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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     38     OF     2009   

Kunjumon @ Unni …..Appellant

Versus

State of Kerala      …..Respondent

J     U     D     G     M     E     N     T      

Madan     B.     Lokur,     J.   

1. The question before us is whether, in the absence of a Test  

Identification Parade (TIP for short), the evidence of a child witness  

should have been accepted for convicting the appellant. In our  

opinion, on the facts of this case both the Trial Court and the High  

Court were right in convicting the appellant for offences punishable  

under Section 397 (robbery or dacoity, with attempt to cause death  

or grievous hurt) and Section 302 (punishment for murder) of the  

Indian Penal Code. However, no case has been made out for  

convicting the appellant for an offence punishable Section 449  

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(house trespass in order to commit offence punishable with death)  

of the IPC.

The facts:

2. On 20th October 1997, the appellant and Jose Joseph came to  

the residential premises of PW-1 Jose son of Anthony at about 4.30  

p.m. with the common intention of committing robbery.  While Jose  

Joseph stood guard near the house, the appellant made an entry  

and came upon PW-2 Lidiya daughter of PW-1 Jose son of Anthony,  

who was then aged about 11 years.  Thereupon he caught hold of  

her neck, threatened to kill her and then robbed her of her gold  

chain and two gold ear studs.   

3. Thereafter, he entered one bed room in the house and  

attempted to rob Lidiya’s grandmother Annamma, aged about 90  

years of her ornaments.  When Annamma raised an alarm the  

appellant pulled her down from the cot on which she was lying and  

beat her on the head with a wall clock. He then robbed her of her  

gold chain weighing about 5.500 grams by breaking it from her  

neck and also took two imitation bangles from a bag kept inside the  

almirah in the room.  The appellant then went away from the  

house.  

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4. Upon the departure of the appellant and Jose Joseph from the  

scene of crime, Lidiya went to the school where she learnt dancing  

from her father and informed him of the incident.  They both  

rushed back to the house along with some friends and on  

discovering Annamma’s condition, she was first taken to  

Kanjirappally Government Hospital and then to the Kottayam  

Medical College Hospital for treatment. Unfortunately she passed  

away on 29th October 1997.

5. On a complaint having been lodged of the robbery, the police  

investigated the case and during the investigations, on 24th October  

1997, the Investigating Officer PW-13 T.A. Salim recovered the  

stolen articles at the instance of the appellant.

6. On conclusion of investigations, a challan was filed and the  

appellant was charged with offences punishable under Section 449  

of the IPC, Section 397 of the IPC and Section 302 of the IPC.  Jose  

Joseph was also similarly charged but the Trial Judge found him  

guilty of an offence punishable under Section 411 of the IPC.  

7. Both the convicts filed appeals in the High Court.  While the  

appeal filed by Jose Joseph was accepted by the High Court, the  

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appeal of the appellant was rejected and his conviction and  

sentence upheld.

8. We are, therefore, concerned only with the appeal filed by the  

appellant.

Decision of the Trial Court:

9. The Trial Judge found from the medical evidence given by PW-

10 Dr. V.P. Rajan, Civil Surgeon in the Kanjirappally Government  

Hospital that Annamma was aged about 90 years.  She had an  

injury on her forehead above the left eyebrow with suspicion of a  

fracture, edema of both eyelids and lacerated injury on right side of  

the forehead. According to him, the injuries could have been caused  

by a wall clock as alleged by the prosecution. The Trial Judge also  

considered the medical evidence of PW-11 Dr. Babu, Assistant  

Professor of Forensic Medicine, Kottayam Medical College that  

Annamma died on 29th October 1997 as a result of the head injuries  

sustained by her. The Trial Court found that the evidence of both  

the doctors was not challenged and proved that Annamma died due  

to the violence inflicted on her including being hit with a wall clock.

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10. The Trial Judge also found no reason to disbelieve the  

consistent testimony of Jose son of Antony and Lidiya who was an  

eye witness to the incident.

11. In addition, the Trial Court relied on the testimony of PW-3  

Leelamma, a neighbour of Jose son of Antony. Although this  

witness had turned hostile, she admitted having seen the appellant  

on the fateful day about 100 meters away from the house of Jose  

son of Antony.  She had seen the appellant earlier also and could,  

therefore, recognize him.  The Trial Judge also relied on the  

evidence on PW-5 Thankuppam, who was residing close by and had  

also seen the appellant in the vicinity of the house of Jose son of  

Antony.  This witness had also turned hostile, but confirmed seeing  

the appellant and that he knew the appellant.  It appears that this  

witness had turned hostile on the issue of having seen both the  

appellant and Jose Joseph together.   

12. The Trial Judge also saw no reason to disbelieve the  

Investigating Officer who confirmed the recovery of the gold  

ornaments at the instance of the appellant on 24th October 1997.

