Madhya Pradesh High Court
Amar Shrivas vs The State Of Madhya Pradesh Thr. on 31 July, 2019
Equivalent citations: AIRONLINE 2019 MP 951
1 Criminal Appeal No.662/2015
Amar Shrivas Vs. State of M.P.
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.662/2015
.........Appellant: Amar Shrivas
Versus
.........Respondent: State of M.P.
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None for appellant.
As the appellant is in jail, therefore, Shri Devesh Sharma who is in
the list of Legal Aid Services Authority is appointed as amicus curiae.
Shri R.S. Bansal, Public Prosecutor for the respondent/State.
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Date of hearing : 27/07/2019
Date of Judgment : 31/07/2019
Whether approved for reporting :
Law laid down : No
Significant paragraphs :
JUDGMENT
(31/07/2019) This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 26/6/2015, by which the appellant has been convicted under Section 392 of IPC read with Section 13 of the MPDVPK, Act and has been sentenced to undergo rigorous imprisonment of five years and a fine of Rs.3,000/- with default imprisonment.
2. The necessary facts for disposal of the present appeal in short are 2 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. that on 16/12/2013 at about 4 PM, the complainant-Ku. Surabhi Sikarwar was coming back from her coaching classes and when she reached in front of CP Colony, Leather Factory she was talking on her Samsung Galaxy phone with SIM No.9074281862 and 7691915970. All of a sudden three boys, who were riding on a motorcycle, came from behind and boy sitting on the back of the motorcycle snatched her mobile and went towards SLP College. The complainant lodged the report alongwith her father, which was registered as Crime No.822/2013.
During investigation, one Discover motorcycle was recovered from the possession of co-accused Dangal Singh and a mobile of Samsung Company was recovered from the possession of the appellant. The police after completing the investigation, filed the charge-sheet for offence under Section 392/34 of IPC and under Section 11/13 of the MPDVPK, Act against the appellant and the co-accused Dangal Singh.
3. The trial court by order dated 30/10/2014 framed charges under Section 392 of IPC read with Section 13 of the MPDVPK, Act. The appellant as well as the co-accused abjured their guilt and pleaded not guilty.
4. The prosecution in order to prove its case examined Mansingh Sikarvar (PW-1), Surabhi Sikarvar (PW-2), Abhishek Shrivastava (PW-
3), Yogendra Singh Sengar (PW-4), Satyagopal (PW-5) and C.S. Tomar (PW-6).
5. The appellant did not examine anybody in his defence.
6. The trial court by judgment dated 26/6/2015 acquitted the co-
3 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. accused Dangal Singh of all the charges and convicted the appellant for offence under Section 392 of IPC read with Section 13 of the MPDVPK Act and sentenced him to undergo rigorous imprisonment of five years and a fine of Rs.3,000/- with default imprisonment.
7. Challenging the judgment and sentence passed by the court below, it is submitted by the counsel for the appellant that the identification of the appellant is not established beyond reasonable doubt. The seized mobile was not produced in the court and was not even put for identification.
8. Per contra, it is further submitted by the counsel for the State that the complainant in her statement under Section 161 of Cr.P.C. had clearly disclosed the EMEI number of the mobile, which was recovered from the possession of the appellant. Further, the complainant has identified the appellant in dock and merely because the dock identification was not preceded by the TIP, would not mean that the dock identification has no value. On the contrary dock identification is the substantive piece of evidence.
9. Heard learned counsel for the parties.
10. From the order-sheets of the trial court, it appears that after the appellant was arrested. The mobile was seized from the possession of the appellant on 4/8/2014 and in the seizure memo EMEI number of the seized mobile is 358870/05/112307/7 and 358871/05/112307/6 are specifically mentioned. The seizure memo is Ex.P/6. The complainant filed an application under Section 451/457 of Cr.P.C. for interim custody 4 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. of the mobile. At the time of consideration of the application under Section 451/457 of Cr.P.C. the complainant had produced the receipt of purchase of the said mobile in which the EMEI number was mentioned and accordingly, the trial court had given the seized mobile to the interim custody of the complainant. Furthermore, the appellant has not produced any document to show that the mobile seized from his custody was his property. Although the seizure witnesses, namely, Abhishek Shrivastava (PW-3) and Yogendra Singh Sengar (PW-4) have not supported the prosecution case and they have turned hostile, but Satyagopal (PW-5) who had partially investigated the matter had stated that the appellant had made confessional statement before him and had informed that he has kept the mobile in his house. The memorandum is Ex.P/4. Vide seizure memo. Ex.P/6, the mobile was seized from the possession of the appellant and in the seizure memo itself the EMEI number was mentioned and the trial court while allowing the application under Section 451/457 of Cr.P.C. had verified that the complainant was prima facie owner of the mobile in question as she was having the receipt of purchase of the said mobile. Thus, it is clear that the prosecution has succeeded in establishing that the mobile bearing EMEI No. 358870/05/112307/7 and 358871/05/112307/6 was seized from the possession of the appellant and since the appellant could not explain as to how he came in possession of the said mobile, therefore, it is held that the mobile which was snatched from the hand of the complainant was seized from the possession of the appellant.
