Madhya Pradesh High Court
Sambhar Singh vs State Of M.P. on 4 April, 2019
1 Criminal Appeal No.935/2012
Sambhar Singh Vs. State of M.P.
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
DIVISION BENCH:
SHEEL NAGU & G.S. AHLUWALIA, J.J.
Criminal Appeal No.935/2012
.........Appellant: Sambhar Singh
Versus
.........Respondent: State of M.P.
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Shri Ashok Jain, Advocate for appellant.
Shri R.K. Mishra, Public Prosecutor for respondent/State.
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Date of hearing : 30/03/2019
Date of Judgment : ..../04/2019
Whether approved for reporting :
Law laid down:
Significant paragraphs:
J UDGMENT
(04/04/2019)
Per Justice G.S. Ahluwalia -
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment dated 3/9/2007 passed by the Special Judge, MPDVPK, Act Shivpuri in Special Sessions Trial No.65/2006, by which the appellant has been convicted under Section 365/34 of IPC read with Section 11/13 of the MPDVPK, Act and under Section 364-A/34 of IPC 2 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. read with Section 11/13 of the MPDVPK, Act. As the appellant has been convicted under Section 364-A/34 of IPC also, therefore, he was not awarded any separate sentence for offence under Section 365/34 of IPC and the appellant has been sentenced to undergo the life imprisonment and a fine of Rs.10,000/- for offence under Section 364-A/34 of IPC.
2. The necessary facts for disposal of the present appeal in short are that on 1/11/2003 at about 3:30 PM the complainant Monu Yadav lodged a report that the bank officials, namely, Rajendra Mishra, Sanjay Mishra, Panjab Singh, Ramjivan Gupta, Dinesh Pathak (Bank Manager) and Mahendra Pal (Field Officer) had gone to the house of one Megh Singh Rawat for verification of the land mortgaged by Megh Sijngh Rawat for purchase of tractor. While these persons were inspecting the land of Megh Singh Rawat, at that time seven accused persons, who were armed with firearms, abducted them. They released Manu Yadav and One Panjab Singh on their way to forest and instructed one of the abductee-Dinesh Pathak to write a letter asking for ransom. After getting released from the custody of the dacoits, the complainant Monu Yadav lodged FIR, Ex.P/2, and accordingly, the police registered the offence under Section 364-A of IPC read with Section 11/13 of the MPDVPK, Act. The spot map, Ex.P/3, was prepared. The statements of the abductees were recorded after their release. After completing the investigation, the police filed the charge-sheet against the appellant for offence under Section 364-A of IPC read with Section 11/13 of the MPDVPK, Act.
3 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P.
3. The trial court by order dated 24/1/2006 framed the charges under Section 365/34 of IPC read with Section 11/13 of the MPDVPK, Act and under Section 364-A/34 of IPC read with Section 11/13 of the MPDVPK, Act.
4. The appellant abjured his guilt and pleaded not guilty.
5. The prosecution in order to prove its case, examined Rajendra Mishra (PW-1), Ramnivas Gupta (PW-2), Babulal Suman (PW-3), Dinesh Pathak (PW-4), Monu Yadav (PW-5), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7), Pradeep Sharma (PW-8), Mahendra Pal (PW-9) and Bala Prasad Sharma (PW-10).
6. The appellant examined Man Singh (DW-1) and Devendra Singh (DW-2) in his defence.
7. The trial court by judgment and sentence dated 3/9/2007 passed in Special Sessions Trial No.65/2006 convicted the appellant under Section 365/34 of IPC read with Section 11/13 of the MPDVPK, Act and Section 364-A/34 of IPC read with Section 11/13 of the MPDVPK, Act. As the offence under Section 365/34 of IPC is minor offence, therefore, no separate sentence has been awarded for the said Section and the appellant has been sentenced to undergo the life imprisonment and a fine of Rs.10,000/- for offence under Section 364-A/34 of IPC.
