Supreme Court of India
RAJAversusSTATE BY THE INSPECTOR OF POLICE
- Citation
- 2019 INSC 1346
- Decided
- 10 December 2019
- Disposal
- Dismissed
Holding
The Court affirmed the convictions, holding that the eyewitness identifications were reliable and the delay or alleged irregularities in the TIP did not invalidate the prosecution's case.
Summary
The case involved seven accused of a dacoity during which five eye‑witnesses were seriously injured. All six of the accused (Nos.1‑6) were identified by the injured witnesses in a Test Identification Parade (TIP) and were convicted under Sections 394, 395, 396 and 449 of the IPC; accused No.7 was acquitted. On appeal, the accused argued that the TIP was held a month after arrest, that the witnesses had been shown the accused in police custody and that photographs had been published, rendering the identification unreliable. The Supreme Court held that the TIP, even though delayed, was not fatal to the prosecution because the witnesses had sustained multiple close‑range injuries, giving them an enduring impression of the assailants. The Court found no infirmity in the eyewitness testimony, held that identification in court is the substantive evidence, and affirmed the convictions. The appeals were dismissed.
Issues considered
- The reliability of eyewitness identification despite alleged delay in holding a Test Identification Parade.
- Whether exposure of witnesses to the accused in custody or to photographs undermines the identification evidence.
- Whether a delay of about one month in conducting the TIP is fatal to the prosecution.
- The necessity of TIP corroboration when the witnesses have sustained injuries that provide an enduring impression.
- Whether the conviction can stand on the basis of court identification alone without a TIP.
Legislation cited
- Code of Criminal Procedure, 1973s. 162
- Indian Evidence Act, 1872s. 8, s. 9
- Indian Penal Code, 1860s. 394, s. 395, s. 395/397, s. 396, s. 449
Subjects
eye‑witness identificationtest identification paradedelay in identificationcorroboration of evidenceIPC sections 394 395 396 449evidence lawconviction affirmed
Judgment
[2019] 17 S.C.R. 1187 1187
RAJA A
v.
STATE BY THE INSPECTOR OF POLICE
(Criminal Appeal No.740 of 2018 Etc.)
DECEMBER 10, 2019 B
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Penal Code,1860:
ss. 394, 396, 449, 395/397 – Prosecution under – Of seven
accused – Five injuredeye-witnesses – Accused Nos.1 to 6 were C
identified in Test Identification Parade by all the eye-witnesses –
Conviction by trial court of the six accused and accused No.7
acquitted – High Court affirmed the order of trial court – Appeal
to Supreme Court by the convicted accused – Held: In the
circumstances of the case, the presence and participation of
accused Nos. 1 to 6 stood proved through eye-witness account – D
There is no infirmity in the evidence of identification by the eye-
witnesses – Conviction affirmed.
Test Identification Parade(TIP):
Evidentiary value of – TIP which is part of investigation, E
affords a platform to lend corroboration to the ultimate statements
made by the witness before the court – Weightage to such TIP is
to be considered in the facts and circumstances of each case – In
cases where material on record sufficiently indicates the reason for
“gaining an enduring impression of the identity on the mind and
memory of the witnesses”, non-holding of TIP in such cases would F
not be fatal to prosecution case.
Dismissing the appeals, the Court
HELD: 1.1 What is substantive piece of evidence of
identification of an accused, is the evidence given during the
G
trial. However, by the time the witnesses normally step into the
box to depose, there would be substantial time gap between the
date of the incident and the actual examination of the witnesses.
If the accused or the suspects were known to the witnesses from
before and their identity was never in doubt, the lapse of time
may not qualitatively affect the evidence about identification of H
1187
1188 SUPREME COURT REPORTS [2019] 17 S.C.R.
A such accused, but the difficulty may arise if the accused were
unknown. In such cases, the question may arise about the
correctness of the identification by the witnesses. The lapse of
time between the stage when the witnesses had seen the
accused during occurrence and the actual examination of the
witnesses may be such that the identification by the witnesses
B
for the first time in the box may be difficult for the court to place
complete reliance on. In order to lend assurance that the
witnesses had, in fact, identified the accused or suspects at the
first available opportunity, the TIP which is part of the
investigation affords a platform to lend corroboration to the
C ultimate statements made by the witnesses before the Court.
However, what weightage must be given to such TIP is a matter
to be considered in the facts and circumstances of each case.
There is no hard and fast rule about the period within which the
TIP must be held from the arrest of the accused. [Para 15] [1198-
G-H; 11998-A-C]
D
1.2 If the material on record sufficiently indicates that
reasons for “gaining an enduring impression of the identity on
the mind and memory of the witnesses” are available on record,
the matter stands in a completely different perspective. In such
cases even non-holding of identification parade would not be fatal
E to the case of the prosecution. In the present case, in view of
the fact that each of the eyewitnesses had suffered number of
injuries in the transaction, it can safely be inferred that every
one of them had sufficient opportunity to observe the accused
to have an enduring impression of the identity of the assailants.
F It is not as if the witnesses had seen the assailants, in a mob
and from some distance. Going by the injuries, the contact with
the accused must have been from a close distance. [Para 18]
[1205-G-H; 1206-A]
1.3 Furthermore, in the present case all the accused were
arrested on 21.06.1999 except Accused No.6 who surrendered
G
before the Magistrate on 22.06.1999 and was remanded to
judicial custody. After securing permissions from the Magistrate,
the police custody of Accused No.6 was obtained on 01.07.1999
and the TIP was held on 01.07.1999 itself. There was, thus, no
delay on part of the investigating machinery in getting TIP held
H on 01.07.1999. [Para 19] [1206-B]
RAJA v. STATE BY THE INSPECTOR OF POLICE 1189
1.4 With respect to PWs 1, 2 and 3, though there is some A
room to say that the accused were shown to the witnesses while
they were in custody, that part by itself may not be sufficient.
Testimonies of PWs 4 and 5 stand on a different footing. [Para
21] [1206-G-H; 1207-A]
1.5 The facts on record thus indicate with clarity that: (a) B
There was no delay in holding the test identification parade and
the delay, if any, was attributable to the fact that one of the
accused was in judicial custody whose presence had to be
secured only after appropriate permissions from the court; (b)
It is not the case of the accused that Accused No.6 was ever C
shown to any of the witnesses. The test identification parade of
Accused No.6 has no infirmity on any count and all the witnesses
consistently identified said Accused No.6; (c) Out of five injured
witnesses, two had completely denied that either the accused
or their photographs were shown to the witnesses, while other
three did accept the suggestion in that behalf; and (d) All the D
witnesses were injured in the transaction with number of injuries.
