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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2478 OF 2014   (Arising out of S.L.P. (Crl.) No. 2480 of 2014)

Motilal Yadav … Appellant

Versus

State of Bihar …Respondent

J U D G M E N T

Prafulla C. Pant, J.

Leave granted.

2. This  appeal,  by  special  leave,  is  directed  against  

judgment and order  dated 5.11.2012,  passed by the High  

Court of Judicature at Patna, whereby the conviction of the  

accused-appellant  Motilal  Yadav  recorded  under  Section  

364A  read  with  Section  34  and  Section  120B  read  with  

Section 364A IPC by learned Additional Sessions Judge, ETC  

III, Bhagalpur, in Sessions Case No. 1053 of 2003/Trial No. 12

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of  2004,  is  affirmed.   The  accused-appellant,  along  with  

other  co-accused,  has  been  convicted  and  sentenced  to  

imprisonment for life and directed to pay fine of Rs.5,000/-  

under  Section 364A read with Section 34 IPC,  and further  

sentenced to imprisonment for a period of two years under  

Section 120B read with Section 364A IPC.

3. Heard  learned  amicus  curiae  for  the  appellant  and  

learned counsel for the respondent.

4. Prosecution  story  in  brief  is  that  PW-6,  Subhash  

Chandra Singh, gave a written information at Police Station,  

Kahalgaon,  on  23.4.2002  at  8.05  a.m.  that  his  grandson  

Sagar  Kumar  (PW-5)  has  been kidnapped.   The informant  

narrated in the written report that the victim (Sagar Kumar),  

aged six years, along with his sister PW-4 Riya Kumari, aged  

four years, was going to St. Joseph NTPC School, Kahalgaon

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in  a  rickshaw  pulled  by  PW-1  Anil  Ram.   The  informant  

further told that the rickshaw puller told him that one person  

came to the rickshaw and took the victim after telling him  

that his father was calling him at the railway station.  On  

receiving information, the informant immediately rushed to  

the location where the rickshaw puller Anil Ram (PW-1) was  

waiting for  the victim’s return.   An FIR No.  117/2002 was  

recorded at the police station and the investigations were  

taken up by the Investigating Officer.

5. Investigation revealed that after one day of kidnapping  

of  the  child,  a  demand  of  Rs.10.00  lakhs  was  made  by  

someone  on  phone  disclosing  his  name  as  Prem Prakash  

Yadav (co-accused)  for  release of  the boy.   When several  

calls were made, on 17.5.2002 the victim’s parents agreed  

to pay Rs.6.00 lakhs according to their economic condition.  

PW-3,  Sourav Kumar  (father  of  the victim)  passed on the  

phone number of the caller to the police.  The kidnappers  

called  father  of  the  victim to  Haldwani  (Uttarakhand),  on

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which  the  witness  (PW-3)  desired  to  know as  to  by  what  

route he could reach there.  The caller informed the father of  

the victim to come by Farakka Express to Lucknow, and from  

there by a meter  gauge train to  Lal  Kuan from where he  

would be getting tempo (three wheeler) to reach  Haldwani.  

Accordingly  PW-3  Sourav  Kumar  reached  Haldwani  on  

21.5.2002  with  money,  and  stayed  at  Kamta  Hotel  and  

waited for the caller’s messenger from where he was taken  

by the present appellant (Motilal Yadav) to the side of rivulet  

near Krishi Utpadan Bazar Samiti (Haldwani).  Two persons  

(co-accused)  were  already  waiting  there.   After  making  

enquiry as to the amount brought by the witness (PW-3), two  

of  the  accused  persons  took  the  bag.   Thereafter  PW-3  

Sourav Kumar was taken to Haldwani Bareilly Road where  

the victim was handed over to his father.  Victim’s father,  

along with his recovered son,  reached back Kahalgaon on  

25.5.2002, and narrated the entire story to the police.  After  

collecting  evidence  and  interrogating  the  witnesses,  

prosecution  filed  charge-sheet  against  seven  accused,  

namely,  Raghunath  Yadav,  Prem  Kumar  Yadav  @ Tuntun

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Yadav,  Motilal  Yadav  (present  appellant),  Bina  Devi,  Bijay  

Yadav, Prem Prakash Yadav and Mamta Devi.

