MD. KALAM @ ABDUL KALAMversusSTATE OF RAJASTHAN

                                                                         ..,

                         [.2008) 5 S.C.R. 22

                                                                    -\
A                MD. KALAM @ ABDUL KALAM
                                v.
                     STATE OF RAJASTHAN
                (Criminal Appeal No. 489 of 2008)
                         MARCH 14, 2008
B
       (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

        Penal Code, 1860 - s.395 - Robbery by accused and
  others from the house of complainant - Conviction u/s. 395
c on basis of test identification parade - Challenge to, by
  accused - Held: Accused was correctly identified by
  complainant in test identification parade - Complainant had
  ample opportunity to identify the accused - He was believed
  in respect of identification of other accused persons who faced
  trial earlier and on basis thereof the accused persons were
D
  convicted u/s 395 by courts below- Hence, order of conviction
  and sentence of accused suffers from no infirmity and thus,
  upheld - Test identification parade.
       Evidence Act, 187.2 - s. 9 - Test identification parade -
E Nature, object and nec6'ssity of - Explained.
       According to the prosecution case, at mid-night the
  appellant and others looted gold and silver ornaments,
  coins and cash from the house of complainant-PW3 and
  his wife-PW1 by threatening them at gun point. They tied
F the servant, PW-3 and PW-1 and bolted them. The
  miscreants stayed in the house for about an hour. A case          r
  for offence u/s 395 IPC was registered against the
  appellant and others. The appellant was arrested.
  Thereafter, test identification parade was conducted. On
G completion of investigation, the police submitted charge-
  sheet against the appellant. Trial Court convicted the
  appellant for offenc1~ punishable u/s 395 IPC and
  sentenced him to rigo1rous imprisonment for ten years.
  Appellant challenged the possibility of identification
H                               22
                 MD. KALAM @ABDUL KALAM v. STATE OF                 23
                             RAJASTHAN

J     /'-   before the High Court. It was contended that there was A
            possibility of the appellant having been shown to the
            complainant and his wife; and that the Test Identification
            Parade was done after a period of over 7 days. High Court
            held that it was crystal clear that PW-3 had ample
            opportunity to identify the appellant; that the said witness B
    f       was believed in respect of the identification of three other
            accused persons who had earlier faced trial and had been
            convicted u/s 395 IPC and on appeal High Court upheld
            their conviction. Hence the present appeal.
                 Appellant-accused contended that only on the basis      c
            of identification by PW-3 the conviction should not have
            been recorded; and that PW-3 had accepted that his wife-
            PW-1 had not gone for the identification.
                 Dismissing the appeal, the Court
                                                                         D
                 HELD: 1.1 Identification tests do not constitute
            substantive evidence. They are primarily meant for the
            purpose of helping the investigating agency with an
            assurance that their progress with the investigation into
            the offence is proceeding on the right lines. The            E
            identification can only be used as corroborative of the
            statement in court. [Para 7] [29-E]
                  Matru v. State of UP. 1971 (2) SCC 75; Santokh Singh
            v. lzhar Hussain 1973 (2) SCC 406 - relied on.
                                                                        F
                 1.2 The necessity for holding an identification parade
            can arise only when the accused are not previously known
            to the witnesses. The whole idea of a Tl parade is that
            witnesses who claim to have seen the culprits at the time
            of occurrence are to identify them from the midst of other
                                                                        G
            persons without any aid or any other source. The test is
            done to check upon their veracity. In other words, the main
            object of holding an identification parade, during the
' i         investigation stage, is to test the memory of the witnesses
            based upon first impression and also to enable the
                                                                        H
    24       SUPREME COURT REPORTS                [2008]5 S.C.R.