It can, therefore, safely be stated that every one of them had
adequate and proper opportunity to observe the features of each
of the accused. [Para 22] [1213-C-F]
Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 E
: [2010] 4 SCR 103 – relied on.
Pramod Mandal v. State of Bihar (2004) 13 SCC
150 : [2004] 4 Suppl. SCR 479 ; Wakil Singh v. State
of Bihar (1981) Suppl. SCC 28 ; Subhash v. State of
Uttar Pradesh (1987) 3 SCC 231 ; Soni v. State of F
Uttar Pradesh (1982) 3 SCC 368 ; Daya Singh v. State
of Haryana (2001) 3 SCC 468 : [2001] 1 SCR 1115
– referred to.
2. Considering the totality of circumstances on record, the
presence and participation of the Accused Nos.1 to 6, proved G
through the eyewitness account. There is no infirmity in the
evidence of identification by PWs 1 to 5. Consequently, the
Appellants were rightly found guilty of the offences with which
they were charged. Their conviction and sentence is affirmed.
[Para 23, 24, 25] [1213-G; 1214-B] H
1190 SUPREME COURT REPORTS [2019] 17 S.C.R.
A Case Law Reference
[2004] 4 Suppl. SCR 479 referred to Para 16
(1981) Suppl. SCC 28 referred to Para 16
(1987) 3 SCC 231 referred to Para 16
B (1982) 3 SCC 368 referred to Para 16
[2001] 1 SCR 1115 referred to Para 17
[2010] 4 SCR 103 referred on Para 21
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.740 of 2018
C
From the Judgment and Order dated 27.04.2016 of the High
Court of Judicature at Madras in D.B. Criminal Appeal No. 604 of
2012
With
D Criminal Appeal Nos. 1608-1609 of 2018.
Gopal Shankaranarayan, Sr. Adv., Rahul Shyam Bhandari,
Konark Tyagi, Ms. Bhavya Vijay Tangri, K. Paari Vendhan, Prabhu
Ramasubramanian, Vishnu Unnikrishnan, William Vinoth Kr, Vishal
Sinha, Advs. for the Appellant.
E M. Yogesh Kanna, S. Raja Rajeshwaran, Misha Aggarwal, Advs.
for the Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Criminal Appeal No. 740 of 2018 (preferred by original
F
Accused No. 1) and Criminal Appeal Nos. 1608-1609 of 2018
(preferred by original Accused Nos. 2, 3, 5 and 6) challenge the common
judgment and order dated 27.04.2016 passed by the High Court of
Judicature at Madras dismissing Criminal Appeal Nos. 604 of 2012 and
92 of 2013 preferred by said accused as well as original Accused No.
G 4 (who is stated to have expired since then).
2. The case of the prosecution as set out in paragraphs 2.1 to
2.3 of the judgment under appeal is as under:-
“… …Mr. Sengoda Goundar was the father of P.Ws. 1 and 3
and husband of P.W.2. P.W.4 is the wife of P.W.3 and the
H daughter-in-law of the deceased. P.W.5 is the grandson of the
RAJA v. STATE BY THE INSPECTOR OF POLICE 1191
[UDAY UMESH LALIT, J.]
deceased and P.W.2. P.Ws. 3 and 4 had a child also and all of A
them were living together under one roof in Nallavumpatti village.
2.2 On 27.05.1999, P.Ws. 1 to 5, after having their dinner, had
fallen asleep. The house of P.W.1 and others is facing towards
west. P.W.1 was sleeping in the room situated on the northern
portion of the house. P.Ws. 3 and 4 along with the child were B
sleeping in the room situated on the southern portion of the house.
P.W.5 was sleeping on the pial situated on the veranda in front
of the said house. Just opposite to the said house, on the western
side, the tractor shed belonging to them is situated. The deceased
Sengoda Goundar and his wife (P.W.2) were sleeping in the said
tractor shed. C
2.3 Around 09.30 p.m., they went to the respective place to sleep.
When they were fast asleep, around 01.00 a.m. on 28.05.1999,
these appellants (accused 1 to 6) came to the house of the
deceased in order to commit dacoity. They first went into the
tractor shed and started mounting attack with deadly weapons D
on the deceased. The deceased cried for help which awakened
P.W.2. These accused indiscriminately attacked P.W.2 also. She
raised alarm and cried for help. On hearing the cry of the
deceased and P.W.2, P.W.1 who was sleeping in the room
situated on the western portion of the house, opened the main E
door from inside and came out. On seeing him, some of the
accused attacked him with deadly weapons like knife and
wooden log. Since the attack was so violent, unable to bear the
same and in order to avoid further blows being made, P.W.1
crying for help, tried to rush inside the house. By the time, on
hearing the alarm raised, P.W.3 came out of the house. Some F
of the accused, attacked him with weapons. He sustained
bleeding injuries. With a view to save himself from further attack,
he rushed into the house and went into the room where his wife
was sleeping. The assailants did not stop. They gave a chase,
entered into the said room and indiscriminately attacked P.W.3 G
and his wife (P.W.4) with weapons. Both sustained a number
of bleeding injuries. P.W.5 who was sleeping at the Pial,
awakened by the cry, rushed out. He was also attacked. Raising
alarm, he rushed towards the house of one Thaluka Goundar.
These assailants, barged into the house, looted the properties.
Number of jewels worn by the witnesses were snatched away H
1192 SUPREME COURT REPORTS [2019] 17 S.C.R.
A by the accused. They broke open the steel bureau in the house
and committed theft of the jewels. All happened with a short
time. Even before the villagers could gather at the place of
occurrence, the accused fled away from the scene of occurrence
with decamped valuable jewels and other articles. P.Ws. 1 to 5
and the deceased were struggling for life due to the bleeding
B
injuries. The villagers immediately rushed all of them to the
Government hospital at Uthangarai.”
3. All the victims were taken to the hospital, where Sengoda
Goundar was declared dead. The following injuries were found on the
person of the deceased.
C
“1. Abrasion 4 cm x 4 cm left shoulder.
2. Contusion 10 cm x 10 cm left wrist.
3. Contusion 10 cm x 10 cm right wrist.
4. Lacerated wound 1 cm x bone deep horizontal middle
D
head.
5. Lacerated wound 10 cm x 1 cm bone deep oblique left
side head.”
