RAM NATH MAHTOversusSTATE OF BIHAR

                           RAM NATH MAHTO                                          A
                                  v.
                            STATE OF BIHAR

                               APRIL 10, 1996

         [M.M. PUNCHHI AND SUJATA V. MANOHAR, JJ.]                                 B

      India Penal Code : 1860

       S.396-Accused committi11g robbery-Test ide11tification-Witness iden-
tifying accuse-Triat-Witness refusing to identify accused before trial
court-Magistrate who conducted test identification deposing that the witness
                                                                                   c
had correctly identified the accused duri11g test ide11tificatio11-Trial court
recording remarks as to demea11our of wit/less and convicting accused relying
011 statement of Magistrate-Conviction upheld.

      Evide11ce Act, 1872 :                                                        D
        S.9-Test ide11tification-Witness who identified accused i11 test ide11-
tification refused to ide11tify him in Court-Magistrate who had conducted test
identification stated before Court that the witness had correctly identified the
accused in the test identification-Held, Court would be entitled to rely upon
the evidence as it would be releva11t under s. 9.                                  E
      Budlzsen & Anr. v. State of U.P. , AIR (1970) SC 1321, distinguished.

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
225 of 1996.
                                                                                   F
      From the Judgment and Order dated 17.2.87 of the Patna High Court
in Crl. A. No 25 of 1985.

      N.R. Choudhary for the Appellant.

      Praveen Swarup for pramod Swarup for the Respondent.                         G
      The following order of the Court was delivered :

      The conviction of the appellant under Section 396 IPC initially visited
him with a life sentence, as ordered by the Court of Session, but on appeal
to the High Cor..t, it was reduced to ten years, rigorous imprisonment.            H
                                    163
    164                   SUPREME COURT REPORTS (1996] SUPP. 1 S.C.R.

A         It was a night robbery in a running train. The appellajit was allegedly
    one of the dacoits. A person was killed during the course of commission
    of dacoity and the dacoits caused hurts to others and looted their property.
    P.W. 6, Diwakar Yadav, was one such person who was robbed. The Train
    Ticket Examiner, P.W. 3, was also one of the occupants in the train who
    was injured. The occurrence took place shortly after the train left Katihar
B
    station for its onward journey to Calcutta. This incident happened in the
    State of Bihar. The matter was reported to the police by P.W. 3. The
    appellant was later arrested as one of the culprits. He was put to identifica-
    tion parade conducted by Judicial Magistrate, Bharatji Misra, P.W. 7.
    Thereas, P.W. 6 was able to identify the appellant as one of the dacoits
c   besides others, with whom we are presently not concerned with, and
    claimed that he was the one who had a revolver with him which he
    employed during the course of the occurrence.

          At the trial P.W. 7 fully supported the prosecution case, deposing
D   that P.W. 6 had before him identified the appellant as the dacoit carrying
    a revolver. P.W. 6, however, chose not to identify the appellant at the trial
    and rather said that he could not recognise the accused whom he had
    identified at the identification parade. When his pointed attention was
    drawn towards the appellant, he did not identify him. At that juncture, the
    trial Judge recorded his remarks as to his demeanour that the witness
E   perhaps was afraid of the accused as he was trembling at tlj.e stare of Ram
    Nath, accused. It thus became evident that the witness w4s frightened to
    accord recognition to the appellant at the trial. Despite such bend in the
    prosecution case, the trial court as also the High Court relied on the
    statement of the Magistrate, P.W. 7 as to P.W. 6 having identified the
p   appellant before him at the identification parade and held the prosecution
    case proved beyond doubt. Added thereto was the remark of the trial ·court
    about the demeanour of the witness P.W. 6.

          As was done before the courts below, learned counsel for the appel-
    lant has relied upon a decision of this Court in Budhsen & Anr. v. State of
G   U.P., AJR (1970) SC 1321 to contend that the evidence of identification
    parade does not constitute by itself substantive evidence which is governed
    essentially by the provisions of Section 162 of the Code of Criminal
    Procedure. In that case, this Court took the view that on the facts estab-
    lished, the Test Identification Parade could not be considered to provide
H   safe and trustworthy evidence on which conviction could be sustained. That
J
                             RN. MAHTO v. STATE                              165

    case was distinguished by the courts below and in our view rightly, by taking   A
    into account the substantive evidence of the Magistrate, P.W. 7, supported
    by the remarks of the trial court regarding demeanour of P.W. 6. There
    can be no dispute to the proposition that oral evidence led at the trial may    '
    by itself be substantive evidence whereas evidence of Test Identification
    Parade may per se be not. In that situation, the Court would certainly be       B
    entitled to rely upon such evidence as that would be relevant under Section
    9 of the Evidence Act. Here we have, as said before, the evidence of the
    Magistrate, P.W. 7 to support the prosecution evidence to say that he
    conducted the identification parade and before him P.W. 6 had correctly
    identified Ram Nath to be one of the dacoits. And the word of P.W. 7 in
    the context has been believed by the courts below.                              c
          For the foregoing reasons, we do not differ from the view taken by
    the High Court in maintaining the conviction of the appellant. The appeal
    therefore fails and is hereby dismissed. The appellant is on bail. He shall
    surrender to his bail bonds.         \
                                                                                    D
    R.P.                                                     Appeal dismissed.