5 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P.
11. Now the next question for consideration is that whether the prosecution has proved the identification of the appellant beyond reasonable doubt or not?
12. Surabhi Sikarvar (PW-2) in examination-in-chief had specifically stated that the co-accused Dangal Singh was not sitting on the back of the motorcycle and he had not snatched the mobile. In paragraph 3 of her evidence she had identified the appellant in dock and pointed out that it was the appellant who had snatched the mobile. The trial court has appended a note that at the time of dock identification, three other persons who were accused in another case as well as the appellant and the co-accused Dangal Singh were standing in the dock. Thus, it is clear from the dock identification that the complainant Surabhi Sikarvar (PW-
2) had identified the appellant out of five persons. The dock identification had taken place within a period of one year from the date of the incident. So far as the submission made by the counsel for the appellant that since the dock identification was not preceded by the test identification parade, therefore, the dock identification should not be relied upon is concerned, suffice it to say that the test identification parade is meant for the police to find out that whether the investigation is proceeding in a right direction or not and it is not a substantive piece of evidence.
13. The Supreme Court in the case of Sheo Shankar Singh Vs. State of Jharkhand reported in (2011) 3 SCC 654 has held as under :
46. It is fairly well settled that identification of the accused in the court by the witness constitutes the 6 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the court who claims to identify the accused persons otherwise unknown to him. Test identification parades, therefore, remain in the realm of investigation.
47. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the court even without insisting on corroboration.
48. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a reference to the following observations made by this Court in Malkhansingh v. State of M.P. [(2003) 5 SCC 746]:
(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 7 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. 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. (See Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350], Vaikuntam Chandrappa v. State of A.P. [AIR 1960 SC 1340], Budhsen v. State of U.P. [(1970) 2 SCC 128 ] and Rameshwar Singh v. State of J&K [(1971) 2 SCC 715].)"
49. We may also refer to the decision of this Court in Pramod Mandal v. State of Bihar [(2004) 13 SCC 150 ] where this Court observed: (SCC p. 158, para
20) "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 8 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. 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."
50. The decision of this Court in Malkhansingh case [(2003) 5 SCC 746]: and Aqeel Ahmad v. State of U.P. [(2008) 16 SCC 372 ] adopt a similar line of reasoning.
The Supreme Court in the case of Prakash Vs. State of Karnataka reported in (2014) 12 SCC 133 has held as under :
15. An identification parade is not mandatory (Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284) nor can it be claimed by the suspect as a matter of right. ( R. Shaji v. State of Kerala, (2013) 14 SCC 266 )The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. ( Rameshwar Singh v. State of J&K, (1971) 2 SCC 715 ) If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable (Mulla v. State of U.P., (2010) 3 SCC 508,Kishore Chand v. State of H.P., (1991) 1 SCC 286 ) unless the suspect has been seen by the witness or victim for some length of time. (State of U.P. v. Boota Singh, (1979) 1 SCC 31 ) In Malkhansingh v. State of M.P. (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7) "7. ... 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."
The Supreme Court in the case of State of Rajasthan Vs. Daud Khan reported in (2016) 2 SCC 607 has held as under :
9 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. Dock identification: Submissions and discussion
42. It was contended by Daud Khan that the three chance witnesses, PW 7 Mahabir Singh, PW 23 Narender Singh and PW 24 Rishi Raj Shekhawat were all from out of town. As such, they could not have identified Daud Khan or Javed. It was further contended that no test identification parade (for short "TIP") was conducted and reliance could not have been placed only on their dock identification.
43. No such argument was raised by Daud Khan either in the trial court or in the High Court and we see no reason to permit such an argument being raised at this stage.
44. That apart, it was recently held in Ashok Debbarma v. State of Tripura that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions. Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi).
45. In any event, there were two other witnesses to the shooting, namely, PW 11 Narendra Kumawat and PW 19 Suraj Mal who were local residents and knew Nand Singh and Daud Khan and could easily identify them.
