Holding

The conviction was upheld because the FIR scribe was not an eye‑witness, proper precautions were taken to prevent witnesses from seeing the accused, and the violent circumstances ensured that the witnesses’ memory of the assailants remained reliable despite the delay.

Summary

The appellant, Anil Kumar, was convicted under various IPC sections for assault and murder after a violent incident in which the victim's brother and other family members were attacked. The appellant challenged the conviction on four grounds: that the FIR scribe, who was a relative of the complainant, should have been examined; that the accused’s face was not covered when taken to hospital, allowing witnesses to see him; that a 47‑day delay in the test identification parade rendered the identification unreliable; and that the eye‑witnesses’ memory of the assailants’ facial expressions would have faded. The Supreme Court held that the FIR scribe was not an eye‑witness and his non‑examination caused no prejudice, that police had taken proper precautions to keep the accused’s face concealed, and that the violent nature of the attack left a lasting impression on the witnesses, making their identification reliable despite the delay. Consequently, the Court upheld the trial and High Court judgments and dismissed the appeal.

Issues considered

The FIR scribe, being a relative of the complainant, should be examined as a material witness.
Whether failure to cover the accused’s face when taken to hospital prejudiced the accused.
Whether a 47‑day delay in conducting the test identification parade undermines the reliability of eyewitness identification.
Whether eye‑witnesses can retain a clear memory of the assailants’ facial features after such a delay.

Legislation cited

Indian Evidence Act, 1872

Subjects

identification paradeeye‑witness testimonydelay in identificationFIR scribeprejudiceIPC sections 148,149,304 Part II,323,324,325criminal convictionSupreme Court of India

Judgment

ANIL KUMAR A
V.
STATE OF U.P.

FEBRUARY 13. 2003

[S.N. VARIAVA AND B.N. AGRAWAL, JJ.] 8

Penal Code, 1860:

Sections 148, 149, 30./ Part-II, 323, 324 and 325: Accused assaulted
prosecution witness and killed his brother-Conviction by trial Court-Affirmed C
by High Court-On appeal Held, when the eye witnesses/Relatives of the
victin1 have a clear look at assailants co1nn1itting crilne, the facial expressions
would get en1bossed in their 1ne11101y and tt ould not be erased in a short
1

period of tinze-Hence evidence ·af such eye-witnesses reliable-Delay in test
identification parade ilnn1aterial-Evidence Act, 1872. D
Cri111inal trial:

Non-exan1i11ation of Hitness other than eye-1vitness-Effect on-Held,
1

no prejudice is caused to accused.

According to the Prosecution, \vhen PW2 was_ returning to his house,
E
he was intercepted and assaulted by the accused. When his younger
brother, sister and parents came to his rescue, accused assaulted them as
well. Thereafter, younger brother of PW2 succumbed to his injuries.

A complaint was lodged by the father of the deceased against 8 F
persons. Trial Court convicted and sentenced accused appellant and other
accomplice under Sections 325 r/w 149; 324 r/w 149; 323 r/w 149 IPC and
under Section 148 IPC and acquitted the remaining 6 persons. Both
accused as well as State preferred appeals before the High Court. High
Court confirmed the conviction and sentences and also concluded that an
-. offence was made out under Sections 304 Part-II r/w 149 IPC and G
convicted and sentenced both the accused persons accordingly. Hence the
present appeal.

It was contended for the accused-appellant that since the scribe of
Fill \vas relative of the complainant and knew the accused also, non-
I %7 H
1068 SUPREME COURT REPORTS f2003] 1 S.C.R.

A examination of such witness, gravely prejudiced the accused; that since
accused was taken to hospital without his face being covered, trial got
vitiated; and that delay in conducting test identification parade casts a
doubt on the genuineness of the identification parade.