13. The principal contention of the appellant before the Trial  

Judge was that since he was a total stranger to Lidiya, she could  

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not have recognized him in the Court and in the absence of a TIP,  

reliance on her identification of the appellant could not be  

considered safe. The Trial Judge rejected this contention on the  

ground that there was sufficient other evidence to show the  

presence of the appellant in the vicinity of the house of Jose son of  

Antony and in view of the corroboration from other witnesses, there  

was no reason to doubt Lidiya.

14. Accordingly, the Trial Court convicted the appellant and  

sentenced him to 10 years imprisonment and fine for an offence  

punishable under Section 449 of the IPC, imprisonment for 7 years  

and fine for an offence punishable under Section 397 of the IPC and  

for life for an offence punishable under Section 302 of the IPC.  It  

was directed that the sentences would run concurrently.   

Decision of the High Court:

15. Feeling aggrieved, the appellant preferred Criminal Appeal No.  

835 of 2004 in the High Court of Kerala. By its Judgment and  

Order dated 30th October 2007, the High Court rejected the appeal  

and upheld the conviction of the appellant.  The High Court relied  

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upon the evidence of the witnesses mentioned above to uphold the  

conviction.

16. Before the High Court also the contention urged by the  

appellant was that since a TIP was not conducted, it would not be  

safe to rely upon the testimony of Lidiya.  However, the High Court  

rejected this contention by holding that there was clear evidence  

against the appellant, who had been identified by Lidiya and the  

witnesses in Court, and in view of the decisions of this Court in Sk.  

Hasib v. State of Bihar, AIR 1972 SC 283, Bikau Pandey v.  

State of Bihar, AIR 2004 SC 997 and State of Rajasthan v.  

Kishore, AIR 1996 SC 3035 there was no reason to interfere with  

the conviction and sentence.  Accordingly, Criminal Appeal No. 835  

of 2004 was dismissed.   

Discussion and conclusions:

17. Before us the facts as found by both the Courts below have  

not been contested by learned counsel for the appellant and rightly  

so.  However, it was submitted that since a TIP was not conducted,  

the evidence of Lidiya could not be relied upon.  Additionally, it was  

contended that since Lidiya was about 11 years of age at the time of  

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the incident, the evidence of the child witness should be carefully  

scrutinized.  Finally, it was contended that the appellant had no  

intention to murder Annamma and therefore the conviction for an  

offence punishable under Section 302 of the IPC was improper.

18. We are unable to agree with the submissions made by learned  

counsel for the appellant.  

(i) Not holding a TIP:

19. We have gone through the decisions referred to by the High  

Court and find that only Sk. Hasib is of any relevance. In that case,  

this Court explained the purpose of a TIP. It was observed that an  

identification parade is held at the investigation stage by the  

investigating officer for a two-fold purpose: to identify the property  

subject matter of the alleged offence or the person concerned in the  

alleged offence and to assure the investigating authority that the  

investigation is proceeding along the right lines. For this reason, the  

identification parade should be held at the earliest, so that memory  

does not fade in the meanwhile. More importantly, however, to  

ensure that the identification parade inspires confidence and is fair  

and effective, certain precautions need to be taken.   

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20. In spite of this, it was held, relying on Vaikuntam  

Chandrappa v. State of Andhra Pradesh, AIR 1960 SC 1340  

that,

“… the substantive evidence is the statement of a witness in  court and the purpose of test identification is to test that  evidence, the safe rule being that the sworn testimony of the  witness in court as to the identity of the accused who is a  stranger to him, as a general rule, requires corroboration in  the form of an earlier identification proceeding.”  

Consequently, if there is no substantive evidence against an  

accused, a TIP will not assist the prosecution.  

21. The advisability of holding a TIP (particularly with reference to  

avoidable or unreasonable delay) has been emphasized in  

Rameshwar Singh v. State of J & K, (1971) 2 SCC 715 by  

tethering it to “proper administration of justice”. In Budhsen v.  

State of Madhya Pradesh, (1970) 2 SCC 128 it has been pitched  

to “the life and liberty of an accused”. However, in Budhsen an  

exception has been noted “when for example, the court is impressed  

by a particular witness, on whose testimony it can safely rely,  

without such or other corroboration.”

22. A more useful and elaborate discussion on the subject is to be  

found in Malkhansingh v. State of Madhya Pradesh, (2003) 5  

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SCC 746 where the TIP is linked to the requirement of Section 9 of  

the Evidence Act, 1872 and coupled with the caution that in the  

absence of a TIP, the weight to be attached to the identification of  

the accused in Court is a matter for the courts of fact to decide.   

