Raja v. State by the Inspector of Police

D) PW4-Thangammal had following injury:- “A lacerated wound 10 cm x 1 cm x bone deep extending from forehad vertically to middle head.” E) Following injuries were found on the person of PW5-Sengodan. “1. Contusion 10 cm x 10 cm left knee.

2. Abrasion 6 cm x ¼ cm right thigh middle front.”

5. At about 6.00 a.m. on 28.05.2009, complaint (Exhibit-P[1]) was made by PW1-Sundararajan, pursuant to which FIR No.238/1999 was registered with Singarapettai Police Station, as under:- “On 27-05-1999 night at about 9.30 p.m. we all took bed after food. My father and mother were sleeping in the tractor shed in front of the house. My brother’s son Sengodan was sleeping in the veranda of the house. My younger brother Kumar and his wife Thangam with her child Manju were sleeping in the southern side room of the house. I was sleeping in the northern side room of the house. At about 1.00 clock in the midnight I heard noise of my father, woke up and came out of the room. At that time a person wearing red colour shirt came there with a stick in a hand and found sitting. A group of 6 persons were attacking and beating my father with stick and koduval. One among them cut the gold chain of about 5 sovereigns and removed I cried and raised noise. Those persons attacked me with stick and koduval on my head and all over the body. On hearing my noise my younger brother Kumar came out running from the room and his hands were tied from behind by them and he was beaten with sticks. His wife Thangam came out to avert the beating but she was also attacked by koduval. They removed the gold chain of 10 sovereigns worn by her, a pair of silver leg chain worn by her also snatched by them. Then they entered into the house and broke open the bureau and removed the silver waist chord and silver leg chain worn by child. At that time my brother’s son Sengodan raised noise and he was also attacked. All the people ran away. They were 7 members of aged group from 20 to 25. On hearing our noise the villagers consisting of Ramasundaram and Srinivasan etc. came and took us to the Government Hospital, Uthangarai at about 4.00 am in the early morning. I came to know that my father Sengodan died. Others were admitted in the Hospital treated by the Doctor. The value of stolen articles will be Rs.45000/- (Forty five thousand). I can identify the jewels stolen if recovered. I can also identify the persons who came and stole the jewels and killed my father and attacked us, if they are found.”

6. The investigation was commenced by PW17-M.Chinnathambi, Deputy Superintendent of Police. Accused No.1-Raja, Accused No.2- Govindraj, Accused No.3-Palani, Accused No.4-Vandikaran @ Murugan, Accused No.5-Elumalai and Accused No.7- Arumugam were arrested on 21.06.1999 while Accused No.6-Chinnapaiyan surrendered himself before the Magistrate on 22.06.1999, who remanded him to judicial custody on the same day. On 27.06.1999 requisition was made by the Investigating Officer for conducting Test Identification Parade (TIP for short) insofar as all the arrested accused were concerned. On 28.6.1999 an application was made by the Investigating Officer seeking permission to take Accused No.6 – Chinnapaiyan in police custody. The permission was granted by the concerned Magistrate on 29.06.1999 to hold the TIP on 01.07.1999. The police custody of Accused No.6 was also given for 3 days from 01.07.1999. Thereafter, the TIP was held on 01.07.1999, in which PWs 1 to 5 identified the concerned accused. The TIP was conducted in the presence and under the supervision of PW11-Boopalan, who was then working as Sub-Judge, Rani Pettai.

7. During the course of investigation, following recoveries were made from the concerned accused. i) MO 18 wrist watch was recovered from Accused No.1 ii) MO 12 gold chain, MOs 21, 23 & 24 gold articles, MOs 46 and 47 clothes having blood stains were recovered from Accused No.2 iii) MOs 48 and 49 namely clothes including a red shirt were recovered from Accused No.3. iv) MOs 13, 14, 15 and 19 being gold articles were recovered from Accused No. 4. v) MOs 6 and 16 being gold articles were recovered from Accused No. 5. vi) MO 17 a wrist watch and MOs 43 and 56 being gold articles were recovered from Accused No. 6.