46. Five witnesses have testified to the events that took place at Bathra Telecom on the night of 19-6-
2004. We see no reason to disbelieve any of them, particularly since they have all given a consistent statement of the events. There are some minor discrepancies, which are bound to be there, such as the distance between the gun and Nand Singh but these do not take away from the substance of the case of the prosecution nor do they impinge on the credibility of the witnesses.
The Supreme Court in the case of Mukesh and another Vs. State (NCT of Delhi) and others reported in (2017) 6 SCC 1, has held as under:-
10 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. "143. In Santokh Singh v. Izhar Hussain, it has been observed that the identification can only be used as corroborative of the statement in court.
144. In Malkhansingh v. State of M.P., it has been held thus:
"7. ... 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. ..."
And again:
"16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. ..."
145. In this context, reference to a passage from Visveswaran v. State represented by S.D.M. would be apt. It is as follows:
"11. ...The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. ..."
146. In Manu Sharma v. State (NCT of Delhi), the Court, after referring to Munshi Singh Gautam v. State of M.P., Harbhajan Singh v. State of J&K and Malkhansingh (supra), came to hold that the proposition of law is quite clear that even if there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive.
147. In the case at hand, the informant, apart from 11 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. identifying the accused who had made themselves available in the TIP, has also identified all of them in Court. On a careful scrutiny of the evidence on record, we are of the convinced opinion that it deserves acceptance. Therefore, we hold that TIP is not dented." The Supreme Court in the case of Prakash Vs. State of Karnataka reported in (2014) 12 SCC 133, has held as under :
"15. An identification parade is not mandatory (2012) 9 SCC 284 nor can it be claimed by the suspect as a matter of right. (2013) 14 SCC 266 The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. (1971) 2 SCC 715 If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable (2010) 3 SCC 508 unless the suspect has been seen by the witness or victim for some length of time. (1979) 1 SCC 31 In Malkhansingh v. State of M.P. (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7) "7. ... 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."
16. However, if the suspect is known to the witness or victim (1970) 3 SCC 518 or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media (2013) 14 SCC 266 no identification evidence is necessary. Even so, the failure of a victim or a witness to identify a suspect is not always fatal to the case of the prosecution. In Visveswaran v. State (2003) 6 SCC 73 it was held:
(SCC p. 78, para 11) "11. ... The identification of the accused 12 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. either in a test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established.
Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence."
The Supreme Court in the case of State of Rajasthan Vs. Daud Khan reported in (2016) 2 SCC 607 has held as under :
44. That apart, it was recently held in Ashok Debbarma v. State of Tripura (2014) 4 SCC 747 that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions. AIR 1958 SC 350 Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1.
The Supreme Court in the case of Suraj Pal Vs. State of Haryana reported in (1995) 2 SCC 64 has held as under:
"14......... It may be pointed out that the holding of identification parades has been in vogue since long in the past with a view to determine whether an unknown person accused of an offence is really the culprit or not, to be identified as such by those who claimed to be the eyewitnesses of the occurrence so that they would be able to identify the culprit if produced before them by recalling the impressions of his features left on their mind. That being so, in the very nature of things, the identification parade in such cases serves a dual purpose. It enables the investigating agency to ascertain the correctness or otherwise of the claim of those witnesses who claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect from the sudden risk of being identified in the dock by such witnesses 13 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. during the course of the trial. This practice of test identification as a mode of identifying an unknown person charged of an offence is an age- old method and it has worked well for the past several decades as a satisfactory mode and a well- founded method of criminal jurisprudence. It may also be noted that the substantive evidence of identifying witness is his evidence made in the court but in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident, in that event identification of the accused at the earliest possible opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the court after some lapse of time."
The Supreme Court in the case of Dara Singh Vs. Republic of India reported in (2011) 2 SCC 490, it has been held as under :
"40. It is relevant to note that the incident took place in the midnight of 22-1-1999/23-1-1999. Prior to that, a number of investigating officers had visited the village of occurrence. Statements of most of the witnesses were recorded by PW 55, an officer of CBI. In the statements recorded by various IOs, particularly the local police and State CID, these eyewitnesses except few claim to have identified any of the miscreants involved in the incident. As rightly observed by the High Court, for a long number of days, many of these eyewitnesses never came forward before the IOs and the police personnel visiting the village from time to time claiming that they had seen the occurrence. In these circumstances, no importance need to be attached on the testimony of these eyewitnesses about their identification of the appellants other than Dara Singh (A-1) and Mahendra Hembram (A-3) before the trial court for the first time without corroboration by previous TIP held by the Magistrate in accordance with the procedure established.