23. Similarly, in Vijay @ Chinee v. State of Madhya Pradesh,  

(2010) 8 SCC 191 after a discussion on the subject, it was  

concluded that,

“… … the test identification is a part of the investigation and is  very useful in a case where the accused are not known  beforehand to the witnesses. It is used only to corroborate the  evidence recorded in the court. Therefore, it is not substantive  evidence. The actual evidence is what is given by the witnesses  in the court.”

It was noted in Vijay with reference to State of Himachal  

Pradesh v. Lekh Raj, (2000) 1 SCC 247 that the holding of a TIP  

is “a rule of prudence which is required to be followed in cases  

where the accused is not known to the witness or complainant.”

24. We have gone into some detail on this issue because of the  

unfortunately cursory manner in which the matter has been dealt  

with by the Trial Judge and the High Court.  

25. The sum and substance of the various decisions referred to  

above and others on the same lines is that the failure to hold a TIP  

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is not fatal to the case of the prosecution, but the Trial Judge will  

need to be circumspect in accepting the identification of an accused  

by a witness in Court if the accused is a stranger to the witness.

26. In the present case, we are not dealing with the evidence of  

any ordinary witness –  we are dealing with a victim of a crime,  

someone who was directly at the receiving end of the actions of the  

appellant and who came face to face with the threat and  

intimidation by the appellant. The evidence of such a victim of a  

crime must be placed, in our opinion, on a somewhat higher  

pedestal, in terms of the credibility attached to it, than the evidence  

of any other witness. We need to seriously consider a partial shift in  

focus in the “proper administration of justice” by including not only  

the “life and liberty of an accused” but issues of victimology and the  

treatment of victims. Theories concerning criminal law and the  

administration of criminal justice are fast developing and we need  

to keep up with these developments.

27. What does Lidiya say in her evidence? Firstly, she identifies  

the appellant but no question is put to her in this regard in her  

cross-examination. Then, she says of the appellant:

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‘He caught me on my neck and told that if I open my mouth I  shall be killed. I was scared and kept mum. He told me to  remove my earrings and chain. I being scared removed my  earrings and chain and gave it to him.”

She reiterates this in her cross-examination and says that she saw  

the appellant for two minutes. The entire traumatic sequence of  

events would have been clearly etched in Lidiya’s memory, even  

though it may taken only two minutes. And so, the only question  

put to her in cross-examination in this regard is “You are deposing  

falsely that you saw A1 [the appellant]?”  which of course she  

denied.  

28. We have considered the delay of about 6 years in recording the  

evidence of Lidiya, but are of the opinion that on a reading of her  

testimony the episode did not (understandably) fade away from her  

memory.  

29. It is quite clear from the evidence of Lidiya, the absence of any  

meaningful cross-examination, the evidence given by the other  

witnesses and the recovery of gold ornaments from the possession  

of the appellant that the absence of the TIP makes no difference to  

the case of the prosecution or the identification of the appellant.

(ii) Testimony of a child witness:

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30. This issue need not detain us for any length of time. It is true  

that Lidiya was about 11 years of age when the incident took place.  

However, her testimony was recorded, unfortunately, after a lapse  

of 6 years. She was, by then, no longer a “child witness”. That  

apart, her evidence is clear and unambiguous and nothing adverse  

could be elicited during her cross-examination. We see no merit in  

this contention advanced on behalf of the appellant.

(iii) Murderous intent of the appellant:

31. Looking to the overall facts of the case, we see no reason to  

disagree with the concurrent view of the Trial Court and the High  

Court that the appellant is guilty of murder. If a frail old woman  

aged about 90 years is dragged down from her cot and beaten on  

the head with a wall clock, it is not difficult to imagine what the  

consequences would be –  and surely the appellant would not be  

oblivious of them. There is no merit in the submission of learned  

counsel for the appellant that his client did not intend the death of  

Annamma or even did not know that his actions would result in her  

death.

32. However, it seems quite clear, and this was also the case of  

the prosecution, that the appellant had gone to the house of Jose  

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son of Anthony for the purpose of committing a robbery. He did not  

go for the purpose of or with the intention to kill anybody. That he  

killed Annamma is unfortunate, but the house trespass was for the  

purpose of committing a robbery and not for the purpose of  

committing an offence punishable with death. Under the  

circumstances, in our opinion, it would not be proper to convict the  

appellant for an offence punishable under Section 449 of the IPC.  

To this extent, therefore, his appeal must be allowed.  

Result:

33. There is no merit in this appeal to the extent of the appellant’s  

conviction and sentence for offences punishable under Section 397  

and Section 302 of the IPC. Accordingly, it is dismissed in this  

regard. However, the appeal is allowed to the extent that no offence  

punishable under Section 449 of the IPC has been made out  

against the appellant.

….…….……………………..J.   (Swatanter Kumar)

….…….……………………..J.   (Madan B. Lokur)

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New Delhi November 21, 2012

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