8. Challenging the judgment and sentence passed by the court below, it is submitted by the counsel for the appellant that admittedly the police did not conduct any test identification parade, therefore, under these circumstances, the dock identification of the appellant by the witnesses 4 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. should be discarded. It is further submitted that no letter of ransom has been seized by the police. According to the prosecution case, the ransom amount was paid, however, the prosecution has not examined the person, who had paid the ransom amount to the dacoits. It is further submitted that there is nothing on record to suggest that any amount was arranged by the family members of the abductees for making payment of the same to the dacoits, therefore, the allegation of abduction for the purposes of ransom has not been proved.
9. Per contra, it is submitted by the counsel for the State that the trial court after appreciating the evidence available on record has rightly convicted the appellant by assigning cogent reasons.
10. Heard learned counsel for the parties.
11. Dinesh Pathak (PW-4), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7) and Mahendra Pal (PW-9) are the abductees and they have supported the prosecution case, whereas Monu Yadav, who was also abducted by the dacoits, but was released by the dacoits and who had lodged the FIR, Ex.P/2, has turned hostile on the question of identification. Dinesh Pathak (PW-4) has stated that he alongwith the other abductees had gone to village Papredu for spot inspection of an agricultural field of a farmer. While they were inspecting the field, 7-8 dacoits came there and tied their hands and compelled them to sit in the jeep alongwith Panjab Singh Rawat and the driver of the jeep. The driver of the jeep Monu Yadav (PW-5) and Panjab Singh Rawat were released by the dacoits with an instruction that the police should have informed 5 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. about the abduction only after one hour. It was further stated by this witness that an amount of Rs.10,00,000/-was demanded by the dacoits from this witness, whereas an amount of Rs.5,00,000/- was demanded from the Cashier and an amount of Rs.2,50,000/- each was demanded from the Salesmen. Thereafter, an information was given by this witness to the family members from the mobile of one of his Salesman. About 18 days of their abduction, his brother had paid an amount of Rs.8,50,000/-, whereas an amount of Rs.2,50,000/- was paid by the family members of Mahendra Pal and in all a total amount of Rs.11,00,000/- was paid by way of ransom. The appellant was identified by this witness in the dock. This witness was cross examined by the defence and it was specifically denied by this witness that the dacoits had covered their faces and also denied that the appellant was not one of the dacoits. He further admitted that the police had not conducted the test identification parade. He further stated that after the incident, this witness has seen the appellant for the first time in the Court. This witness has also stated that he had remained in custody of dacoits for 18 days. As the dacoits used to call each other by their names, therefore, he came to know about the name of the appellant. He further denied that the appellant was shown by the police in the police station. It is important to mention here that so far as payment of ransom amount by the brother of this witness and family members of Mahendra Pal is concerned, this witness was not cross examined on that issue.
12. Sanjay Sharma (PW-6) has also narrated the entire incident and 6 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. has further identified the appellant in the dock. He has further stated that he had come to know about the name of appellant, because the dacoits were calling each other by their names, therefore, he has informed the name of the appellant to the police. He further denied that the appellant was shown by the police after his arrest. Ramjivan Gupta (PW-7) has also supported the prosecution case. Apart from narrating the entire incident, he has further stated that they were kept in captivity by the dacoits for 18 days. An amount of Rs.11,00,000/- was taken by the dacoits by way of ransom and the appellant was identified by this witness in the dock. He has further stated that while releasing an another abductee Monu Yadav (PW-5), a letter was got written, but he further admitted that the said letter is not on record. This witness has further stated in his cross examination that his statement by the Police Inspector was recorded after 3-4 days of his release. He further stated that only after receiving summons of the Court, he came to know that the appellant has been arrested. He has specifically denied that the appellant was not on the spot. He further denied that the dacoits had kept their faces covered for the entire period of captivity. On the contrary, this witness has further stated on his own that the dacoits used to sit with them. It is further stated that he cannot say that to whom an amount of Rs.11,00,000/- was given by Dinesh Pathak (PW-4), although he has stated that some currency notes were of the denomination of Rs.500/-, Rs.100/- and Rs.50/-. Mahendra Pal (PW-9) has also stated the entire incident. This witness has also identified the appellant in the dock. It is 7 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. further stated that an amount of Rs.10,00,000/- was demanded from Dinesh Pathak (PW-4). In cross examination he has stated that the letter was written by Dinesh Pathak (PW-4) and it was signed by him only. He further stated that he had never gone to the police for identification of the appellant.