4. The other injured persons were also examined the same day
E before 6.00 a.m.
A) PW1- Sundararajan had following injuries: -
“1. An abrasion of 4 x 4 cm on the left shoulder
2. A lacerated wound of 10 x 10 cm on the left elbow.
F 3. A lacerated wound of 10 x 10 cm on the right elbow.
4. A lacerated wound of 10 x 1 cm to bone deep in the
centre of the head.
5. A lacerated wound of 10 x 1 cm to bone deep in the
left side of the head.”
G
B) PW2-Irusayi was found to be having following injuries:-
“1. Lacerated wound 2 cm x 1 cm x 1 cm at right thumb
hand.
2. Lacerated wound 6 cm x 1 cm x bone deep on the left
H side of forehead.
RAJA v. STATE BY THE INSPECTOR OF POLICE 1193
[UDAY UMESH LALIT, J.]
3. Contusion 10 cm x 6 cm left wrist. A
4. Contusion 10 cm x 10 cm back below right shoulder.”
C) PW3-Kumar was found to have suffered injuries as under:-
“1. A lacerated wound 10 cm x 6 cm x bone deep oblique
left upper arm. B
2. A lacerated wound 8 cm x 4 cm x 4 cm left upper arm
below 4 cm wound horizontal.
3. A lacerated wound 6 cm x 2 cm x bone deep lower
aspect left upper arm horizontal.
C
4. A lacerated wound 10 cm x 1 cm x bone deep
extending from left ear lobe horizontally backwards.
5. Lacerated wound above right upper lip extending upto
left side nose 8 cm x 1 cm x bone deep.
6. Lacerated wound 4 cm x 1 cm x 1 cm left eyebrow. D
7. Lacerated wound 16 cm x 2 cm x bone deep over right
shoulder upper aspect oblique.”
D) PW4-Thangammal had following injury:-
“A lacerated wound 10 cm x 1 cm x bone deep extending from
E
forehad vertically to middle head.”
E) Following injuries were found on the person of PW5-
Sengodan.
“1. Contusion 10 cm x 10 cm left knee.
2. Abrasion 6 cm x ¼ cm right thigh middle front.” F
5. At about 6.00 a.m. on 28.05.2009, complaint (Exhibit-P1) was
made by PW1-Sundararajan, pursuant to which FIR No.238/1999 was
registered with Singarapettai Police Station, as under:-
“On 27-05-1999 night at about 9.30 p.m. we all took bed after
G
food. My father and mother were sleeping in the tractor shed
in front of the house. My brother’s son Sengodan was sleeping
in the veranda of the house. My younger brother Kumar and
his wife Thangam with her child Manju were sleeping in the
southern side room of the house. I was sleeping in the northern
side room of the house. At about 1.00 clock in the midnight I H
1194 SUPREME COURT REPORTS [2019] 17 S.C.R.
A heard noise of my father, woke up and came out of the room.
At that time a person wearing red colour shirt came there with
a stick in a hand and found sitting. A group of 6 persons were
attacking and beating my father with stick and koduval. One
among them cut the gold chain of about 5 sovereigns and removed
I cried and raised noise. Those persons attacked me with stick
B
and koduval on my head and all over the body. On hearing my
noise my younger brother Kumar came out running from the
room and his hands were tied from behind by them and he was
beaten with sticks. His wife Thangam came out to avert the
beating but she was also attacked by koduval. They removed
C the gold chain of 10 sovereigns worn by her, a pair of silver leg
chain worn by her also snatched by them. Then they entered
into the house and broke open the bureau and removed the silver
waist chord and silver leg chain worn by child. At that time my
brother’s son Sengodan raised noise and he was also attacked.
All the people ran away. They were 7 members of aged group
D
from 20 to 25. On hearing our noise the villagers consisting of
Ramasundaram and Srinivasan etc. came and took us to the
Government Hospital, Uthangarai at about 4.00 am in the early
morning. I came to know that my father Sengodan died. Others
were admitted in the Hospital treated by the Doctor. The value
E of stolen articles will be Rs.45000/- (Forty five thousand). I can
identify the jewels stolen if recovered. I can also identify the
persons who came and stole the jewels and killed my father and
attacked us, if they are found.”
6. The investigation was commenced by PW17-M.Chinnathambi,
F Deputy Superintendent of Police. Accused No.1-Raja, Accused No.2-
Govindraj, Accused No.3-Palani, Accused No.4-Vandikaran @
Murugan, Accused No.5-Elumalai and Accused No.7- Arumugam were
arrested on 21.06.1999 while Accused No.6-Chinnapaiyan surrendered
himself before the Magistrate on 22.06.1999, who remanded him to
judicial custody on the same day. On 27.06.1999 requisition was made
G
by the Investigating Officer for conducting Test Identification Parade
(TIP for short) insofar as all the arrested accused were concerned.
On 28.6.1999 an application was made by the Investigating Officer
seeking permission to take Accused No.6 – Chinnapaiyan in police
custody. The permission was granted by the concerned Magistrate on
H 29.06.1999 to hold the TIP on 01.07.1999. The police custody of
RAJA v. STATE BY THE INSPECTOR OF POLICE 1195
[UDAY UMESH LALIT, J.]
Accused No.6 was also given for 3 days from 01.07.1999. Thereafter, A
the TIP was held on 01.07.1999, in which PWs 1 to 5 identified the
concerned accused. The TIP was conducted in the presence and under
the supervision of PW11-Boopalan, who was then working as Sub-
Judge, Rani Pettai.
7. During the course of investigation, following recoveries were B
made from the concerned accused.
i) MO 18 wrist watch was recovered from Accused No.1
ii) MO 12 gold chain, MOs 21, 23 & 24 gold articles, MOs
46 and 47 clothes having blood stains were recovered
from Accused No.2 C
iii) MOs 48 and 49 namely clothes including a red shirt were
recovered from Accused No.3.
iv) MOs 13, 14, 15 and 19 being gold articles were
recovered from Accused No. 4. D
v) MOs 6 and 16 being gold articles were recovered from
Accused No. 5.
vi) MO 17 a wrist watch and MOs 43 and 56 being gold
articles were recovered from Accused No. 6.