8. After completion of investigation, the aforementioned seven accused persons were charged of having committed various offences including those punishable under Sections 109, 120B, 394, 395, 396, 449 of the Indian Penal Code, 1860 (‘IPC’, for short). The prosecution, in support of its case, principally relied upon the testimonies of PWs 1 to 5 who identified Accused Nos. 1 to 6 to be the assailants. All the witnesses, however, stated that Accused No. 7 was not present as a member of the assembly. In their cross examination, it was suggested to all the witnesses that the accused were shown to the witnesses while they were in custody and that their photographs were also published in newspapers before the TIP was undertaken. The responses of these witnesses were as under:a) PW1-Sundararajan stated:- “Police showed the jewels and the accused and asked us to identify them as to whether they are the persons who are caught. We did not see in the police station. We saw in the papers. I do not know whether it was published in the paper 25 days after the occurrence. It is not correct to say that I identified them in the Central Jail because I saw them already in the papers. It is not correct to say that I identified them in the Jail because I saw them in the police station and in the papers already.” b) PW2-Erusayee stated:- “At the time of occurrence totally 6 persons came. I saw them for the first time only then. I have not seen them before. Police said that they were caught I saw in the police station then saw them in the Central Jail, Salem.” c) PW3-Kumar stated:- “In the enquiry by the police I have stated that, 6 unidentifiable persons came and attacked. I did not say that identifiable persons attacked us. I have stated I can identify them if seen. I identified in the police station. … …I identified in the Singarapettai Police Station one month after the occurrence.” d) PW4-Thangammal stated:- “It is not correct to say that I am deposing falsely that gold chain of 4 sovereigns was stolen. Singarapettai Police also came and wrote. Police asked in the Salem Jail thereafter. I identified in Salem. We identified in Morappur police station.” e) PW5-Sengodan stated:- “I did not say the identity of the accused when police examined me. It is not correct to say that, I am deposing falsely because of enmity between our family and Arumugam’s family or that I identified Arumugam in the jail. It is not correct to say that because police showed me the photos of the accused which were published in the paper and I was already shown the accused in Morappur police station, I was called for identification and so I identified the accused. The daily newspaper “Dhina Thanthi” was not coming to our village at that time.”

9. PW11-Boopalan, Sub-Judge in whose presence the TIP was conducted, stated that the Accused Nos.[1] to 6 were made to stand for identification along with 19 other inmates from the Central Prison who were used as dummies and that PWs.[1] to 5 identified Accused Nos.[1] to 6. PW8- Thangaraj, Village Administrative Officer, in whose presence, the recoveries were said to have been effected, turned hostile. The prosecution did not examine the other Panch, Kasim. PW17, the Investigating Officer, in his cross examination by the Accused 1 to 5 and 7 stated:- “It is not correct to say that, the accused 1 to 5 and 7 were brought to Singarapettai Police station where they were shown to the witnesses and identified. I do not know if the photos of the accused 1 to 5 and 7 were already published in the newspaper before 21-06- 1999.”

10. The case of the prosecution was accepted by the Additional Sessions Judge, Krishnagiri, who by the judgment dated 24.07.2012 found Accused Nos.[1] to 6 guilty of the offences punishable under Sections 394, 396, 449 IPC. Accused Nos. 1 to 3 were also convicted under Section 395 read with Section 397 IPC while Accused Nos. 2, 4, 5 and 6 were convicted under Section 395 IPC and all were awarded the sentence of life imprisonment along with other sentences, including payment of fine and default sentences. Accused No.7 was, however, acquitted of all the charges.

11. Thereafter, Criminal Appeal No.604 of 2012 was preferred by Accused Nos. 1 to 5 while Criminal Appeal No.92 of 2013 was preferred by Accused No.6. By its common judgment and order dated 27.04.2016 the High Court affirmed the view taken by the Trial Court and dismissed both the appeals. Being aggrieved, Accused Nos.1, 2, 3, 5 and 6 have preferred these Criminal Appeals. We have heard Mr. Rahul Shyam Bhandari, learned Advocate for the Accused No.1 and Mr. Gopal Sankaranarayanan, learned Senior Advocate for the other accused and Mr. M. Yogesh Kanna, learned Advocate for the State.

12. The principal submissions advanced on behalf of the appellants are: (a) The initial reporting shows that the identity of the assailants was not known to any of the witnesses. The admissions given by PWs. 1, 2, 3 and 4 in their cross-examination show that the accused were shown to the witnesses in the Police Station. It is accepted that the photographs of the accused were published in local newspapers. (b) According to the initial version of the prosecution, Accused No.7, a neighbour living in the vicinity was responsible for the crime and the appellants were said to be his accomplices. However, every eye-witness stated that Accused No.7 was not involved in the crime. The acquittal of said Accused No.7 was accepted by the prosecution. There was thus no connection of the appellants with the crime.

(c) The recoveries were not supported by PW8-Thangaraj. The other Panch was also not examined.

13. Mr. Kanna, learned advocate for the State, however, submitted that as found by the Courts below, the eye-witness account through PWs.[1] to 5 was clear, cogent and completely reliable. Every one of those prosecution witnesses had suffered injuries; their presence could never be doubted; and considering the nature of injuries the opportunity available to them to observe the features of each of the Accused was quite sufficient.

14. In the present case, the incident occurred after mid night. The prosecution witnesses 1 to 5 suffered injuries in the transaction but the initial reporting showed that the identity of the assailants was not known to the witnesses. It is true that no identification marks or attributes were stated but it was asserted that the assailants were in the age group of 20 to 25 and one of the assailants had worn a red colour shirt. Further, if the nature and number of injuries suffered by each of the witnesses are considered, the assailants must have been quite close to the witnesses to afford to the witnesses sufficient time and opportunity to observe their features.