A prosecution to decide whether all or any of them could
  be cited as eyewitnesses of the crime. The identification
  proceedings are in the nature of tests and significantly,
  therefore, there is no provision for it in the Code and the
  Evidence Act. It is desirable that a test identification parade
s should be. conducted as soon as after the arrest of the
  accused. This becomes necessary to eliminate the
  possibility of the accused being shown to the witnesses
  prior to the test identification parade. This is a very
  common plea of the accused and, therefore, the
c prosecution has to be cautious to ensure that there is no
  scope for making such allegation. If, however,
  circumstances are beyond control and there is some
  delay, it cannot be said to be fatal to the prosecution.
  [Para 7] [29-F, G, H; 30-A, B, C]
D      1.3 The substantive evidence is the evidence of
  identification in Court. This is well settled from the clear
  provisions of section 9 of the Evidence Act, 1872 .The
  factsj which establish the identity of the accused persons,
  are relevant under section 9 of ~he Act. As a general rule,
E the substantive evidence of a witness is the statement
  madedn 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 a
  prior test identification, therefore, is to test and strengthen
F 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.
G This rule of prudence, however, is subject to exceptions,
  when, for examp!e, the Court is impressed by a particular
  witness on whose testimony it can safely rely, without
  such or other corroboration. The identification parades
  belon9 to the stage c>f investigation, and there is no
  provision in the Code. which obliges the investigating
H
              MD. KALAM @ ABDUL KALAM v. STATE OF                  25
                          RAJASTHAN
    l
        agency to hold or confers a right upon the accused to A
        claim, a test identification parade. They do not constitute
        substantive evidence and these parades are essentially
        governed bys. 162 Cr.P.C. Failure to hold a Tl parade
        would not make inadmissible the evidence of identification
        in Court. The weight to be attached to such identification B
't      should be a matter for the Courts of fact In appropriate
        cases it may accept the evidence of identification even
        without insisting on corroboration. [Para 8] [30-C-H;
        31-A]
             Kanta Prashad v. Delhi Administration AIR 1958 SC 350;      c
        Vaikuntam Chandrappa and Ors. v. State of Andhra Prade.sh
        AIR 1960 SC 1340; Budhsen and another v. State of UP AIR
        1970 SC 1321; Rameshwar Singh v. State of Jammt.i and
        Kashmir AIR 1972 SC 102 - relied on.
                                                                         D
             1.4 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 pers.on
        concerned, if the identification is made for the first time in   E
        Court. [Para 12] [33-C, D]
             Jadunath Singh and another v. The State of Uttar Pradesh
        1970 (3) SCC 518; Parkash Chand Sogani v. The State ,of
        Rajasthan (Criminal Appeal No. 92of1956 decided by S.C. F
        on January 15, 1957; Harbhajan Singh v. State ofJammu
        and Kashmir 1975 (4) SCC 480; Ram Nath Mahto v. State of
        Bihar 1996 (8) SCC 630; Suresh Chandra Bahri v. State of
        Bihar 1995 Supp (1) SCC 80; State of Uttar Pradesh v. Boota
        Singh and Ors. 1979 (1) SCC 31; Ramanbhai Naranbhai Patel
                                                                      G
        and Ors. v. State of Gujarat 2000 (1) SCC 358; Ma/khansingh
        and Ors. v. State of M.P 2003 (5) SCC 746; Munshi Singh
        Gautam (dead) and Ors. v. State of M.P 2005 (9) SCC 631 -
i       referred to.
             2.1 The accused was arrested on 27.3.1998 and on            H
    26       SUPREME COURT REPORTS                 [2008) 5 S.C.R.


A 28.3.1998 the accused was produced by the SHO at the
  residence of Additional Chief Judicial Magistrate and
  prayer was made for police custody remand. On the
  application for remand, the Magistrate allowed the police
  custody till 31.3.1998. On 31.3.1998 the SHO again
B produced the appellant before the Magistrate and on both
  occasions the Magistrate recorded that the accused was
  produced 'Baparda'. The T1 Parade was held on 3.4.1998
  and the. appellant and other accused were correctly
  identified by PW-3. The evidence of PW12-Judicial
C Magistrate shows that on 3.4.1998 he was working as
  Judicial Magistrate anid the accused-appellant alongwith
  others were brought for the T1 Parade. PW-3 correctly
  identified the appellant. It is also specifically stated in his
  evidence that it was not correct to say that the accused
  'might have told to him that accused was shown to the
0
  witness earlier' (Para 6] (29-A, B, C, D]
      2.2 In view of the evidence which the. trial court and
  the High Court have analysed and the identification by
  PW-3 in the Tl Parade, there is no infirmity in the
E conclusions of guilt of the accused. The appellant's
  conviction is accordingly maintained. The sentence alse>
  does not warrant interference. (Para 18] (36-8]
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 489 of 2008.
F
          From the Judgment and order dated 14/9/2004 of the High
    Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B.
    Crl. Appeal No. 326/2003.
         Darshan Singh Chawla (A.C.), for the Appellant.
G
         Jatinder Kumar Bhatia for the Respondent.
         The Judgment of the Court was delivered by
         DR. ARIJIT PASAYAT, J. 1. Leave granted.
H        2. Challenge in this appeal is to the order passed by a
                       MD. KALAM @ABDUL KALAM v. STATE OF                        27
                         RAJASTHAN [DR. ARIJIT PASAYAT, J.]
            f    learned Single Judge of the Rajasthan High Court, Jaipur Bench.       A
                 Challenge in the appeal before the High Court was to the
                 judgment and order dated 10.4.2002 passed by learned
                 Additional Sessions Judge (Fast Track) Class II, Jaipur. By the
                 said judgment, the appellant was convicted for offence
J                punishable under Section 395 of the Indian Penal Code, 1860           B
 '
_.(.        ~-
                 (in short 'IPC'). He was sentenced to undergo rigorous
                 imprisonment for 10 years and to pay a fine of Rs.1,000/- with
                 default stipulation.