E
8. After completion of investigation, the aforementioned seven
accused persons were charged of having committed various offences
including those punishable under Sections 109, 120B, 394, 395, 396, 449
of the Indian Penal Code, 1860 (‘IPC’, for short). The prosecution, in
support of its case, principally relied upon the testimonies of PWs 1 to
5 who identified Accused Nos. 1 to 6 to be the assailants. All the F
witnesses, however, stated that Accused No. 7 was not present as a
member of the assembly. In their cross examination, it was suggested
to all the witnesses that the accused were shown to the witnesses while
they were in custody and that their photographs were also published in
newspapers before the TIP was undertaken. The responses of these G
witnesses were as under:-
a) PW1-Sundararajan stated:-
“Police showed the jewels and the accused and asked us to
identify them as to whether they are the persons who are caught.
We did not see in the police station. We saw in the papers. I H
1196 SUPREME COURT REPORTS [2019] 17 S.C.R.
A do not know whether it was published in the paper 25 days after
the occurrence. It is not correct to say that I identified them in
the Central Jail because I saw them already in the papers. It is
not correct to say that I identified them in the Jail because I saw
them in the police station and in the papers already.”
B b) PW2-Erusayee stated:-
“At the time of occurrence totally 6 persons came. I saw them
for the first time only then. I have not seen them before. Police
said that they were caught I saw in the police station then saw
them in the Central Jail, Salem.”
C c) PW3-Kumar stated:-
“In the enquiry by the police I have stated that, 6 unidentifiable
persons came and attacked. I did not say that identifiable
persons attacked us. I have stated I can identify them if seen.
I identified in the police station. … …I identified in the
D Singarapettai Police Station one month after the occurrence.”
d) PW4-Thangammal stated:-
“It is not correct to say that I am deposing falsely that gold chain
of 4 sovereigns was stolen. Singarapettai Police also came and
wrote. Police asked in the Salem Jail thereafter. I identified in
E Salem. We identified in Morappur police station.”
e) PW5-Sengodan stated:-
“I did not say the identity of the accused when police examined
me. It is not correct to say that, I am deposing falsely because
of enmity between our family and Arumugam’s family or that I
F
identified Arumugam in the jail. It is not correct to say that
because police showed me the photos of the accused which were
published in the paper and I was already shown the accused in
Morappur police station, I was called for identification and so I
identified the accused. The daily newspaper “Dhina Thanthi”
G was not coming to our village at that time.”
9. PW11-Boopalan, Sub-Judge in whose presence the TIP was
conducted, stated that the Accused Nos.1 to 6 were made to stand for
identification along with 19 other inmates from the Central Prison who
were used as dummies and that PWs.1 to 5 identified Accused Nos.1
H to 6. PW8-Thangaraj, Village Administrative Officer, in whose
RAJA v. STATE BY THE INSPECTOR OF POLICE 1197
[UDAY UMESH LALIT, J.]
presence, the recoveries were said to have been effected, turned A
hostile. The prosecution did not examine the other Panch, Kasim. PW17,
the Investigating Officer, in his cross examination by the Accused 1 to
5 and 7 stated :-
“It is not correct to say that, the accused 1 to 5 and 7 were
brought to Singarapettai Police station where they were shown B
to the witnesses and identified. I do not know if the photos of
the accused 1 to 5 and 7 were already published in the newspaper
before 21-06-1999.”
10. The case of the prosecution was accepted by the Additional
Sessions Judge, Krishnagiri, who by the judgment dated 24.07.2012 C
found Accused Nos.1 to 6 guilty of the offences punishable under
Sections 394, 396, 449 IPC. Accused Nos. 1 to 3 were also convicted
under Section 395 read with Section 397 IPC while Accused Nos. 2,
4, 5 and 6 were convicted under Section 395 IPC and all were awarded
the sentence of life imprisonment along with other sentences, including D
payment of fine and default sentences. Accused No.7 was, however,
acquitted of all the charges.
11. Thereafter, Criminal Appeal No.604 of 2012 was preferred
by Accused Nos. 1 to 5 while Criminal Appeal No.92 of 2013 was
preferred by Accused No.6. By its common judgment and order dated E
27.04.2016 the High Court affirmed the view taken by the Trial Court
and dismissed both the appeals. Being aggrieved, Accused Nos.1, 2,
3, 5 and 6 have preferred these Criminal Appeals. We have heard Mr.
Rahul Shyam Bhandari, learned Advocate for the Accused No.1 and
Mr. Gopal Sankaranarayanan, learned Senior Advocate for the other F
accused and Mr. M. Yogesh Kanna, learned Advocate for the State.
12. The principal submissions advanced on behalf of the
appellants are:
(a) The initial reporting shows that the identity of the
assailants was not known to any of the witnesses. The G
admissions given by PWs. 1, 2, 3 and 4 in their cross-
examination show that the accused were shown to the
witnesses in the Police Station. It is accepted that the
photographs of the accused were published in local
newspapers. H
1198 SUPREME COURT REPORTS [2019] 17 S.C.R.
A (b) According to the initial version of the prosecution,
Accused No.7, a neighbour living in the vicinity was
responsible for the crime and the appellants were said
to be his accomplices. However, every eye-witness
stated that Accused No.7 was not involved in the crime.
The acquittal of said Accused No.7 was accepted by
B
the prosecution. There was thus no connection of the
appellants with the crime.
(c) The recoveries were not supported by PW8-Thangaraj.
The other Panch was also not examined.
C 13. Mr. Kanna, learned advocate for the State, however,
submitted that as found by the Courts below, the eye-witness account
through PWs.1 to 5 was clear, cogent and completely reliable. Every
one of those prosecution witnesses had suffered injuries; their presence
could never be doubted; and considering the nature of injuries the
opportunity available to them to observe the features of each of the
D Accused was quite sufficient.
14. In the present case, the incident occurred after mid night.
The prosecution witnesses 1 to 5 suffered injuries in the transaction
but the initial reporting showed that the identity of the assailants was
not known to the witnesses. It is true that no identification marks or
E attributes were stated but it was asserted that the assailants were in
the age group of 20 to 25 and one of the assailants had worn a red
colour shirt. Further, if the nature and number of injuries suffered by
each of the witnesses are considered, the assailants must have been
quite close to the witnesses to afford to the witnesses sufficient time
F and opportunity to observe their features.