6. It appears that the trial court, after framing the charge  

and recording evidence, on conclusion of trial, found all the  

above seven accused guilty of charge of offences punishable  

under  Section  364A  read  with  Section  34  IPC  and  under  

Section 120B read with Section 364A IPC, and after hearing  

of the matter on sentence, each one of them was sentenced  

to imprisonment for life and directed to pay fine of Rs.5,000/-  

under  Section 364A read with Section 34 IPC,  and further  

imprisonment for a period of two years under Section 120B  

read with Section 364A IPC.

7. The  convicts  challenged  the  order  of  the  trial  court  

before the High Court.  Criminal Appeal (DB) No. 208 of 2006  

was filed by accused Raghunath Yadav, Prem Kumar Yadav  

@ Tuntun Yadav and Motilal Yadav, Criminal Appeal (DB) No.

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232 of 2006 was filed by Bina Devi, Bijay Yadav and Prem  

Prakash Yadav, and Criminal Appeal (DB) No. 246 of 2006  

was filed by the accused Mamta Devi.  All the three appeals  

were disposed of  by the High Court  by its  common order  

dated 5.11.2012 which has been challenged before us in the  

present appeal by accused/convict Motilal Yadav.

8. Mr. D.N. Goburdhan, learned Amicus Curiae, on behalf  

of the appellant, argued before us that the High Court has  

decided the criminal appeals without scrutinizing the entire  

evidence  on  record,  and  as  such,  the  impugned  order  is  

liable to be set aside.  He referred to the cases of Rama and  

others v. State of Rajasthan1, Badam Singh v. State of  

M.P.2,  Prasad alias  Hari  Prasad Acharya  v.  State of  

Karnataka3 and Ram Ratan v. State of Rajasthan4.  We  

have  gone  through  the  cases  relied  on  behalf  of  the  

appellant, but we are of the view that the above mentioned  

1 (2002) 4 SCC 571 2 (2003) 12 SCC 792 3 (2009) 3 SCC 174 4 (2010) 13 SCC 509

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cases are of little help in the present case, for the reason  

that  neither  the  impugned  order  is  cryptic  nor  without  

discussion of evidence on record.  Statement of each of the  

witnesses, namely, PW-1 Anil Ram (Rickshaw Puller),  PW-2  

Neetu  Singh  (mother  of  the  victim),  PW-3  Sourav  Kumar  

(father of the victim), PW-4 Riya Kumari (sister of the victim),  

PW-5  Sagar  Kumar  (victim)  and  PW-6  Subhash  Chandra  

Singh (informant and grandfather of the victim),  has been  

discussed at length by the High Court, apart from discussing  

the evidence of formal witnesses, namely, PW-7 Ramji Singh  

(constable), PW-9 Gouri Mohan Mitra and the Investigating  

Officer PW-8 Shivjee Singh and PW-10 Anand Prakash Singh.  

The High Court has also taken note of the statement of DW-1  

Jawahar Jha.  The High Court, after discussing the evidence  

of  each  of  the  above  mentioned  witnesses,  has  further  

discussed  the  evidence  on  record  as  to  how  from  the  

corroboration of the statements of the witnesses, the entire  

prosecution story and the charge stood proved.  

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9. PW-1 Anil Ram has corroborated the fact that he was  

taking  the  children  Sagar  Kumar  and  Riya  Kumari  to  the  

school  when the accused (Prem Yadav),  identified by him  

before the trial court, took the child by telling him that his  

father was calling him at the Railway Station.  PW-2 Neetu  

Singh has corroborated that rickshaw puller Anil Ram (PW-1)  

informed on phone at 7.15 a.m. about the incident.  She has  

further corroborated the fact regarding demand of ransom  

made  by  the  kidnappers  for  release  of  the  victim  (Sagar  

Kumar).   PW-3 Sourav Kumar is the most important witness  

of the case who had opportunity to see most of the accused  

including the present appellant  (Motilal Yadav) as he went  

to Haldwani for release of his minor son from their custody.  