                      3. Background facts in a nutshell are as follows:
                                                                                       c
                       In the intervening night of 8-91h May, 1994 when Vishwas
                 (PW-3) and his wife Re nu Jain (PW-1) were sleeping in their
                 house situated in Mauji Colony, Malviya Nagar, Jaipur, five
                 persons entered the house and tied their servant Chaturbhuj
                 who was sleeping in the basement of the house. Thereafter, the
                                                                                       D
                 accused also tied the mouth, hands and legs of Vishwas Jain
                 (PW-3) and his wife Renu (PW-1) and then bolted them inside
                 the bathroom and having threatened them at the point of pistal
                 and knife, the accused looted the gold and silver ornaments,
                 coins and cash. The miscreants stayed in their house for about
                 an hour. Complainant Vishwas managed to come out of the               E
                 bathroom through a window and then telephonically informed
                 the police personnel of Police Station, Malviya Nagar, Jaipur.
                 On receiving the information, the police party reached the house
                 of complainant, where complainant submitted a written report,
                 whereupon a case for offence under Section 395 IPC was                F
                 registered.
                      At the very outset it may be stated that case was registered
                 against five accused. The investigating agency arrested three
                 accused, namely, Mohd. Babul, Mohd. Jalal and Mohd. Ansari
                                                                                       G
                 and after completion of investigation submitted charge sheet
                 against them for offence under Section 395 IPC. At the
       -~        conclusion of trial, the leaned trial Judge vide its judgment dated
            -t   31.3.1997 held the accused appellant guilty and accordingly
                 convicted and sentenced them. These three accused challenged
                                                                                       H
    28       SUPREME COUHT REPORTS                  [2008] 5 S.C.R.


A their conviction by filing appeals before the High Court. Vide       -"
  judgment dated 13.4.1998 the High Court dismissed the appeals
  of Mohd. Jalal and Mohd. Babul and maintained their conviction
  under Section 395 IPC and partly allowed the appeal of accused
  Ansari by altering his conviction from Section 395 IPC to Section
B 411  IPC. Investigation as against the appellant and co-accused            l
  Saidulla was kept pending under Section 173(8) of the Code of
                                                                       _,,
  Criminal Procedure, 1973 (in short the 'Code'). Appellant Mohd.
  Kalam was arrested on 27.3.1998. Co-accused Saidulla was
  also arrested but he absconded during trial and is still
c absconding.
          After arrest, Test Identification Parade was conducted and
    after completion of investigation, police submitted charge sheet
    against the appellant.
        The basic challenge before the High Court was to the
D
  possibility of identification. With reference to the statement of
  Renu Jain (PW-1) and Vishwas Jain (PW-3) it was contended
  that there was possibility of the appellant having been shown to
  the complainant and his wife. It- was stated that the Test
  Identification Parade (in short 'Tl Parade') was done after a
E period of over 7 days. High Court did not accept the plea. It held
  that the trial Court had analysed this aspect. The High Court
  also considered the evidence of PWs 1 and 3 and came to
  hold that it was crystal clear that PW-3 had ample opportunity to
  identify the appellant. It was also noted that the said witness
F was believed in respect of the identification of three other
  accused persons who had earlier faced trial and had been
  convicted for offence punishable under Section 395 IPC and
  on appeal their conviction had been upheld by the High Court.
  The appeal was accordingly dismissed.
G
          4. Learned counsel for the appellant submitted that only
    on the basis of identification by PW-3 the conviction should not
    have been recorded. It was pointed out that PW-3 had accepted
    that his wife, PW-1 had not gone for the identification.                 '
                                                                             I