15. It has been accepted by this Court that what is substantive
piece of evidence of identification of an accused, is the evidence given
during the trial. However, by the time the witnesses normally step into
the box to depose, there would be substantial time gap between the
G date of the incident and the actual examination of the witnesses. If
the accused or the suspects were known to the witnesses from before
and their identity was never in doubt, the lapse of time may not
qualitatively affect the evidence about identification of such accused,
but the difficulty may arise if the accused were unknown. In such cases,
the question may arise about the correctness of the identification by
H the witnesses. The lapse of time between the stage when the witnesses
RAJA v. STATE BY THE INSPECTOR OF POLICE 1199
[UDAY UMESH LALIT, J.]
had seen the accused during occurrence and the actual examination of A
the witnesses may be such that the identification by the witnesses for
the first time in the box may be difficult for the court to place complete
reliance on. In order to lend assurance that the witnesses had, in fact,
identified the accused or suspects at the first available opportunity, the
TIP which is part of the investigation affords a platform to lend
B
corroboration to the ultimate statements made by the witnesses before
the Court. However, what weightage must be given to such TIP is a
matter to be considered in the facts and circumstances of each case.
16. Again, there is no hard and fast rule about the period within
which the TIP must be held from the arrest of the accused. In certain
cases, this Court considered delay of 10 days to be fatal while in other C
cases even delay of 40 days or more was not considered to be fatal at
all. For instance, in Pramod Mandal v. State of Bihar1 the accused
was arrested on 17.01.1989 and was put up for Test Identification on
18.02.1989, that is to say there was a delay of a month for holding the
TIP. Additionally, there was only one identifying witness against the D
said accused. After dealing with the decisions of this Court in Wakil
Singh v. State of Bihar2, Subhash v. State of Uttar Pradesh3 and
Soni v. State of Uttar Pradesh4 in which benefit was conferred upon
the accused because of delay in holding the TIP, this Court considered
the line of cases taking a contrary view as under:
E
“18. Learned counsel for the State submitted that in the instant
case there was no inordinate delay in holding the test identification
parade so as to create a doubt on the genuineness of the test
identification parade. In any event he submitted that even if it is
assumed that there was some delay in holding the test
identification parade, it was the duty of the accused to question F
the investigating officer and the Magistrate if any advantage was
sought to be taken on account of the delay in holding the test
identification parade. Reliance was placed on the judgment of
this Court in Bharat Singh v. State of U.P.5 In the aforesaid
judgment this Court observed thus: (SCC p. 898, para 6) G
1
(2004) 13 SCC 150
2
(1981) Suppl. SCC 28
3
(1987) 3 SCC 231
4
(1982) 3 SCC 368
5
(1973) 3 SCC 896 H
1200 SUPREME COURT REPORTS [2019] 17 S.C.R.
A “6. In Sk. Hasib v. State of Bihar6 it was observed by the Court
that identification parades belong to the investigation stage and
therefore it is desirable to hold them at the earliest opportunity.
An early opportunity to identify tends to minimise the chances
of the memory of the identifying witnesses fading away due to
long lapse of time. Relying on this decision, counsel for the
B
appellant contends that no support can be derived from what
transpired at the parade as it was held long after the arrest of
the appellant. Now it is true that in the instant case there was a
delay of about three months in holding the identification parade
but here again, no questions were asked of the investigating officer
C as to why and how the delay occurred. It is true that the burden
of establishing the guilt is on the prosecution but that theory
cannot be carried so far as to hold that the prosecution must lead
evidence to rebut all possible defences. If the contention was
that the identification parade was held in an irregular manner or
that there was an undue delay in holding it, the Magistrate who
D
held the parade and the police officer who conducted the
investigation should have been cross-examined in that behalf.”
In the instant case we find that the defence has not imputed any
motive to the prosecution for the delay in holding the test
identification parade, nor has the defence alleged that there was
E any irregularity in the holding of the test identification parade.
The evidence of the Magistrates conducting the test identification
parade as well as the investigating officer has gone unchallenged.
Learned counsel for the State is, therefore, justified in contending
that in the facts and circumstances of this case the holding of
F the test identification parade, about one month after the
occurrence, is not fatal to the case of the prosecution as there is
nothing to suggest that there was any motive for the prosecution
to delay the holding of the test identification parade or that any
irregularity was committed in holding the test identification
parade.
G
19. Learned counsel for the State has also relied upon the decision
of this Court in Anil Kumar v. State of U.P.7 wherein the test
identification parade was held 47 days after the arrest of the
6
(1972) 4 SCC 773
7
H (2003) 3 SCC 569
RAJA v. STATE BY THE INSPECTOR OF POLICE 1201
[UDAY UMESH LALIT, J.]
appellants. This Court after considering several decisions of this A
Court including the decisions in Brij Mohan v. State of
Rajasthan 8, Daya Singh v. State of Haryana 9 and State of
Maharashtra v. Suresh10 concluded that since the identifying
witness was attacked by the assailants including the appellant
and another, he had a clear look at the assailants. When his
B
younger brother came to save him, he was killed by the assailants
while the witness also received serious injuries. These were
circumstances which would have imprinted in the memory of the
witness the facial expressions of the assailants and this impression
would not diminish or disappear within a period of 47 days. Similar
was the case of the father and the mother of the identifying C
witness who had seen the assailants attacking their sons and one
of their sons getting killed. In their memory also the facial
expressions of the assailants will get embossed. A mere lapse
of 47 days would not erase the facial expressions from their
memory.
D
20. It is neither possible nor prudent to lay down any invariable
rule as to the period within which a test identification parade must
be held, or the number of witnesses who must correctly identify
the accused, to sustain his conviction. These matters must be
left to the courts of fact to decide in the facts and circumstances
of each case. If a rule is laid down prescribing a period within E
which the test identification parade must be held, it would only
benefit the professional criminals in whose cases the arrests are
delayed as the police have no clear clue about their identity, they
being persons unknown to the victims. They, therefore, have only
to avoid their arrest for the prescribed period to avoid conviction.
F
Similarly, there may be offences which by their very nature may
be witnessed by a single witness, such as rape. The offender
may be unknown to the victim and the case depends solely on
the identification by the victim, who is otherwise found to be
truthful and reliable. What justification can be pleaded to contend
that such cases must necessarily result in acquittal because of G
there being only one identifying witness? Prudence therefore
demands that these matters must be left to the wisdom of the
courts of fact which must consider all aspects of the matter in
8
(1994) 1 SCC 413
9
(2001) 3 SCC 468
10
(2000) 1 SCC 471 H
1202 SUPREME COURT REPORTS [2019] 17 S.C.R.
A the light of the evidence on record before pronouncing upon the
acceptability or rejection of such identification.