41. It is a well-settled principle that in the absence of any independent corroboration like TIP held by the Judicial Magistrate, the evidence of eyewitnesses as to the identification of the appellant-accused for the first time before the trial 14 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. court generally cannot be accepted. As explained in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, that if the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence, which are lacking in the case on hand except for A- 1 and A-3.
42. In the same manner, showing photographs of the miscreants and identification for the first time in the trial court without being corroborated by TIP held before a Magistrate or without any other material may not be helpful to the prosecution case. To put it clearly, the evidence of witness given in the court as to the identification may be accepted only if he identified the same persons in a previously held TIP in the jail.
43. It is true that absence of TIP may not be fatal to the prosecution. In the case on hand, A-1 and A-3 were identified and also corroborated by the evidence of slogans given in his name and each one of the witnesses asserted the said aspect insofar as they are concerned. We have also adverted to the fact that none of these witnesses named the offenders in their statements except few recorded by IOs in the course of investigation. Though an explanation was offered that out of fear they did not name the offenders, the fact remains, on the next day of the incident, the Executive Magistrate and top-level police officers were camping in the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable to 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 TIP. Though some of them were identified by the photographs except A-1 and A-3, no other corroborative material was shown by the prosecution.
44. Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time.
45. The learned Additional Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, 15 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. heavily relied on the decision of this Court in Manu Sharma (2010) 6 SCC 1. It was argued in that case that PW 2, Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence.
46. In SCC para 254, this Court held: (Manu Sharma case (2010) 6 SCC 1, SCC p. 96) "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."
47. It was further held: (Manu Sharma case (2010) 6 SCC 1, SCC pp. 98-99, para 256) "256. ... '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 16 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. 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.'*"
It was further held that: (Manu Sharma case (2010) 6 SCC 1, SCC p. 99, para 259) "259. ... The photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath."
48. In Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau (2000) 1 SCC 138 the following conclusion is relevant: (SCC p. 143, para 12) "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 17 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. 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."
49. In Dana Yadav v. State of Bihar (2002) 7 SCC 295, SCC para 38, the following conclusion is relevant: (SCC p. 316) "(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law."
50. It is clear that identification of accused persons by a witness in the dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible."
Thus, it is clear that in order to rely upon the dock identification of accused, it is not necessary that the Test Identification Parade should have been conducted by the Police during investigation and in fact the dock identification is the substantive piece of evidence and if the evidence of a witness is found reliable, then the identification of the accused in the dock can be relied upon.
14. Thus, it is clear that the prosecution has succeeded in establishing beyond reasonable doubt that it was the appellant who had snatched the 18 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. mobile and the looted mobile was also seized from his possession and the appellant could not explain as to how he came in possession of the same. Accordingly, the conviction of the appellant for offence under Section 392 of IPC read with Section 13 of the MPDVPK, Act is hereby affirmed.
15. It is next contended by the counsel for the appellant that the appellant was arrested on 4/8/2014 and was released on bail on 3/11/2014, i.e. he had remained in jail for a period of three months during trial and thereafter, he was taken in custody on the date of conviction and was granted bail by this Court by order dated 3/2/2016.
Thereafter, as the appellant did not appear before the Registry of this Court, therefore, warrants of arrest were issued and warrants of arrest were received back with an endorsement that the appellant is in Central Jail, Gwalior in connection with criminal case No.3592/2015 pending before the Court of JMFC, Gwalior. Accordingly, he was produced in execution of production warrant and from then, he is still in jail. It is further submitted that the appellant is a young boy aged about 20 years and the jail sentence of five year may be reduced.
16. Heard learned counsel for the parties.
17. For offence under Section 392 of IPC no minimum sentence is provided, whereas for offence under Section 13 of the MPDVPK, Act the minimum sentence is three years. Thus, under the facts and circumstances of the case, this Court is of the considered opinion that the ends of justice would serve if the rigorous imprisonment of five years is 19 Criminal Appeal No.662/2015 Amar Shrivas Vs. State of M.P. reduced to rigorous imprisonment of three years by enhancing the fine.
Accordingly, maintaining the conviction of the appellant under Section 392 of IPC read with Section 13 of the MPDVPK, Act, it is directed that the appellant shall undergo the rigorous imprisonment of three years and a fine of Rs.15,000/- (Rs. Fifteen Thousand Only) and in default, he shall undergo the rigorous imprisonment of six months.
18. With aforesaid modification, the judgment and sentence dated 26/6/2015 passed in SST No.44/2014 by Special Judge (MPDVPK, Act) Gwalior is hereby affirmed. The appellant is in jail, he be released after undergoing the jail sentence.
19. Accordingly, the appeal succeeds in part and is allowed to the extent mentioned above.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2019.08.01 10:46:22 +05'30'