Dismissing the appeal, the Court
B
HELD: Lt. The scribe of FIR was not an eye-witness. He did not
see the incident and did not know who were present or who the as_sailants
were. He only scribed what was told to him by PWI, the complainant. It
has come in the evidence of PWs.1, 2 and 4 that they did not know the
appellant prior to the incident. They therefore could not have named him
C in the FIR. Si.nee the said scribe was not an eye-witness to the incident
there \vas no necessity to examine him. He could not have stated whether
the appellant was present or not. Therefore, no prejudice has been caused
to the appellant. 11070-G, H; 1071~AJ

D 1.2. In the instant case, PWs. 8 and 9, the investigating officer and
the officer-in-charge of the police station, took the appellant in a covered
conditibn and that whilst the appellant was in jail he was not shown to
anybod~. Jn cross~examination, their testimony that they had taken t.hese
precautions, c·ould not be shaken. Thus in this case there is clear evidence·
that precautions were taken in order to ensure that the witnesses did not
E have the chance to see the appellant. 11071-D-El

L3 .. PW2,. brother of the deceased, was attacked by the appellant
as well as his accomplice. He had a clear look at his assailants. Thereafter
his younger brother came to save him and got killed. PW2 also r~ceived
serious inj11ries. These are circumstances which would impress upon the
F · mind of PW2 the facial expressions of the assailants. This impression would
not dimin_ish or disappear within a period of 47 days. Similar is the case
of other prosecution witnesses, parents of the deceased. They have .seen
the assailants attacking their sons and one of the sons getting killed. ln
their memory also the facial expressions of the assailants would get
G embossed. A mere lapse of 47 days is not going to erase the facial
expressions from their memory. All the witnesses have identified the·
appellant. Their evidence is believable. There is no infirmity in the
impugned judgment. 11073-G, H; 1074-A, Bl

Brij Mohan v. Siate of Rajasthan, AIR (1994) SC 739 and Daya Singh
H v. State of Haryana, AIR (2001) SC 1188, relied on.
ANIL KUMAR v. STATE OF U.P. [S.N. VAR!AVAJ]. 1069

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A
13911996.

From the Judgment and Order dated 22.11.1994 of the High Court of
Judicature at Allahabad in Criminal Appeal No. 3151 of 1979.

Tripurari Ray. Rakesh K. Sharma, Praveeri Swarup Prashant Choudhary B
and Pramod Swarup for the appearing parties.

The Judgment of the Court was delivered by

S.N. V ARIA VA, J. This Appeal is against a Judgment dated 22nd
November, 1994. Briefly stated the facts are as foliows: ~

On I Ith June, 1978·one Manoj Kumar (P.W.2) was returning to his
home. At that time he was way laid by Chaman (the Appellant in Criminal
Appeal Nos. 934-936 of 1995, which Appeals have been dismissed today by
a separate Judgment) and four other persons way laid him and assaulted him D
with iron bars, knives and Dand~s. On hearing his cries his younger bfother
Sanjay rushed forward to protect him and embraced Manoj in oider to sav<!
his life. The younger brother was only I 0 years old at that time. Even on.
seeing that a I 0 years old boy has embraced Manoj th·e assailants did not stop
but continued to inflict knife and Danda blows even on the young boy of 10
years. On hearing the cries of Manoj and Sanjay, their father Shri Sidheswar E
Dwivedi, mother .Snit. Kaushalya Dwivedi and sister Sangeeta rushed to ~ave
them. They were also assaulted. Thereafter other people of the public came
there and the assailants ran away.

A complaint was lodged by the father Shri Sidheswar Dwfvedi. In
the
first information report he named Chaman as having first attacked alongwith F
-~ certain unknown persons. He thereafter named certain other persons who
were supposed to have come there and helped the assailants after he reached
the spot. On the basis of this complaint an investigation was made by the
police. Eight accused were put up for trial. As Sanjay had died the charges
were under Sections 302, 323, 325 read with 149 and Section 148 of the G
Indian Penal Code.

The prosecution examined a number of witnesses of whom P.W. I, was
the father, P. W. 2, was Manoj and P. W. 4, was the mother. They were eye-
witnesses who narrated the incident and identified Chaman and the Appellant.
In spiie of detailed i:ross examination their testimony could not be shaken. H
1070 SUPREME COURT REPORTS f2003] I S.C.R.

A Their .evidence was corroborated by the evidence of the Doctor who disclosed
that Sanjay had died a horn icidal death and that Manoj, his father and the
mother had also received injuries.