21. Lastly in Malkhansingh v. State of M.P.11 a three-Judge
Bench of this Court of which one of us (B.P. Singh, J.) was a
member, after considering various decisions of this Court
B observed thus: (SCC pp. 751-52, para 7)
“7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are
C relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the
accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a prior
D test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly considered
a safe rule of prudence to generally look for corroboration of
the sworn testimony of witnesses in court as to the identity
of the accused who are strangers to them, in the form of
earlier identification proceedings. This rule of prudence,
E however, is subject to exceptions, when, for example, the court
is impressed by a particular witness on whose testimony it
can safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation, and
there is no provision in the Code of Criminal Procedure which
obliges the investigating agency to hold, or confers a right
F upon the accused to claim a test identification parade. They
do not constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade would
not make inadmissible the evidence of identification in court.
The weight to be attached to such identification should be a
G
matter for the courts of fact. In appropriate cases it may
accept the evidence of identification even without insisting on
corroboration.”
(emphasis supplied by us)
11
H (2003) 5 SCC 746
RAJA v. STATE BY THE INSPECTOR OF POLICE 1203
[UDAY UMESH LALIT, J.]
This Court thus found the evidence as regards identification to A
be trustworthy and dismissed the appeal preferred by the accused.
17. In Daya Singh v. State of Haryana 9 the incident had
occurred on 09.04.1988 and the accused was arrested on 28.05.1988
and was put up for test identification on 02.06.1988. However, the
accused refused to take part in the TIP. Thereafter, the eye-witnesses, B
PWs 37 and 38, were examined in the trial after a lapse of seven and
half years and eight years respectively from the date of occurrence.
The ground regarding lapse of time between the occurrence and the
actual identification in Court was dealt with by this Court as under:
“11. At this stage we would first refer to the decisions upon C
which reliance is placed. In the case of Soni4 this Court observed
that a delay of 42 days in holding the identification parade throws
a doubt on genuineness thereof, apart from the fact that it is
difficult that after a lapse of such a long time the witnesses would
be remembering facial expression of the appellant. In the case
of Mohd. Abdul Hafeez v. State of A.P.12 the Court while D
dealing with a robbery case observed that as no identification
parade was held, no reliance can be placed on the identification
of the accused after a lapse of four months in the Court. In the
case of Hari Nath13 the Court observed that evidence of test
identification is admissible under Section 9 of the Evidence Act. E
But the value of test identification, apart from the other safeguards
appropriate to a fair test of identification depends upon the
promptitude in point of time with which the suspected persons
are put up for test identification. If there is an unexplained and
unreasonable delay in putting up the accused persons for a test
identification, the delay by itself detracts from the credibility of F
the test. The Court further referred to (para 9) Prof. Borchard:
Convicting the Innocent on the basis of error in identification
of the accused. The learned author has observed:
“The emotional balance of the victim or eyewitness is so disturbed
by his extraordinary experience that his powers of perception G
become distorted and his identification is frequently most
untrustworthy. Into the identification enter other motives not
necessarily stimulated originally by the accused personally — the
12
(1983) 1 SCC 143
13
(1988) 1 SCC 14 H
1204 SUPREME COURT REPORTS [2019] 17 S.C.R.
A desire to requite a crime, to exact vengeance upon the person
believed guilty, to find a scapegoat, to support, consciously or
unconsciously, an identification already made by another. Thus,
doubts are resolved against the accused.”
12. In AIR paras 10 and 11, the Court has observed as under:
B (SCC p. 21, paras 19-21)
“19. The evidence of identification merely corroborates and
strengthens the oral testimony in court which alone is the primary
and substantive evidence as to identity. In Sk. Hasib v. State of
Bihar6 this Court observed: (SCC p. 777, para 5)
C ‘… 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.’
D 20. In Rameshwar Singh v. State of J&K14 this Court observed:
[SCC p. 718, SCC (Cri) p. 641, para 6]
‘… it may be remembered that the substantive evidence of a
witness is his evidence in court, but when the accused person is
not previously known to the witness concerned then identification
E of the accused by the witness soon after the former’s arrest is
of vital importance because it furnishes to the investigating
agency an assurance that the investigation is proceeding on right
lines in addition to furnishing corroboration of the evidence to be
given by the witness later in court at the trial.’
F 21. It is, no doubt, true that absence of corroboration by test
identification may not assume any materiality if either the witness
had known the accused earlier or where the reasons for gaining
an enduring impress of the identity on the mind and memory of
the witness are, otherwise, brought out. It is also rightly said that:
G ‘Courts ought not to increase the difficulties by magnifying the
theoretical possibilities. It is their province to deal with matters
actual and material to promote order and not surrender it by
excessive theorising or by magnifying what in practice is really
unimportant.’ ”
14
H (1971) 2 SCC 715
RAJA v. STATE BY THE INSPECTOR OF POLICE 1205
[UDAY UMESH LALIT, J.]
13. The question, therefore, is — whether the evidence of injured A
eyewitnesses PW 37 and PW 38 is sufficient to connect the
appellant with the crime beyond reasonable doubt. For this
purpose, it is to be borne in mind that the purpose of test
identification is to have corroboration to the evidence of the
eyewitnesses in the form of earlier identification and that
B
substantive evidence of a witness is the evidence in the court.
If that evidence is found to be reliable then absence of
corroboration by test identification would not be in any way
material. Further, where reasons for gaining an enduring impress
of the identity on the mind and memory of the witnesses are
brought on record, it is no use to magnify the theoretical C
possibilities and arrive at conclusion — what in present-day social
environment infested by terrorism is really unimportant. In such
cases, not holding of identification parade is not fatal to the
prosecution. The purpose of identification parade is succinctly
stated by this Court in State of Maharashtra v. Suresh10 as
D
under: (SCC p. 478, para 22)
“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 twofold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is really the E
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.”
(Emphasis supplied by us) F
18. It is, thus, clear that if the material on record sufficiently
indicates that reasons for “gaining an enduring impression of the identity
on the mind and memory of the witnesses” are available on record,
the matter stands in a completely different perspective. This Court also
stated that in such cases even non-holding of identification parade would G
not be fatal to the case of the prosecution. Applying the tests so laid
down to the present case, in view of the fact that each of the
eyewitnesses had suffered number of injuries in the transaction, it can
safely be inferred that every one of them had sufficient opportunity to
observe the accused to have an enduring impression of the identity of H
1206 SUPREME COURT REPORTS [2019] 17 S.C.R.
A the assailants. It is not as if the witnesses had seen the assailants, in
a mob and from some distance. Going by the injuries, the contact with
the accused must have been from a close distance.
