr to their village Nawagarhi were held up by about 15 dacoits and were deprived of several valuable articles like watch, cycle, shirt, muffler and money. Those articles were forcily snatched from them on threat of violence. They were then made to sit on one side, away from the main road. When they were sitting there, Thakur Prasad Choudhary (P.W. 6), resident of village. Garhi Rampur and Mukhia of the village Panchayat and Ram Baran Mandal (P.W. 3) also happened to come on a rickshaw from Monghyr side and while passing by the place of occurrence they too were intercepted by the dacoits and deprived of their properties. A woman named Dayabati Devi (P.W. 4) and one Prayag Narain Gupta (P.W. 5) a homeopath doctor, who also happened to pass that way in a rickshaw were also attacked by the dacoits and forcibly deprived of their belongings.
4. In the meantime Ram Baran Mandal (P.W. 3) and Thakur Prasad Choudhary (P.W. 6) somehow managed to escape in their rickshaw. When they reached Telia Talab crossing from where one road goes towards Jamalpur and another towards Bariarpur and the third one towards Monghyr, they saw a jeep car standing there with three Police Officers in uniform, a Sub-Inspector of Police, Deo Dutt Prasad Varma, (P.W. 8) and an Inspector of Police (Jadunandan Singh (P.W. 10) along with driver-constable (Bansidhar Singh. P.W. 9). Thakur Prasad Choudhary, Mukhia, narrated to them the occurrence of dacoity and the loss of his property and told them that the decoits were still busy in their nefarious activities.
5.  After giving this information he accompanied those officers in the Jeep to the place of occurrence. Ram Baran (P.W. 3) went away towards his village. Thakur Prasad Choudhary pointed out to the Police Officers the place of occurrence as soon as it became visible in the light flashed by the headlights of the Jeep. The jeep stopped near the place of occurrence and it is alleged that more than eight dacoits were found present at the spot. The Inspector (P.W. 10) ordered the constable to get down and arrest the dacoits.
6. Pursuant to this order Bansidhar, constable, got down from the jeep but one of the dacoits aimed a lathi blow at him. When the other occupants of the jeep tried to get down one of the dacoits fired at them hitting both the Inspector and the Sub-Inspector causing them bleeding injuries. The jeep then drove away towards Monghyr in order to get the Sub-Inspector and the Inspector (P.W. 8 and 10) treated in the hospital. While passing in front of the Police Station of Monghyr on their way to the Sadar Hospital, the Sub-Inspector and the Inspector informed the Policemen at the Police Station about the dacoity in question near the Telia Talab and said that since they themselves selves had sustained injuries at the hands of the dacoits they were on their way to the hospital. The dacoits had apparently disappeared in the meantime and nobody was caught at the spot.
7.  It is not necessary to state any more facts for the purpose of the present appeal. Suffice it to say that the fate of the entire prosecution case depends on the evidence regarding the identification of the persons charged. So far as the present appellant is concerned the only evidence against him is that of his identification by Jadunandan Singh, Inspector of Police (P.W. 10). The question, therefore, arises whether his testimony relating to the identification of the appellant provides evidence which, according to the settled principles, can be considered sufficient for sustaining his conviction.
8. Now, according to the High Court it was mentioned in the fard beyan (Ex. 1) which is treated as first information report, that the Inspector (P.W. 10) had identified two dacoits as belonging to village Banoudha. These two dacoits are Hasib and Ashique Mian, the conviction of both of whom was upheld by the High Court. Exhibit 1 was the statement made by S.I. Deo Dutt Prasad Varma (P.W. 8) to the Police in the hospital. The exact words used therein so far as relevant may herein be read :-
"The Inspector said that among the recognized dacoits he had recognized two dacoits well that they belonged to Banaudha a nearby village. He did not remember their names. He also said that the dacoits seemed to belong to the neighbouring villages and almost all of them were young."
9. The evidence of P.W. 8 has not been relied upon by the High Court for convicting the appellant. What is relied upon is the statement in Court of P.W. 10 because the High Court felt that it was corroborated by Ex. 1. This is what the High Court has said :-
"Appellants Hasib and Ashique Mian both belong to village Banaudha, and it was mentioned in the fard beyan (Ex. 1) that the Inspector (P.W. 10) had identified two dacoits well as belonging to village Banaudha. This description as to the residence of two of the dacoits was given before Hasib and Ashique Mian came to be arrested in connection with this case. Therefore, it is manifest that the evidence of P.W. 10 against appellant Hasib finds sufficient corroboration from the description of the culprits given in the farde beyan. That being so, I am of the opinion that the evidence of P.W. 10 against appellant Hasib can be safely acted upon. It is true that appellant Hasib had been remanded to Police custody for nearly 48 hours after his production before the Sub-divisional Magistrate on 29-1-1963. But all the while P.W. 10 was confined to the Hospital and as such he could not have the opportunity of seeing this appellant while he was in Police custody. The complicity of this appellant in the crime has thus been established beyond all, reasonable doubts."
