1996 JTR(SC) 746
1996 2 AICLR 272 ; 1996 AIR(SC) 2511 ; 1996 AIR(SCW) 3119 ; 1996 2 BLJR 1400 ; 1996 2 CCR(SC) 35 ; 1996 CriLR 762 ; 1996 CrLJ 3585 ; 1996 2 EastCrC(SC) 283 ; 1997 10 JT 478 ; 1997 MLJ(Cri) 459 ; 1997 1 RCR(Cri) 54 ; 1996 3 Scale 441 ; 1996 8 SCC 630 ; 1996 SCC(Cri) 726 ; 1996 1 SCC(Cri) 726 ; 1996 Supp1 SCR 163 ; 1996 KHC 1139 ; 1996 3 Supreme 567
1996(3) Supreme 567
SUPREME COURT OF INDIA
M.M. Punchhi & Sujata V. Manohar, JJ.
Ram Nath Mahto -Appellant
versus
State of Bihar -Respondent
Criminal Appeal No. 225 of 1987
Decided on 10-4-1996
Act
Referred
:EVIDENCE ACT : S.9
INDIAN PENAL CODE : S.396
A) The Evidence Act, Section 9, governs the admissibility of testimony concerning identification conducted during a Test Identification Parade, where such evidence is relevant to establishing the identity of an accused. read with Indian Penal Code, Section 396, which defines the offence of dacoity, punishable with life imprisonment or rigorous imprisonment for up to ten years, or with fine, and mandates that the use of violence in the pursuit of the dacoity attracts enhanced penalties. In this case, the provisions intersect as the accused was convicted for participating in a night robbery on a moving train, with the primary dispute centering on the reliability of the Test Identification Parade and the evaluation of corroborative oral evidence under Section 9 of the Evidence Act.
B) Key legal principles include that evidence from a Test Identification Parade is not substantive by itself and is governed by Section 162 of the Code of Criminal Procedure, but may be considered relevant under Section 9 of the Evidence Act when supported by additional substantive evidence and assessed through the lens of the witness's demeanour. The court must scrutinize the reliability of such identification, particularly where a witness retracts their earlier identification, and may rely on the testimony of a Magistrate who conducted the parade if it is deemed trustworthy.
Facts of the case:
The accused was arrested for participating in a night dacoity on a running train traveling from Katihar to Calcutta in Bihar, where a robbery resulted in a fatality and injuries to several passengers, including a Ticket Examiner. The accused was identified by a witness, P.W. 6, during a Test Identification Parade conducted by a Judicial Magistrate. At trial, the witness did not identify the accused, claiming fear, but the Trial and High Courts placed reliance on the Magistrates testimony that the witness had identified the accused at the parade, along with observations of the witness's demeanour, thereby upholding the conviction under Section 396 IPC.
Findings of Court:
The High Court confirmed the conviction, finding that while the Test Identification Parade evidence alone is not substantive, it could be evaluated alongside the substantive evidence of the Magistrate and the Trial Judges observations regarding the witness's fear and demeanour. The court determined that the oral evidence of the Magistrate, who conducted the parade, was credible and sufficient to support the identification.
Issues:
Whether Test Identification Parade evidence, which is not substantive in nature, can be used as a basis for conviction when corroborated by credible oral evidence and judicial observations of witness demeanour under Section 9 of the Evidence Act.
Ratio Decidendi:
The Test Identification Parade evidence, though not substantive, gains relevance under Section 9 of the Evidence Act when reinforced by reliable substantive evidence and judicial assessment of witness credibility; the High Court was justified in relying on the Magistrates testimony and the surrounding circumstances to uphold the conviction.
Result:
The appeal is dismissed, and the conviction under Section 396 IPC is upheld with a sentence of ten years rigorous imprisonment.
A) The Evidence Act, Section 9, governs the admissibility of testimony concerning identification conducted during a Test Identification Parade, where such evidence is relevant to establishing the identity of an accused. read with Indian Penal Code, Section 396, which defines the offence of dacoity, punishable with life imprisonment or rigorous imprisonment for up to ten years, or with fine, and mandates that the use of violence in the pursuit of the dacoity attracts enhanced penalties. In this case, the provisions intersect as the accused was convicted for participating in a night robbery on a moving train, with the primary dispute centering on the reliability of the Test Identification Parade and the evaluation of corroborative oral evidence under Section 9 of the Evidence Act.
B) Key legal principles include that evidence from a Test Identification Parade is not substantive by itself and is governed by Section 162 of the Code of Criminal Procedure, but may be considered relevant under Section 9 of the Evidence Act when supported by additional substantive evidence and assessed through the lens of the witness's demeanour. The court must scrutinize the reliability of such identification, particularly where a witness retracts their earlier identification, and may rely on the testimony of a Magistrate who conducted the parade if it is deemed trustworthy.
Facts of the case:
The accused was arrested for participating in a night dacoity on a running train traveling from Katihar to Calcutta in Bihar, where a robbery resulted in a fatality and injuries to several passengers, including a Ticket Examiner. The accused was identified by a witness, P.W. 6, during a Test Identification Parade conducted by a Judicial Magistrate. At trial, the witness did not identify the accused, claiming fear, but the Trial and High Courts placed reliance on the Magistrates testimony that the witness had identified the accused at the parade, along with observations of the witness's demeanour, thereby upholding the conviction under Section 396 IPC.
Findings of Court:
The High Court confirmed the conviction, finding that while the Test Identification Parade evidence alone is not substantive, it could be evaluated alongside the substantive evidence of the Magistrate and the Trial Judges observations regarding the witness's fear and demeanour. The court determined that the oral evidence of the Magistrate, who conducted the parade, was credible and sufficient to support the identification.
Issues:
Whether Test Identification Parade evidence, which is not substantive in nature, can be used as a basis for conviction when corroborated by credible oral evidence and judicial observations of witness demeanour under Section 9 of the Evidence Act.
Ratio Decidendi:
The Test Identification Parade evidence, though not substantive, gains relevance under Section 9 of the Evidence Act when reinforced by reliable substantive evidence and judicial assessment of witness credibility; the High Court was justified in relying on the Magistrates testimony and the surrounding circumstances to uphold the conviction.
Result:
The appeal is dismissed, and the conviction under Section 396 IPC is upheld with a sentence of ten years rigorous imprisonment.
ORDER
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 Court, it was reduced to ten years rigorous imprisonment.
2. It was a night robbery in a running train. The appellant 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 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 identification parade conducted by Judicial Magistrate, Bharatji Misra, P.W. 7. Thereat, P.W. 6 was able to identify the appellant as one of the dacoits 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.
3. At the trial P.W. 7 fully supported the prosecution case, deposing 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 perhaps was afraid of the accused as he was trembling at the stare of Ram Nath, accused. It thus became evident that the witness was 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 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.
4. As was done before the courts below, learned counsel for the appellant has relied upon a decision of this Court in Budhsen & Anr. v. State of U.P.1 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 established, the Test Identification Parade could not be considered to provide safe and trustworthy evidence on which conviction could be sustained. That case was distinguished by the courts below and in our view rightly, by taking 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 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.
5. 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.
Appeal dismissed.
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