15. It has been accepted by this Court that what is substantive piece of evidence of identification of an accused, is the evidence given during the trial. However, by the time the witnesses normally step into the box to depose, there would be substantial time gap between the date of the incident and the actual examination of the witnesses. If the accused or the suspects were known to the witnesses from before and their identity was never in doubt, the lapse of time may not qualitatively affect the evidence about identification of such accused, but the difficulty may arise if the accused were unknown. In such cases, the question may arise about the correctness of the identification by the witnesses. The lapse of time between the stage when the witnesses had seen the accused during occurrence and the actual examination of the witnesses may be such that the identification by the witnesses for the first time in the box may be difficult for the court to place complete reliance on. In order to lend assurance that the witnesses had, in fact, identified the accused or suspects at the first available opportunity, the TIP which is part of the investigation affords a platform to lend corroboration to the ultimate statements made by the witnesses before the Court. However, what weightage must be given to such TIP is a matter to be considered in the facts and circumstances of each case.

16. Again, there is no hard and fast rule about the period within which the TIP must be held from the arrest of the accused. In certain cases, this Court considered delay of 10 days to be fatal while in other cases even delay of 40 days or more was not considered to be fatal at all. For instance, in Pramod Mandal v. State of Bihar[1] the accused was arrested on 17.01.1989 and was put up for Test Identification on 18.02.1989, that is to say there was a delay of a month for holding the TIP. Additionally, there was only one identifying witness against the said accused. After dealing with the decisions of this Court in Wakil Singh v. State of Bihar[2], Subhash v. State of Uttar Pradesh[3] and Soni v. State of Uttar Pradesh[4] in which benefit was conferred upon the accused because of delay in holding the TIP, this Court considered the line of cases taking a contrary view as under:

In the instant case we find that the defence has not imputed any motive to the prosecution for the delay in holding the test identification parade, nor has the defence alleged that there was any irregularity in the holding of the test identification parade. The evidence of the Magistrates conducting the test identification parade as well as the investigating officer has gone unchallenged. Learned counsel for the State is, therefore, justified in contending that in the facts and circumstances of this case the holding of the test identification parade, about one month after the occurrence, is not fatal to the case of the prosecution as there is nothing to suggest that there was any motive for the prosecution to delay the holding of the test identification parade or that any irregularity was committed in holding the test identification parade.

19. Learned counsel for the State has also relied upon the decision of this Court in Anil Kumar v. State of U.P.[7] wherein the test identification parade was held 47 days after the arrest of the appellants. This Court after considering several decisions of this Court including the decisions in Brij Mohan v. State of Rajasthan[8], Daya Singh v. State of Haryana[9] and State of Maharashtra v. Suresh10 concluded that since the identifying witness was attacked by the assailants including the appellant and another, he had a clear look at the assailants. When his younger brother came to save him, he was killed by the assailants while the witness also received serious injuries. These were circumstances which would have imprinted in the memory of the witness the facial expressions of the assailants and this impression would not diminish or disappear within a period of 47 days. Similar was the case of the father and the mother of the identifying witness who had seen the assailants attacking their sons and one of their sons getting killed. In their memory also the facial expressions of the assailants will get embossed. A mere lapse of 47 days would not erase the facial expressions from their memory.

20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.

21. Lastly in Malkhansingh v. State of M.P. a three- Judge Bench of this Court of which one of us (B.P. Singh, J.) was a member, after considering various decisions of this Court observed thus: (SCC pp. 751-52, para 7)

17. In Daya Singh v. State of Haryana[9] the incident had occurred on 09.04.1988 and the accused was arrested on 28.05.1988 and was put up for test identification on 02.06.1988. However, the accused refused to take part in the TIP. Thereafter, the eye-witnesses, PWs 37 and 38, were examined in the trial after a lapse of seven and half years and eight years respectively from the date of occurrence. The ground regarding lapse of time between the occurrence and the actual identification in Court was dealt with by this Court as under:

12. In AIR paras 10 and 11, the Court has observed as under: (SCC p. 21, paras 19-21)

13. The question, therefore, is — whether the evidence of injured eyewitnesses PW 37 and PW 38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that the purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion — what in present-day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashtra v. Suresh as under: (SCC p. 478, para 22) “We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.” (Emphasis supplied by us)

18. It is, thus, clear that if the material on record sufficiently indicates that reasons for “gaining an enduring impression of the identity on the mind and memory of the witnesses” are available on record, the matter stands in a completely different perspective. This Court also stated that in such cases even non-holding of identification parade would not be fatal to the case of the prosecution. Applying the tests so laid down to the present case, in view of the fact that each of the eyewitnesses had suffered number of injuries in the transaction, it can safely be inferred that every one of them had sufficient opportunity to observe the accused to have an enduring impression of the identity of the assailants. It is not as if the witnesses had seen the assailants, in a mob and from some distance. Going by the injuries, the contact with the accused must have been from a close distance.