13. Monu Yadav (PW-5) is the driver of the jeep, who too was abducted by the dacoits. He has stated that after travelling for a distance of about 10 Km., he and Panjab Singh were released by the dacoits. After his release, he came to Dabra and informed Rajendra Mishra (PW-1) about the abduction. Thereafter, they came to Karera, where the FIR was lodged. He has further admitted that the FIR, Ex.P/2, was lodged by him. However, this witness did not identify the appellant in the dock and he was declared hostile. In cross examination by the Public Prosecutor, it was accepted by this witness that the dacoits were taking the name of appellant also. He further denied that he has entered into a compromise with the appellant. In cross examination by the accused, this witness has stated that the owner of the jeep had also gone alongwith him to the police station for lodging the FIR, however, he denied that the FIR was lodged by somebody else and he has merely affixed his thumb impression.
14. Rajendra Mishra (PW-1) has supported the prosecution case and he has stated that he is running a Tractor Agency and one Megh Singh Rawat had expressed his willingness to purchase a tractor and for the purpose of financing the tractor, Dinesh Pathak had gone to village 8 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. Papredu for inspection of the land alongwith the other officers of the bank. Monu Chaurasiya (PW-5) was the driver of the jeep. In the evening Monu Chaurasiya (PW-5) and Panjab Singh informed that the gang of Hajrat Rawat has abducted Ramjivan, Sanjay Mishra, Dinesh Pathak (Bank Manager) and Cashier. This witness was not cross examined by the defence.
15. Ramnivas Gupta (PW-2) has stated that the owner of the Tractor Agency had come to his house and informed that Ramjivan, Cashier Mahendra Pal, Sanjay Mishra and Bank Manger have been abducted by the gang of Hajrat Rawat. This witness was also not cross examined by the defence.
16. Babulal Suman (PW-3) has stated about the declaration of reward for the arrest of the appellant. The order declaring the reward is Ex.P/1.
17. Pradeep Sharma (PW-8) is the Investigating Officer. He has stated that on 1/11/2003 he was posted on the post of SI in Police Station Karera, District Shivpuri. The complainant Monu Yadav had lodged an FIR alleging that the dacoit Hajrat Rawat and his gang members including the appellant have abducted the Bank Manager, Cashier and the Salesman and accordingly, the FIR, Ex.P/2, was registered. On 2/11/2003 spot map, Ex.P/3 was prepared on the instructions of complainant Monu Yadav and during investigation, statements of abductees were recorded. A reward of Rs.5,000/- was declared by SP, Shivpuri for the arrest of the appellant.
18. Thus, it is clear that so far as the abduction of Dinesh Pathak (PW-
9 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P.
4), Monu Yadav (PW-5), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-
7) and Mahendra Pal (PW-9) is concerned, it has been duly proved by the prosecution and the witnesses have not been cross examined in detail by the appellant. Rajendra Mishra (PW-1) and Ramnivas Gupta (PW-2) were also informed by Monu Yadav (PW-5) about the abduction. Thus, it is clear that Dinesh Pathak (PW-4), Monu Yadav (PW-5), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7) and Mahendra Pal (PW-9) were abducted by the dacoits.
19. The next question for consideration is that whether the appellant was one of the dacoits, who had abducted Dinesh Pathak (PW-4), Monu Yadav (PW-5), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7) and Mahendra Pal (PW-9) or not?
20. Monu Yadav (PW-5) has turned hostile on the question of identity, however, Dinesh Pathak (PW-4), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7) and Mahendra Pal (PW-9) have supported the prosecution case and they have identified the appellant in dock. These witnesses in their cross examination have also denied the specific suggestion that the appellant was earlier shown by the police. However, one thing is clear that the police did not conduct the test identification parade of the appellant after his arrest.
21. It is submitted by the counsel for the appellant that in absence of test identification parade conducted by the police, the dock identification of the accused in the Court should not be believed.
22. The Supreme Court in the case of Sheo Shankar Singh Vs. State 10 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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 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
11 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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. (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 12 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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."
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 13 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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 :
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 14 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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:-
"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 15 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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 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 16 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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 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:
17 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. "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 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 18 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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 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 19 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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, 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 20 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. 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 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 21 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. (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 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 22 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible."