After trial six persons were acquitted by the trial Cou11. Chaman and
the Appellant were convicted by the trial Cou11 under Section 325 read with
B 149 I.P.C. for which a sentence of 4 years was imposed. They were also
convicted under Section 324 read with 149 l.P.C. and a sentence of 2 years
was imposed. For offence under Sections 323 read with 149 1.P.C. a sentence···
of 6 months was imposed. For offence under Section 148 l.P.C. a sentence
of I year was imposed. All the sentences were directed to run concurrently.
c The Appellant (as well as Chaman) filed two criminal Appeals in the
High Court. The State also preferred an Appeal against the acquittal under
Section 302 read with 149 and against the acquittal of other 6 persons. The
High Court heard all these Appeals together and disposed off the same by the
impunged judgment. The High Court has confirmed the finding of the trial
D Court that the prosecution had proved its case beyond a reasonable doubt as
against Chaman and the Appellant. It has also confirmed the conviction under
Section 325 read with 149, 324 read with 149, 323 read with 149 and 148
of the Indian Penal Code. But the High Court has concluded, and in our view
rightly, that an offence was made out under Section 304 Part rr read with 149
E 1.P.C. and sentenced both Chaman and the Appellant to 5 years rigorous
imprisonment. Hence this Appeal.

Mr. Tripurari Ray has submitted that both the trial Com1 and the High
Court have erred in convicting the Appellant. I-le submitted that in the FIR
the Appellant has not been named. I-le submitted that the scribe of the FIR .....
p was one Mr. Umesh Kumar Dix it who was the nephew of the complainant.
He submitted that Umesh Kumar Dixit was a class-mate of the Appellant and
he knew the Appellant. He submitted that as Umesh Kumar Dixit knew the
Appellant he would have named the Appellant in the written complaint ifthe
Appellant had actually been present at that time. He submitted that the
prosecution did not examine Umesh Kumar Dixit and therefore the Appellant
G has been gravely prejudiced. He submitted that an adverse inference must be
drawn against the prosecution that if Umesh Kumar Dix it had been examined
the Appellant would have been able to establish that he was not present at
the time of the incident. We are unable to accept the submission. Umesh
Kumar Dixit was not an eye witness. He did not see the incident and did not
H know who were present or who the assailants were. He only scribed what
ANIL KUMAR v. STATE OF U.P. [S.N. V ARIA VA . .1. J I 071

was told to him by P. W. 4. It has come in the evidence of P. Ws. I. 2 and 4 A
: _,, that they did not know the Appellant prior to the incident. They therefore
could not have named him in the FIR. As Umesh Kumar Dixit was not an
eye-\vitness to the incident there was no necessity to exan1-ine hini. Un1esh
Kumar Dixit could have showed no light. He could not have stated whether
the Appellant was present or not. Therefore no prejudice has been caused to
the Appellant. B

II was next pointed out that the Appellant was arrested on 12th June.
1978. It was submitted that on the same day the Appellant was taken to the
hospital. It was submitted that while taking the Appellant to the hospital no
precautions were taken. It was submitted that his face was not covered. It was C
submitted that for this reason itself the trial gets vitiated. In support of this
submission reliance was placed upon the case .of S. V. Madan v. State of
Mysore, reported in [1980) I SCC 479 wherein this Court found that there
was no evidence adduced by the prosecution to show that precautions were
taken to ensure that the witnesses did not see the accused andlor that the
witnesses had no opportunity to see the accused before the identification D
parade. On this ground it was held that reliance could not be placed on an
identification parade. Thus this case was based on the fact that there was no
evidence that precautions were taken. We however note that P. Ws. 8 and 9,
i.e. the investigating officer and the officer in-charge of the police station,
have deposed that they took the Appellant in a covered condition and that E
whilst the Appellant was in jail he was not shown to anybody. In cross-
examination their testimony, that they had taken these precautions, could not
be shaken. Thus in this case there is clear evidence that precautions were
taken in order to ensure that the witnesses did not have the chance to se'e the
Appellant.
F
It was next submitted that even though the Appellant was arrested on
12th June, 1978 the identification parade was held only on 27th July, 1978.
It was submined that there was a delay of about 47 days in holding the test
identification parade. It was submitted that the test identification parade after
such a delay cannot be relied upon and on this ground also the Appellant is
entitled to be acquitted. In support of this submission reliance has been placed G
on the case of Soni v. State o[U.P., reported in [1982) 3 SCC 368. The entire
Judgment consists of one paragraph which reads as follows:

"After hearing counsel on either side we are satisfied that the
conviction of the appellant for the offence of dacoity is difficult to H
A
- ..

1072 SUPREME COURT REPORTS P003l 1 S.C.R.

A 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
B 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 acquitthe appellant."

