RAJA Vs STATE BY THE INSPECTOR OF POLICE
Bench: HON'BLE MR. JUSTICE UDAY UMESH LALIT, HON'BLE MS. JUSTICE INDU MALHOTRA, HON'BLE MR. JUSTICE KRISHNA MURARI
Judgment by: HON'BLE MR. JUSTICE UDAY UMESH LALIT
Case number: Crl.A. No.-000740-000740 / 2018
Diary number: 39313 / 2017
Advocates: RAHUL SHYAM BHANDARI Vs
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 740 OF 2018
RAJA …Appellant
VERSUS
STATE BY THE INSPECTOR OF POLICE …Respondent
WITH
CRIMINAL APPEAL NOS.1608-1609 OF 2018
GOVINDARAJ AND ORS. …Appellants
VERSUS
STATE BY THE INSPECTOR OF POLICE,
SINGARAPATTAI POLICE STATION,
KRISHNAGIRI DISTRICT …Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. Criminal Appeal No. 740 of 2018 (preferred by original Accused
No. 1) and Criminal Appeal Nos. 1608-1609 of 2018 (preferred by original
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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. 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 daughter-in-law of the deceased. P.W.5
is the grandson of the deceased and P.W.2. P.Ws. 3
and 4 had a child also and all of 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 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.
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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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 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 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 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 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 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.
“1. Abrasion 4 cm x 4 cm left shoulder.
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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 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 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.
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.”
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 side of forehead.
3. Contusion 10 cm x 6 cm left wrist.
4. Contusion 10 cm x 10 cm back below right
shoulder.”
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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.
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.
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.
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 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.”
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:-
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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“On 27-05-1999 night at about 9.30 p.m. we all took
bed after 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 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 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 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 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 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.”
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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6. The investigation was commenced by PW17-M.Chinnathambi,
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 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 29.06.1999 to hold the TIP on 01.07.1999. The
police custody of Accused No.6 was also given for 3 days from 01.07.1999.
Thereafter, 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 made
from the concerned accused.
i) MO 18 wrist watch was recovered from Accused No.1
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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
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.
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.
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 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 witnesses were as under:-
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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 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) 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) 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 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 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 identified Arumugam
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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” 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 to 6. PW8-
Thangaraj, Village Administrative Officer, in whose presence, the
recoveries were said to have been effected, turned 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 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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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Section 395 IPC and all were awarded the sentence of life imprisonment
along with other sentences, including 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 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 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 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.
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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(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 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.
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 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 attributes were stated but
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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 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 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 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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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TIP which is part of the investigation affords a platform to lend
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 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 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:
“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
1 (2004) 13 SCC 150 2 (1981) Suppl. SCC 28 3 (1987) 3 SCC 231 4 (1982) 3 SCC 368
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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 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)
“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 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 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 held the parade
and the police officer who conducted the
investigation should have been cross-examined
in that behalf.”
5 (1973) 3 SCC 896 6 (1972) 4 SCC 773
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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 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 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.
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 appellants. This Court
after considering several decisions of this Court
including the decisions in Brij Mohan v. State of
Rajasthan8, Daya Singh v. State of Haryana9 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 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
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
7 (2003) 3 SCC 569 8 (1994) 1 SCC 413 9 (2001) 3 SCC 468 10 (2000) 1 SCC 471
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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embossed. A mere lapse of 47 days would not erase the
facial expressions from their memory.
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 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.
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 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 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 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,
11 (2003) 5 SCC 746
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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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
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 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
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 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.”
(emphasis supplied by us)
This Court thus found the evidence as regards identification to be
trustworthy and dismissed the appeal preferred by the accused.
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
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17. In Daya Singh v. State of Haryana9 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, 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 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 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. 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 the test. The Court further referred to
12 (1983) 1 SCC 143 13 (1988) 1 SCC 14
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
20
(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 become distorted and his
identification is frequently most
untrustworthy. Into the identification enter
other motives not necessarily stimulated
originally by the accused personally — the
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: (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)
‘… 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.’
20. In Rameshwar Singh v. State of J&K14 this Court
observed: [SCC p. 718, SCC (Cri) p. 641, para 6]
14 (1971) 2 SCC 715
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
21
‘… 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 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.’
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:
‘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.’ ”
13. The question, therefore, is — whether the evidence
of injured 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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
22
memory of the witnesses are brought on record, it is no
use to magnify the theoretical 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. Suresh 10
as 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 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)
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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
23
opportunity to observe the accused to have an enduring impression of the
identity of 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 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.
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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
24
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 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 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 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 to the witnesses while
they were in custody, that part by itself may not be sufficient in the light of
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
25
the discussion in Manu Sharma v. State (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 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 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 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)
“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.
11. It was contended that identification by photo
is inadmissible in evidence and, therefore, the
15 (2010) 6 SCC 1 16 (1994) 3 SCC 569 17 (2000) 1 SCC 138
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
26
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
Kartar Singh v. State of Punjab16 which struck
down Section 22 of the Terrorist and Disruptive
Activities (Prevention) Act, 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)
‘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.’
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 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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
27
the eventuality in which he would be so
proclaimed. So the observations made in Kartar
Singh 16
in a different context is of no avail to
the appellant.”
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 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
evidence of conduct of a witness in photo identifying
the accused in the presence of an IO or the Magistrate,
during the course of 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
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 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:
18 (1970) 2 SCC 128
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
28
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 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
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
main object of holding an identification
parade, during the 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 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,
19 (2005) 9 SCC 631 20 (1971) 2 SCC 75 21 (1973) 2 SCC 406
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
29
the prosecution 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 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 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 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 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 evidence and these parades are
essentially governed by Section 162 of the
Code. 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
30
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. Delhi
Admn22., Vaikuntam Chandrappa v. State of
A.P.23, Budhsen v. State of U.P. 18
and
Rameshwar Singh v. State of J&K 14
.)
* * *
19. In Harbajan Singh v. State of J&K24,
though a test 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 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)
‘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
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
22 AIR (1958) SC 350 23 AIR (1960) SC 1340 24 (1975) 4 SCC 480 25 (1970) 3 SCC 518
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
31
Munshi Ram did not disclose the names
of the two accused to the villagers only
shows that the accused were not
previously known to him and the story
that the 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 to the implication of the
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
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
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 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
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
32
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 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.”
… … …
259. In Mullagiri Vajram v. State of A.P.26 it was held
that 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. 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 presence had to be secured
only after appropriate permissions from the court;
26 1993 Supp. (2) SCC 198
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
33
(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 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 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.
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 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.
Criminal Appeal No. 740 of 2018 etc. Raja etc. vs. State by the Inspector of Police
34
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 conviction
and sentence, we dismiss these appeals.
………………………….J.
[Uday Umesh Lalit]
………………………….J.
[Indu Malhotra]
New Delhi;
December 10, 2019.