19. Furthermore, in the present case all the accused were
arrested on 21.06.1999 except Accused No.6 who surrendered before
B the Magistrate on 22.06.1999 and was remanded to judicial custody.
After securing permissions from the Magistrate, the police custody of
Accused No.6 was obtained on 01.07.1999 and the TIP was held on
01.07.1999 itself. There was, thus, no delay on part of the investigating
machinery in getting TIP held on 01.07.1999.
C 20. However, what is urged, is that at least three of the
eyewitnesses had accepted that the accused were shown to them while
the accused were in police custody. The responses of PWs 1, 2, and 3
as quoted hereinbefore do indicate that they had seen and identified
the accused while they were in custody. The suggestion that the
D witness was able to identify the accused only because they were shown
while the accused were in police custody or that their photographs had
appeared in newspaper, was, however, denied by PW1. The response
of PW4 was with regard to identification of gold chain of four sovereign
and that is why the identification was in Morappur police station whereas
from the responses of PWs 1, 2 and 3 it is clear that the accused were
E
in Singarapettai police station. The response of PW4 does not indicate
that the witness had seen the accused while they were in custody. PW5
completely denied the suggestion that he could identify only because
the accused were shown while they were in custody and that because
the photographs of the accused were shown to the witnesses. He also
F denied that newspaper “Dhina Thanthi”, which apparently had published
the photographs of the accused, was available in their village at that
time. No defence evidence has been placed on record either to
establish the date of publication of such photographs in any newspaper
and whether the newspaper “Dhina Thanthi” was normally available
G in the concerned village.
21. Thus, out of five prosecution witnesses who were all injured
in the transaction, the testimonies of at least two of them, namely, PWs
4 and 5 stand on a different footing. Even with respect to PWs 1, 2
and 3, though there is some room to say that the accused were shown
H to the witnesses while they were in custody, that part by itself may not
RAJA v. STATE BY THE INSPECTOR OF POLICE 1207
[UDAY UMESH LALIT, J.]
be sufficient in the light of the discussion in Manu Sharma v. State A
(NCT of Delhi)15 which was to the following effect:
“252. It is also contended by the defence that since the
photographs were shown to the witnesses this circumstance
renders the whole evidence of identification in court as
inadmissible. For this, it was pointed out that photo identification B
or TIP before the Magistrate, are all aides in investigation and
do not form substantive evidence. Substantive evidence is the
evidence of the witness in the court on oath, which can never
be rendered inadmissible on this count. It is further pointed out
that photo identification is not hit by Section 162 CrPC as
C
adverted to by the defence as the photographs have not been
signed by the witnesses.
253. In support of his argument the Senior Counsel for Manu
Sharma relies on the judgment of Kartar Singh v. State of
Punjab16 SCC at p. 711 wherein while dealing with Section 22
of TADA the Court observed that photo TIP is bad in law. It is D
useful to mention that the said judgment has been distinguished
in Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau17,
where a photo identification has been held to be valid. The
relevant extract of the said judgment is as follows: (SCC p. 143,
paras 10-12) E
“10. The next circumstance highlighted by the learned counsel
for the respondent is that a photo of the appellant was shown to
Mr Albert Mkhatshwa later and he identified that figure in the
photo as the person whom he saw driving the car at the time of
interception of the truck. F
11. It was contended that identification by photo is inadmissible
in evidence and, therefore, the same cannot be used. No legal
provision has been brought to our notice which inhibits the
admissibility of such evidence. However, learned counsel invited
our attention to the observations of the Constitution Bench in G
Kartar Singh v. State of Punjab16 which struck down Section
22 of the Terrorist and Disruptive Activities (Prevention) Act,
15
(2010) 6 SCC 1
16
(1994) 3 SCC 569
17
(2000) 1 SCC 138 H
1208 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 1987. By that provision the evidence of a witness regarding
identification of a proclaimed offender in a terrorist case on the
basis of the photograph was given the same value as the evidence
of a test identification parade. This Court observed in that
context: (SCC p. 711, para 361)
B ‘361. If the evidence regarding the identification on the basis
of a photograph is to be held to have the same value as the
evidence of a test identification parade, we feel that gross
injustice to the detriment of the persons suspected may result.
Therefore, we are inclined to strike down this provision and
accordingly we strike down Section 22 of the Act.’
C
12. In the present case prosecution does not say that they would
rest with the identification made by Mr Mkhatshwa when the
photograph was shown to him. Prosecution has to examine him
as a witness in the court and he has to identify the accused in
the court. Then alone it would become substantive evidence. But
D that does not mean that at this stage the court is disabled from
considering the prospect of such a witness correctly identifying
the appellant during trial. In so considering the court can take
into account the fact that during investigation the photograph of
the appellant was shown to the witness and he identified that
E person as the one whom he saw at the relevant time. It must be
borne in mind that the appellant is not a proclaimed offender and
we are not considering the eventuality in which he would be so
proclaimed. So the observations made in Kartar Singh16 in a
different context is of no avail to the appellant.”
F 254. Even a TIP before a Magistrate is otherwise hit by Section
162 of the Code. Therefore, to say that a photo identification is
hit by Section 162 is wrong. It is not a substantive piece of
evidence. It is only by virtue of Section 9 of the Evidence Act
that the same i.e. the act of identification becomes admissible in
court. The logic behind TIP, which will include photo identification
G lies in the fact that it is only an aid to investigation, where an
accused is not known to the witnesses, the IO conducts a TIP
to ensure that he has got the right person as an accused. The
practice is not borne out of procedure, but out of prudence. At
best it can be brought under Section 8 of the Evidence Act, as
H evidence of conduct of a witness in photo identifying the accused
RAJA v. STATE BY THE INSPECTOR OF POLICE 1209
[UDAY UMESH LALIT, J.]
in the presence of an IO or the Magistrate, during the course of A
an investigation.
255. Mr Jethmalani has further argued on the proposition that
mere dock identification is no identification in the eye of the law
unless corroborated by previous TIP before the Magistrate. It
has been further argued that in any case, even identification in B
court is not enough and that there should be something more to
hold the accused liable. In support of his arguments, he placed
heavy reliance on the decision of this Court in Hari Nath v. State
of U.P. 13 and Budhsen v. State of U.P.18 A close scrutiny of
these judgments will reveal that they in fact support the case of
the prosecution. These judgments make it abundantly clear that C
even where there is no previous TIP, the court may appreciate
the dock identification as being above board and more than
conclusive.