Thus, it is clear that the dock identification of the accused in the Court is a substantive piece of evidence and so far as the test identification parade conducted by the police during the investigation is concerned, the same can only be said to be a corroborative piece of evidence, because the basic purpose of conducting the test identification parade by the police is to ascertain that whether they are proceeding in correct direction or not. However, in the present case, non-holding of test identification parade by the police cannot be said to be fatal for the simple reason that in the FIR, Monu Yadav (PW-5) had named all the dacoits including the appellant. Thus, when the appellant was arrested, there was a named FIR against him and where the identity of the appellant was not in dispute at the time of arrest of the appellant, then it was not necessary for the police to hold the test identification parade. Merely because Monu Yadav (PW-5) has failed to identify the appellant in the dock, by itself would not mean that non-holding of test identification parade by the police after the arrest of the appellant is fatal. Under these circumstances, this Court is of the considered opinion that the prosecution has succeeded in establishing beyond reasonable doubt that the appellant alongwith other members of the gang of Hajrat Rawat had abeducted Dinesh Pathak (PW-4), Monu Yadav (PW-5), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7) and Mahendra Pal (PW-
9).
23 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P.
23. So far as the question of demand of ransom and payment of ransom is concerned, Dinesh Pathak (PW-4) has specifically stated that the ransom was demanded and an amount of Rs.8,50,000/- was paid by his brother and an amount of Rs.2,50,000/- was paid by the family members of the Cashier. So far as the demand of ransom as well as payment of ransom is concerned, the defence has cross examined Dinesh Pathak (PW-4) and the allegation made by this witness in his examination-in-chief has remained unchallenged. Under these circumstances, non-examination of the brother of Dinesh Pathak (PW-4) loses its effect. Further, Monu Yadav (PW-5) has also admitted that he had lodged the FIR and in the FIR, the appellant was specifically named and the allegation of getting a letter written by Dinesh Pathak is also mentioned in the FIR. Under these circumstances, this Court is of the considered opinion that the prosecution has succeeded in establishing beyond reasonable doubt that Dinesh Pathak (PW-4), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7) and Mahendra Pal (PW-9) were abducted for ransom and not only the ransom was demanded, but it was taken by the appellant and other dacoits.
24. So far as the evidence of Man Singh (DW-1) and Devendra Singh (DW-2) are concerned, they have simply stated that the appellant was all the time present in the village and he is of a good character. Man Singh (DW-1) has stated in his cross examination that he is not aware of the fact that whether the appellant is the member of Rawat gang or not. In view of the specific evidence of Dinesh Pathak (PW-4), Monu Yadav 24 Criminal Appeal No.935/2012 Sambhar Singh Vs. State of M.P. (PW-5), Sanjay Sharma (PW-6), Ramjivan Gupta (PW-7) and Mahendra Pal (PW-9), which is supported by the FIR, Ex.P/2, this Court is of the considered opinion that the prosecution evidence cannot be discarded in the light of the defence evidence led by the appellant.
25. Accordingly, the appellant is held guilty of committing offence under Section 365/34 of IPC read with Section 11/13 of the MPDVPK, Act and Section 364-A/34 of IPC read with Section 11/13 of the MPDVPK, Act.
26. So far as the question of sentence is concerned, according to the prosecution case, the appellant was the member of gang of Hajrat Rawat and various criminal cases were registered against him and in other case the appellant has also been convicted for offence under Section 302 of IPC as well as under Section 364-A/34 of IPC read with Section 11/13 of the MPDVPK, Act as well as the minimum sentence is life imprisonment, therefore, the sentence of life imprisonment awarded by the trial court does not require any interference. The appellant is in jail.
27. Accordingly, the judgment and sentence dated 3/9/2007 passed by the Special Judge, MPDVPK, Act Shivpuri in Special Sessions Trial No.65/2006 is hereby affirmed.
28. The appeal fails and is hereby dismissed.
(Sheel Nagu) (G.S. Ahluwalia)
Judge Judge
04/04/2019 04/04/2019
Arun*
ARUN KUMAR MISHRA
2019.04.05 10:32:58 +05'30'