10.  Here the High Court appears to have clearly gone wrong in law. The legal position as to the object, value and use of first information report is wellsettled. The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted.
11. It can, however, only be used as a previous statement for the purpose of either corroborating its maker u/s. 157 of the Indian Evidence Act or for contradicting him u/s. 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses. The High Court was, therefore, in error in seeking corroboration of the testimony of P.W. 10 from the F.I.R. of which he was not the maker.
12.  P.W. 10 is said to have later identified the present appellant in Court, as the person whom he had identified at the second test identification parade on the first day when he went for identifying the accused persons. That was on February 14, 1963. This is what he said in Court :-
"I 'attended' T.I. parade for two days. I 'attended' the (T.I.) parade twice on the first day and once on the second day. On the first day and at the first I identified this accused (points to accused who gives out his name as 'Akal Jadav'). He had opened fire at the time of occurrence. I identified at the second time this accused (points to accused who gives out his name as Mohammad Hasib, alias Tabarak). On the second day I identified this accused (points to one accused who gives out his name as Sheikh Quddus, alias Khudwa)."
13.  As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh, 1959 Indlaw SC 284 the substantive evidence is the statement of a witness in Court and 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. If there is no substantive evidence about the appellant having been one of the dacoits when P.W. 10 saw them on January 28, 1963 then the T.I. parade as against him cannot be of any assistance to the prosecution.
14.  But otherwise too the identification proceedings in the present case do not inspire confidence. It appears that several test identification parades were held for identifying the accused persons. So far as the present appellant is concerned P.W. 10 appears to have identified him on February 14, 1963 though the appellant had been arrested as early as January 29, 1963 at about 4.15 a.m. Now, identification parades are ordinarily held at the instance of the investigating Officer for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the persons who are alleged to have been concerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines.
15. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned, In the present case the first identification parade was held on February 6, 1963 when several accused persons were included for identification in the parade. The present appellant was not included in the parade on that day. The identification parade with respect to him was held on February 14, 1963 the reason given for this delay being that P.W. 10 was till then in the hospital.
16.  Accordingly to his own evidence in the trial Court, however, P.W. 10 admits to have been discharged from the hospital on February 9, 1963. In his statement before the committing Magistrate (which was read as evidence by the trial Court under Section 288, Criminal P.C.) he had stated that he had come out of the Hospital 7 or 8 days after his admission. It may be recalled that he was admitted in the hospital on January 28, 1963, the night of the occurrence. This would mean that he was out of the hospital on February 6, 1963. But even if he was discharged on February 9, 1963 it is wrong to say that the test identification parade could not be held before February 14, 1963 by reason of P.W. 10 being in the hospital till then. But this apart, it is not shown that this witness even though in the hospital for treatment of his injuries to his hand and face was not in a position to be taken from the hospital for identification as soon as the appellant was arrested or at least on February 6, 1963 when identification of a number of accused persons was held. We are also not satisfied about the fairness of the identification proceedings. It may be recalled that the first identification parade was held on February 6, 1963.
17. It, however, appears that because the result of this parade was not considered satisfactory by the investigating agency an application was made to the court of the magistrate stating that the identifying witnesses had got confused and, therefore, a fresh test identification parade should be held. Thereafter several identification parades were held on 14th, 21st and 28th February, 1963. This procedure only serves to give rise to grave suspicion about the bona fides of the investigating agency. And then we find from the evidence of Jhari Lal Mahto, Sub-Deputy Magistrate (P.W. 13) who had held the T.I. parade on February 14, 1963 that two identification parades were held on that day within half an hour of each other : one at 5 p.m. and the other at 5.30 p.m. At both these parades P.W. 10 was present.
18.  In the first parade the appellant is stated not to have been included in the suspects to be identified. No reason is shown for his non-inclusion in that parade. It may be recalled that both the parades were held in the sub-jail in which all the accused persons were lodged. The evidence of P.W. 13 is also somewhat unsatisfactory a cross-examination a suggestion was thrown that there was some kind of interpolation in his report of the first T.I. parade held at 5 p.m. from which it could be suspected that the appellant was present in that parade but was not identified by P.W. 10. And we are far from impressed by his testimony with respect to the precautions taken by him for fair test identification parades. In hisWhether or not the appellant was included in the suspects to be identified at 5 p.m. in either case we are unable to attach much value to his identification parade.