256. The law as it stands today is set out in the following
decisions of this Court which are reproduced as hereinunder: D
Munshi Singh Gautam v. State of M.P.19: (SCC pp. 642-45,
paras 16-17 & 19)
“16. As was observed by this Court in Matru v. State of
U.P. 20 identification tests do not constitute substantive
evidence. They are primarily meant for the purpose of helping E
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. Izhar
Hussain21.) The necessity for holding an identification parade F
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 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 G
main object of holding an identification parade, during the
18
(1970) 2 SCC 128
19
(2005) 9 SCC 631
20
(1971) 2 SCC 75
21
(1973) 2 SCC 406 H
1210 SUPREME COURT REPORTS [2019] 17 S.C.R.
A investigation stage, is to test the memory of the witnesses
based upon first impression and also to enable the 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
B
that a test identification parade 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 prosecution
C has to be cautious to ensure that there is no scope for making
such an allegation. If, however, circumstances are beyond
control and there is some delay, it cannot be said to be fatal
to the prosecution.
17. It is trite to say that the substantive evidence is the
D evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement
E
made in court. The evidence of mere identification of the
accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a prior
test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is, accordingly, considered
F a safe rule of prudence to generally look for corroboration of
the sworn testimony of witnesses in court as to the identity
of the accused who are strangers to them, in the form of
earlier identification proceedings. This rule of prudence,
however, is subject to exceptions, when, for example, the court
G is impressed by a particular witness on whose testimony it
can safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation, and
there is no provision in the Code which obliges the investigating
agency to hold or confers a right upon the accused to claim
a test identification parade. They do not constitute substantive
H evidence and these parades are essentially governed by
RAJA v. STATE BY THE INSPECTOR OF POLICE 1211
[UDAY UMESH LALIT, 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 B
v. Delhi Admn22., Vaikuntam Chandrappa v. State of A.P.23,
Budhsen v. State of U.P.18 and Rameshwar Singh v. State
of J&K14.)
* * *
19. In Harbajan Singh v. State of J&K 24, though a test C
identification parade was not held, this Court upheld the conviction
on the basis of the identification in court corroborated by other
circumstantial evidence. In that case it was found that the
appellant and one Gurmukh Singh were absent at the time of roll
call and when they were arrested on the night of 16-12-1971 their
D
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: (SCC p. 481, para 4)
E
‘4. In view of this corroborative evidence we find no
substance in the argument urged on behalf of the appellant
that the investigating officer ought to have held an
identification parade and that the failure of Munshi Ram to
mention the names of the two accused to the neighbours who
came to the scene immediately after the occurrence shows F
that his story cannot be true. As observed by this Court in
Jadunath Singh v. State of U.P. 25 absence of test
identification is not necessarily fatal. The fact that Munshi
Ram did not disclose the names of the two accused to the
villagers only shows that the accused were not previously G
known to him and the story that the accused referred to each
22
AIR (1958) SC 350
23
AIR (1960) SC 1340
24
(1975) 4 SCC 480
25
(1970) 3 SCC 518 H
1212 SUPREME COURT REPORTS [2019] 17 S.C.R.
A other by their respective names during the course of the
incident contains an element of exaggeration. The case does
not rest on the evidence of Munshi Ram alone and the
corroborative circumstances to which we have referred to
above lend enough assurance to the implication of the
B appellant.’ ”
Malkhansingh v. State of M.P11: (SCC pp. 751-52, para 7)
“7. It is trite to say that the substantive evidence is the evidence
of identification in court. Apart from the clear provisions of
Section 9 of the Evidence Act, the position in law is well settled
C by a catena of decisions of this Court. The facts, which establish
the identity of the accused persons, are relevant under Section
9 of the Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in court. The
evidence of mere identification of the accused person at the trial
for the first time is from its very nature inherently of a weak
D
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 corroboration of the sworn testimony of witnesses in court
as to the identity of the accused who are strangers to them, in
E the form of earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when, for example,
the court is impressed by a particular witness on whose testimony
it can safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation, and
F there is no provision in the Code of Criminal Procedure which
obliges the investigating agency to hold, or confers a right upon
the accused to claim a test identification parade. They do not
constitute substantive evidence and these parades are essentially
governed by Section 162 of the Code of Criminal Procedure.
Failure to hold a test identification parade would not make
G 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.”
………
H
RAJA v. STATE BY THE INSPECTOR OF POLICE 1213
[UDAY UMESH LALIT, J.]
259. In Mullagiri Vajram v. State of A.P.26 it was held that A
though the accused was seen by the witness in custody, any
infirmity in TIP will not affect the outcome of the case, since
the depositions of the witnesses in court were reliable and could
sustain a conviction. The photo identification and TIP are only
aides in the investigation and does not form substantive evidence.
B
The substantive evidence is the evidence in the court on oath.”
22. The facts on record thus indicate with clarity that:
(a) There was no delay in holding the test identification
parade and the delay, if any, was attributable to the fact
that one of the accused was in judicial custody whose C
presence had to be secured only after appropriate
permissions from the court;
(b) It is not the case of the accused that Accused No.6 was
ever shown to any of the witnesses. The test
identification parade of Accused No.6 has no infirmity D
on any count and all the witnesses consistently identified
said Accused No.6;
(c) Out of five injured witnesses, two had completely denied
that either the accused or their photographs were shown
to the witnesses, while other three did accept the E
suggestion in that behalf; and
(d) All the witnesses were injured in the transaction with
number of injuries. It can, therefore, safely be stated
that every one of them had adequate and proper
opportunity to observe the features of each of the F
accused.
23. As has been repeatedly laid down by this Court, what is
important is the identification in Court and if such identification is
otherwise found by the Court to be truthful and reliable, such substantive
evidence can be relied upon by the Court. Considering the totality of
G
circumstances on record, the presence and participation of the Accused
Nos.1 to 6, in our view, stood proved through the eyewitness account.
We do not find any infirmity in the evidence of identification by PWs 1
to 5.
26
1993 Supp. (2) SCC 198 H
1214 SUPREME COURT REPORTS [2019] 17 S.C.R.
A 24. Since we have accepted and relied upon the eye-witness
account, the subsidiary issues like recoveries and whether they were
proved in a manner known to law, need no further elaboration.
25. Consequently, we find that the Appellants were rightly found
guilty of the offences with which they were charged. Affirming their
B conviction and sentence, we dismiss these appeals.
Kalpana K. Tripathy Appeals dismissed.
C
D
E
F
G
H
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