                                                                       -r
H        5. Learned counsel for the respondent-State supported the
                MD. KALAM @ABDUL KALAM v. STATE OF                           29
                  RAJASTHAN [DR. ARIJIT PASAYAT, J.]

          judgment of the trial Court.                                             A
                6. The Tl Parade was done on 3.4.1998, the accused was
          arrested on 27.3.1998 and on 28.3.1998 the accused was
          produced by the SHO at the residence of Additional Chief
          Judicial Magistrate No.6 and prayer was made for police custody
          remand. On the application for remand, the Magistrate allowed            B
          the police custody till 31.3.1998. On 31.3.1998 the SHO again
          produced the appellant before the Magistrate and on both
          occasions the Magistrate recorded that the accused was
          produced 'Baparda'. The Tl Parade was held on 3.4.1998 and
          the appellant and other accused were correctly identified by PW-         c
          3. The evidence of Shri Ratish Kumar Garg (PW-12) the Judicial
          Magistrate, First Class, Jaipur shows that on 3.4.1998 he was
          working as Judicial Magistrate and on the direction of the Chief
          Judicial Magistrate, Jaipur the accused-appellant alongwith
          others were brought for the Tl Parade. Vishwas Jain (PW-3)               D
          correctly identified the appellant. It is also specifically E"tated in
     ..   his evidence that it was not correct to say that the accused "might
          have told to him that accused was shown to the witness earlier."
                7. As was observed by this Court in Matru v. State of UP
          (1971 (2) sec 75) identification tests do not constitute                 E

-I
          substantive evidence. They are primarily meant for the purpose
          of helping the investigating agency with an assurance that their
          progress with the investigation into the offence is proceeding
          on the right lines. The identification can only be used as
          corroborative of the statement in court. (See Santokh Singh v.           F
          lzhar Hussain (1973 (2) SCC 406). The necessity for holding
     -·   an identification parade can arise only when the accused are
          not previously known to the witnesses. The whole idea of a test
          identification parade is that witnesses who claim to have seen
          the culprits at the time of occurrence are to identify them from         G
          the midst of other persons without any aid or any other source.
          The test is done to check upon their veracity. In other words, the
          main object of holding an identification parade, during the
     -r   investigation stage, is to test the memory of the witnesses based
          upon first impression and also to enable the prosecution to              H
    30        SUPREME COURT REPORTS                   (2008] 5 S.C.R.


A decide whether all or any of them could be cited as eyewitnesses
  of the crime. The identification proceedings are in the nature of
  tests and significantly, therefore, there is no provision for it in
  the Code and the Evidence Act. It is desirable that a test
  identification parade should be conducted as soon as after the
B arrest of the accused. This becomes necessary to eliminate
  the possibility of the accused being shown to the witnesses prior
  to the test identification parade. This is a very common plea of
  the accused and, therefore, the prosecution has to be cautious
  to ensure that there is no scope for making such allegation. If,
c however, circumstances are beyond control and there is some
  delay, it cannot be said to be fatal to the prosecution.
        8. 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 Indian Evidence Act,. 1872 (in
D short 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
E 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 a 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
F 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 1:!xceptions, when, for example, the Court
  is impressed by a particular witness on whose testimony it can
G safely rely, without such or other corroboration. The identification
  parades belong to the stage of investigation, and there is no
  provision in the Code which obliges the investigating agency to
  hold or confers a ri9ht upon the accused to claim, a test
  identification parade. They do not constitute substantive
  evidence and these parades are essentially governed by
H
          MD. KALAM @ABDUL KALAM v. STATE OF                    31
            RAJASTHAN [DR. ARIJIT PASAYAT, J.]