19. The High Court has in its judgment accepted the argument raised on behalf of the accused that they were produced in court on February 13, 1963 and has expressed its opinion that the possibility of P.W. 8 and P.W. 10 seeing the accused persons in court could not be entirely eliminated. This circumstance in our view, further weakens the value of the appellant's identification held on February 14, 1963.
20.  There is, however, also another aspect which requires to be noticed. Now, if P.W. 10 had recognised the appellant at the time and place of the occurrence as one of the two dacoits hailing from village Banaudha then clearly the identification test of the appellant by this witness can be of little value because the accused was already known to the witness. In that event there is no question of the identification parade dated February 14, 1963 being used as corroborative evidence supporting his identification in court. As a result of the foregoing discussion we find that there is no legal evidence connecting the appellant with the alleged offence in question and we have, therefore, no hesitation in acquitting him.
We accordingly allow the appeal and acquit the appellant.
Appeal allowed.


Shambhoo Nath Misra v State of U. P.
Supreme Court of India

14 March 1997
Appeal (Cr.) 318 of 1997
The Order of the Court was as follows :
Leave granted.
We have heard learned counsel on both sides.
1. This appeal by special leave arises from the judgment and order of the learned Single Judge of Allahabad High Court, made on September 31, 1995 in Criminal Revision No. 985 of 1993.
2. The appellant had laid a private complaint against R.D. Tripathi, the second respondent, for offences under Section 409, 420, 465, 468, 477A and 109 I.P.C., after examination, alleging that the second respondent and the Cashier had fabricated his signatures, drawn and misappropriated and amount of Rs. 443.90 which was due and payable to him. On the basis thereof, after recording his evidence and also of the court witness u/s. 202 Cr. P.C. 1973, the Magistrate dismissed the complaint holding that the sanction u/s. 197 of the Cr. P.C. was not obtained. Aggrieved by the order, the appellant went in revision before the High Court. The High Court recorded the finding that the second respondent was discharging his duties as a Government servant and was alleged to have misappropriated the amount in question by forging the signature of the appellant in the payment register. The High Court further observed that "the offence alleged to have been committed by the respondent is related in some manner with the discharge of his official duties. There is reasonable connection between the act and discharge of his official duty. Under these circumstances, sanction under Section 197, Cr. P.C., is necessary before prosecution of this accused". In support of it, the learned Judge-relied upon Hari Ram v. Emperor, (1939) F.C.R. p. 159, Onll's case [1948 Law Reporter 75 Indian Appeal 411948 Indlaw PC 45] and the case of B. Saha v. M.S. Kochhar, (1979) A.C.C. (16) 318. The question is : whether the view taken by the trial Court as upheld by the High Court for the aforesaid reason is correct is law?
3. S. 197 (1) postulates that "'when any person who is a public Servant not removable from his office, save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the appropriate Government/authority". The essential requirement postulated for sanction to prosecute the public servant is that the Offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of the performance of his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection u/s. 197 (1) of Cr. P. C. without previous sanction, the complaint/charge against him for alleged offence cannot be proceeded with in the trial, The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest- and sincere officer to perform his public duty honestly and to the best of his ability. The threat of persecution demoralizes the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest However, performance of Official duty Under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records finding that the crime and the official duty are not integrally connected.
4. The question is ; when the public servant is alleged to have com-mitted the offence of fabrication of record or misappropriation of public fund etc., can he be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the fake record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc- It does not mean that it is integrally connected or inseparably inter linked with the crime committed in the course of same transaction, as was believed by the learned judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.
5. The learned counsel for the respondent, Mr, Dhingra, has contended that the Magistrate came to the conclusion that it was not a part of the duty of the respondent to deal with either the preparation of the record or payment thereof It was the duty of the cashier and therefor, the learned Magistrate was right in his conclusion that the respondent had not com-mitted any offence. We desist to go into that aspect. It is made clear that we have not expressed any opinion on merits of the case. We have only dealt with the contention as the need for sanction and as to whether the sanction becomes necessary u/s. 197 (1) of Cr. P. C.
6. The appeal is accordingly allowed to the above extent. The order of the Magistrate dismissing the complaint is set aside. The complaint stands restored. The Magistrate is directed to proceed further in accordance with the law and deal with the case on merits.