He (PW 3) has narrated that after the demand of ransom was  

made, he agreed to pay Rs.6.00 lakhs and sought time to  

make the arrangement of money.  He further told that on  

receiving call on 20.5.2002, he asked the caller as to how he  

could  reach  Haldwani  on  which  the  caller  told  about  the  

trains  available  for  Lucknow and  Lal  Kuan.   PW-3  Sourav  

Kumar,  has  stated  in  his  evidence that  when  he reached

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Haldwani, he stayed in Kamta Hotel.  As to the role of the  

present  appellant,  the  witness  (PW-3)  has  told  that  the  

present appellant is the person who enquired from him if he  

is father of Sagar Kumar, and then took him in a rickshaw by  

the  side  of  rivulet  near  Krishi  Utpadan  Bazar  Samiti  

(Haldwani).  The witness has further narrated about the role  

of the other accused in his statement which we do not think  

it  necessary  to  discuss  here  as  other  convicts  are  not  

appellants before us.  The witness has given all the details  

as to how money was taken  to the place where his son was  

released  and  handed  over  to  him  from  Haldwani-Bareilly  

Road.  Having gone through the record and the impugned  

order,  we  are  of  the  view  that  the  High  Court,  in  the  

impugned  order,  has  discussed  at  length  the  prosecution  

evidence which was believed by it.  We find no force in the  

argument that the High Court’s order is cryptic or brief.

10. Another argument advanced before us is that no test  

identification parade  in the present case was held, as such,  

the conviction and sentence, recorded by the trial court, has

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been wrongly upheld by the High Court.  In this connection,  

our attention is drawn to the case of Kanan and others v.  

State of Kerala5.  In said case, this Court has opined that  

failure  to  conduct  test  identification  parade raises  serious  

doubt  about  the  testimony  of  the  witnesses.   On  going  

through said case, we find that this Court doubted evidence  

of  a  particular  witness  (PW-25 of  said  case)  who told  the  

Court that he could identify the accused persons (not known  

to  him)  who  were  running  away  from  the  scene  of  

occurrence.   Contrary  to  that,  in  the  present  case  the  

testimony of PW-3 Sourav Kumar is natural as he explained  

in what manner he reached Haldwani, and he had enough  

time to identify the accused who accompanied him to the  

persons  who  took  money  from him whereafter  the  victim  

was released.

11. The  evidence  as  to  the  identity  of  a  person  is  

admissible under Section 9 of the Indian Evidence Act, 1872.  

5 (1979) 3 SCC 319

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In the case of  Ravi Kumar  v.  State of Rajasthan6,  this  

Court has opined in paragraph 35 as follows: -

“….  The  court  identification  itself  is  a  good  identification in the eye of the law.  It is not always  necessary  that  it  must  be preceded by the  test  identification parade.  It will always depend upon  the facts and circumstances of a given case.  In  one case, it  may not even be necessary to hold  the test identification parade while in the other, it  may be essential to do so.  Thus, no straitjacket  formula can be stated in this regard.”

12. In the case of R. Shaji v. State of Kerala7, regarding  

the  evidential  value  of  the  test  identification  parade,  this  

Court has stated in paragraph 58 as under: -

“…. The identification parade is conducted by the  police.   The  actual  evidence  regarding  identification is that which is given by the witness  in  court.   A test  identification parade cannot be  claimed by an accused as a matter of right.  Mere  identification of an accused in a test identification  parade is only a circumstance corroborative of the  identification of the accused in court. ….”

6 (2012) 9 SCC 284 7 (2013) 14 SCC 266

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13. In  Ashok  Debbarma  alias  Achak  Debbarma  v.  

State  of  Tripura8,  this  Court  has  made  following  

observations in para 20 which are reproduced below: -

“….. The primary object of the test identification  parade is to enable the witnesses to identify the  persons involved in the commission of offence(s) if  the  offenders  are  not  personally  known  to  the  witnesses.   The  whole  object  behind  the  test  identification parade is  really  to  find whether  or  not  the  suspect  is  the  real  offender.   In  Kanta  Prasad v.  Delhi Admn.9, this Court stated that the  failure to hold the test identification parade does  not make the evidence of identification at the trial  inadmissible. ….”

14. In view of the above principle of law laid down by this  

Court,  we are unable to accept the submission of learned  

amicus curiae that not holding of test identification parade in  

the present case is fatal for the prosecution.

8 (2014) 4 SCC 747 9 AIR 1958 SC 350

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15. For the reasons, as discussed above, we do not find any  

force  in  this  appeal  which  is  liable  to  be  dismissed.  

Accordingly the appeal is dismissed.

………………………………J. [Vikramajit Sen]

………………………………J.                                                       [Prafulla C. Pant]

New Delhi; November 25, 2014.

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