19. Furthermore, in the present case all the accused were arrested on 21.06.1999 except Accused No.6 who surrendered before the Magistrate on 22.06.1999 and was remanded to judicial custody. After securing permissions from the Magistrate, the police custody of Accused No.6 was obtained on 01.07.1999 and the TIP was held on 01.07.1999 itself. There was, thus, no delay on part of the investigating machinery in getting TIP held on 01.07.1999.

20. However, what is urged, is that at least three of the eyewitnesses had accepted that the accused were shown to them while the accused were in police custody. The responses of PWs 1, 2, and 3 as quoted hereinbefore do indicate that they had seen and identified the accused while they were in custody. The suggestion that the witness was able to identify the accused only because they were shown while the accused were in police custody or that their photographs had appeared in newspaper, was, however, denied by PW[1]. The response of PW[4] was with regard to identification of gold chain of four sovereign and that is why the identification was in Morappur police station whereas from the responses of PWs 1, 2 and 3 it is clear that the accused were in Singarapettai police station. The response of PW[4] does not indicate that the witness had seen the accused while they were in custody. PW[5] completely denied the suggestion that he could identify only because the accused were shown while they were in custody and that because the photographs of the accused were shown to the witnesses. He also denied that newspaper “Dhina Thanthi”, which apparently had published the photographs of the accused, was available in their village at that time. No defence evidence has been placed on record either to establish the date of publication of such photographs in any newspaper and whether the newspaper “Dhina Thanthi” was normally available in the concerned village.

21. Thus, out of five prosecution witnesses who were all injured in the transaction, the testimonies of at least two of them, namely, PWs 4 and 5 stand on a different footing. Even with respect to PWs 1, 2 and 3, though there is some room to say that the accused were shown to the witnesses while they were in custody, that part by itself may not be sufficient in the light of the discussion in Manu Sharma v. State (NCT of Delhi)15 which was to the following effect:

254. Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore, to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.

255. Mr Jethmalani has further argued on the proposition that mere dock identification is no identification in the eye of the law unless corroborated by previous TIP before the Magistrate. It has been further argued that in any case, even identification in court is not enough and that there should be something more to hold the accused liable. In support of his arguments, he placed heavy reliance on the decision of this Court in Hari Nath v. State of U.P.13 and Budhsen v. State of U.P.18 A close scrutiny of these judgments will reveal that they in fact support the case of the prosecution. These judgments make it abundantly clear that even where there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive.

256. The law as it stands today is set out in the following decisions of this Court which are reproduced as hereinunder:

Munshi Singh Gautam v. State of M.P.19: (SCC pp. 642-45, paras 16-17 & 19)

259. In Mullagiri Vajram v. State of A.P.26 it was held that though the accused was seen by the witness in custody, any infirmity in TIP will not affect the outcome of the case, since the depositions of the witnesses in court were reliable and could sustain a conviction. The photo identification and TIP are only aides in the investigation and does not form substantive evidence. The substantive evidence is the evidence in the court on oath.”

22. The facts on record thus indicate with clarity that: (a) There was no delay in holding the test identification parade and the delay, if any, was attributable to the fact that one of the accused was in judicial custody whose presence had to be secured only after appropriate permissions from the court;

(b) It is not the case of the accused that Accused No.6 was ever shown to any of the witnesses. The test identification parade of Accused No.6 has no infirmity on any count and all the witnesses consistently identified said Accused No.6;

(c) Out of five injured witnesses, two had completely denied that either the accused or their photographs were shown to the witnesses, while other three did accept the suggestion in that behalf; and

(d) All the witnesses were injured in the transaction with number of injuries. It can, therefore, safely be stated that every one of them had adequate and proper opportunity to observe the features of each of the accused.

23. As has been repeatedly laid down by this Court, what is important is the identification in Court and if such identification is otherwise found by the Court to be truthful and reliable, such substantive evidence can be relied upon by the Court. Considering the totality of circumstances on record, the presence and participation of the Accused Nos.[1] to 6, in our view, stood proved through the eyewitness account. We do not find any infirmity in the evidence of identification by PWs 1 to 5.

24. Since we have accepted and relied upon the eye-witness account, the subsidiary issues like recoveries and whether they were proved in a manner known to law, need no further elaboration.

25. Consequently, we find that the Appellants were rightly found guilty of the offences with which they were charged. Affirming their conviction and sentence, we dismiss these appeals. ………………………….J. [Uday Umesh Lalit] ………………………….J. [Indu Malhotra] New Delhi; December 10, 2019.