C It is to be seen that apart from stating that delay throws a doubt on the
genuineness of the identification parade and observing that after lapse of
such a long time it would be difficult for the witness to remember the facial
expressions, no other reasoning is given why such a small delay would be
fatal.

D Reliance was also placed upon the case -0f Hari Nath v. State of U.P.,
reported in [988] l SCC 14. In this case the importance oftest identification
parade was being considered. It was held that the test identification parade
only has corroborative value and that a test identification parade should be
held with reasonable promptitude after the occurrence.

E Based upon the aforesaid authorities it was submitted that the law, as
laid down by this Court is that ifthere is delay in holding the test identification
parade then it is difficult to believe that the witnesses would remember the
facial expressions of the accused. It was submitted that the law is that such
identification becomes suspicious and the accused must be given the benefit
of'doubt. '
F
We are unable to accept these submissions. In the case of Brij Mohan
v. State. of Rajasthan reported in AIR (1994) SC 739 the test identification
parade w~s held after 3 months. The argument was that it was not possible
for the witnesses to remember, after a lapse of such time, the facial expressions
of the accused. It was held that generally with lapse of time memory of
G
witnesses would get dimmer and therefore the earlier the .test identification
parade is held it inspires more faith. It is held that no time limit could be
fixed for holding a test identification parade. It. is held that sometimes the
crime itself is such that it would create a deep impression on the minds of·
the witnesses who had an occasion to see the culprits. It was held that this·
H impression would include the facial impression of the culprits. It was held
. ANILKUMARr.STATEOFU.P.[S.N.VARIAVA.J.] 1073

that such a deep impression would not be erased within a period of3 months. A
-+ In the case of Da,1'a Singh v. State of Ha1:iww repo11ed in AIR (2001)
SC 1188 the test identification parade was held after a period of almost 8
years inasu1nch as the accused could not be arrested for a period of 7-1/2
years and after the arrest the test identifcation parade was held after a period
of 6 months. The cases of Hari Nath (supra) as well as Soni (supra) were B
relied upon on behalf of the accused in that case. Both these cases were
)
considered by this Court. The injured witnesses had lost their son and daughter-
in-law in the incident. It was pointed out that the purpose oftest identification
parade is to have the corroboration to the evidence of the eye '\vitnesses in
the form of earlier identification. It was held that the substantive evidence is C
the evid,,nce given by the witness in the Court. It was held that if that
evidence is found to be reliable then the absence of corroboration by the test
+ identification is not material. It was further held that the fact that the injured
witnesses had Jost their son and daughter-in-law showed that there were
reasons for an enduring impression of the identity of the mind and memory
of the witnesses. Reliance was also placed upon the following paragraph in D
the case of State of Maharashtra v. Suresh, reported in [2000] 1 SCC 471.

"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 E
they suspect is really the one who was seen by the1n in connection
with the com1nission of the crime. Second is to satisfy the investigating
authorities that.the suspect is the real person whom the witnesses had
seen in connection \vith the said occurrence.·'

This Court therefore concurred with the High Court that the categorical F
evidence of the witnesses received corroboration from the test identification
parade ev<en though it was held late. The conviction of the Appellants in that
case was upheld.

In the present case also Manoj was attacked by Chaman as well as the G
Appellant. He had a clear look at his assailants. Thereafter his younger brother
came to save him and in that process got killed. Manoj also received serious
,. _ injuries. These are circu1nstances which wou)d impress upon the 1nind of
Manoj the facial expressions of the assailants. This impression would not
diminish or disappear within a period of 47 days. Similar is the case of the
father and the mother of Manoj. They have seen the assailants attacking their H
1074 SUPREME COURT REPORTS f2003] I S.C.R.

. ·· A sons and one of the sons getting killed. In their memory also the facial
expressions of the assailants would get embossed. A mere lapse of 47 days
is not going to erase the facial expressions from their memory.

All these witnesses have identified the Appellant. We are in agreement
with the trial Court as well as the Appellate Cour1 that their evidence is
B believable. In this view of the matter we see no infirmity in the impugned
Judgment. We see no reason to interfere. The Appeal stands dismissed. The
bail bond stands ·cancelled. The Appellant should be taken into custody
forthwith to serve out the remaining period of sentence.

S.K.S. Appeal dismissed.