'    Section 162 of the Code. Failure to hold a test identification A
     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 v. B
     Delhi Administration (AIR 1958 SC 350), Vaikuntam
     Chandrappa and others v. State of Aodhra Pradesh (AIR 1960
     SC 1340), Budhsen and anotherv. State of UP (AIR 1970 SC
     1321) and Rameshwar Singh v. State of Jammu and Kashmir
     (AIR 1972 SC 102).                                              c
           9. In Jadunath Singh and another v. The State of Uttar
     Pradesh (1970) 3 SCC 518), 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 D
~    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 E
     of Bewar. This Court noticed the observations in an earlier
     unreported decision of this Court in Parkash Chand Sogani v.
     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 F
          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 G
          Manak Chand and he identified him as such. These
          circumstances are quite enough to show that the absence
-r        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 H
    32        SUPREME COURT REPORTS                   (2008) 5 S.C.R.


A        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
B        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
c        (supra) (AIR Cri LJ), 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
D
         that the witnesses did not know the accused previously,
         the prosecution would run the risk of losing its case."

           11. In Harbhajan Singh v. State of Jammu and Kashmir
    (1975) 4 sec 480), though a test identification parade was not
E   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 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
F   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:-
G        "ln 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
H        the scene immediately after the occurrence shows that
               MD. KALAM @ABDUL KALAM v. STATE OF                          33
                 RAJASTHAN [DR. ARIJIT PASAYAT, J.]

              his story cannot be true. As observed by this Court in             A
              Jadunath Singh v. State of UP (AIR 1971 SC 3~)
              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            B
              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           c
              to the implication of the appellant."

               12. 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        D
         to rememberthe person concerned, ifthe identification is made
         for the first time in Court.
               13. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC
         630) this Court upheld the conviction of the appellant even when
         the witness while deposing in Court did not identify the accused        E
         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 demeanor 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          F
         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.                                                           G

              14. In Suresh Chandra Bahri v. State of Bihar (1995 Supp
     t   (1) sec 80), 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
                                                                                 H
    34        SUPREME COUHT REPORTS                    [2008) 5 S.C.R.


A concerned then identification of the accused by the witness soon
  after his arrest is of great importance because it furnishes an
  assurance that the investig1ation is proceeding on right lines in
  addition to furnishing corroboration of the evidence to be given
  by the witness later in Count at the trial. From this point of view it
B 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 identific:ation 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
c 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
D        which fact may do away with the necessity of a Tl parade."
         15. In State of Uttar Pradesh v. Boota Singh and others
    (1979 (1) SCC 31), 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
E of time, in broad daylight, 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.
                                                                               ,....
        16. In Ramanbhai Naranbhai Patel and others v. State of                '
F   Gujarat (2000 (1) SCC 358) 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
G        the names of the accused to the witnesses. Under these
         circumstances, identification of such a named accused



H
         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.) v. V C. Shukla
                                                                           i
                                                                               -
     MD. KALAM @ ABDUL KALAM v. STATE OF                     35
       RAJASTHAN [DR. ARIJIT PASAYAT, J.]

     (AIR 1980 SC 1382) wherein also Fazal Ali, J. speaking A
     for a three-Judge 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 B
~
     confined to the nature of the evidence deposed to by the
     said eye-witnesses. 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 eye-witness identifying the accused would c
     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
                                                                   D
     of Rajesh Govind Jagesha v. State of Maharashtra (AIR
     2000 SC 160) and State of H.P v. Lekh Raj (AIR 1999
     SC 3916), 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 E
     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 F
""   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 eye-witnesses
     were seriously injured and they could have easily seen the
     faces of the persons assaulting them and their appearance G
     and identity would well within 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."                                              H
    36         SUPREME COURT REPORTS                 [2008] 5 S.C.R.


A         17. These aspects were also highlighted in Malkhansingh
    and Others v. State of M.P (2003 (5) SCC 746) and Munshi
    Singh Gautam (dead) and Ors. v. State of M.P (2005 (9) SCC
    631).
       18. In view of thE3 evidence which the trial Court and the
B High Court have analysed and the identification by PW-3 in the
  Tl Parade, there is no infirmity in the conclusions of guilt of the
  accused. The appellant's conviction is accordingly maintained.
  The sentence also doies not warrant interference.
c          19. The appeal is without merit and is dismissed.
    N.J.                                        Appeal dismissed.




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