Mahabir vs The State Of Delhi, AIR 2008 SC 2343
Before the Supreme Court of India
Decided on: 11 April 2008
Author of the judgement: A Pasayat
Bench: Dr. Arijit Pasayat, P. Sathasivam
- Matru v. State of U.P. (1971 (2) SCC 75)
- Santokh Singh v. Izhar Hussain (1973 (2) SCC 406)
- Kanta Prashad v. Delhi Administration (AIR 1958 SC 350)
- Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 1960 SC 1340)
- Budhsen and another v. State of U.P. (AIR 1970 SC 1321)
- Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC 102)
- Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3 SCC 518)
- Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480)
- Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630)
- Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80)
- State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31)
- Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000 (1) SCC 358)
Rajesh Govind Jagesha v. State of Maharashtra (AIR 2000 SC 160)
- State of H.P. v. Lekh Raj (AIR 1999 SC 3916)
- Malkhansingh and Others v. State of M.P. (2003 (5) SCC 746).
Brief facts and procedural history:
Appellant Mahabir and jalvir were convicted for offence punishable under Section 394 read with Section 34, and section 302 read with section 34 of the Indian Penal Code, 1860 (in short ‘IPC’), and was sentenced to imprisonment for 10 years with fine and imprisonment for life with fine respectively, with default stipulation in each case for the aforesaid offences.
Smt. Seema Sharma gave a statement to the police alleging that on 24.2.1997 at about 4.15 p.m. she was present in her house bearing No.28-B, pocket-B Sidharth Extension, New Delhi when she heard her doorbell ringing and her maidservant Kamla @ Kharpai went to open the door.
Accused Jalveer who is related to the complainant along with his three associates entered the house. The complainant was standing in the balcony where all the four reached. All the three associates of Jalveer took out knives, Jalveer also took out a knife from his pocket. Two of the associates of accused Jalveer caught hold of the complainant and dragged her to her bedroom where she was beaten and accused made inquiries about gold kept in her house and when she did not give any information, they kicked her on her stomach.
They removed a gold chain along with locket and jumkas with chain from her ear. When Kamla, the maidservant of the complainant, tried to intervene, two of the associates of the accused Jalveer tied a blouse around the neck of the complainant as a result of which she became unconscious for some time.
After some time she heard the screams of Kamla @ Kharpai, her maidservant, and when she saw, a nylon string was tied around her neck and she was lying on the floor, Jalveer along with his associate thereafter fled away from the spot. The complainant was admitted to the hospital. Police party reached the spot, dead body of Kamla was removed to AIIMS where the postmortem was conducted on her dead body. Subsequently, accused Mahabir and Mahesh were arrested by the police of police station Hazrat Nizamuddin.
A VCR, earrings of this case belonging to complainant were recovered from their possession. They made disclosure statements regarding this case therefore, they were arrested in the present case. Police applied for holding TIP of accused Mahesh and Mahabir but they refused to join the proposed TIP. The TIP of jewelry articles and VCR recovered from the accused Mahabir and Mahesh was done by the Metropolitan Magistrate. The complainant correctly identified the articles as well as the jewelry recovered from the possession of these accused persons. Subsequently, accused Jalveer was arrested in this case and Roopa was also formally arrested in this case after production warrants were issued.
the conclusion that the accused persons committed the murder of maidservant Kamla and they also committed robbery in the house of the complainant.
After complying with the provision of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) learned Metropolitan Magistrate committed the case to the court of Sessions which in turn assigned the same to learned Additional Sessions Judge for trial in accordance with law. the Trial Court convicted both and sentenced as aforesaid.
Before the High Court, the conviction and sentence as recorded by the Trial Court came to be affirmed.
Arguments of the appellant:
It was submitted that the identification after the accused was shown to the witness is really of no consequence. Further, so far as accused Jalvir is concerned, he is barely known to PW4. He was not a frequent visitor to the house of the accused and, therefore, it was not possible for her to identify the said accused.
Arguments of the respondent:
It supported the impugned order of the High Court which affirmed the conviction and sentence as recorded by the Trial Court.
The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based on first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade.
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 by its very nature inherently of a weak character. The purpose of 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 the investigation, and there is no provision in the Code 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. 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 view of the accepted position that the accused persons were brought to the hospital to be shown to PW4, a grievance that the test identification parade was really of no consequence because they had already been shown to the witnesses has substance. That being the only piece of material which was used for conviction of Mahabir, same cannot be sustained. The same is set aside. He is released forthwith unless required in any case. So far accused Jalvir is concerned, PW4 had categorically stated that she knew him six years prior to the incident. He had come to their house many times. Therefore, there was no difficulty in identifying accused Jalvir and naming him in the first information report. It is of significance that in the first information report name of Jalvir was specifically noted. The plea that Jalvir’s name could not have been given at the first instance because the witness was unconscious is without any substance. As a matter of fact, the witness has categorically stated that after the information was lodged, she became unconscious. Above being the position, the conclusions of the Trial Court in holding accused Jalvir guilty does not suffer from any infirmity.
The High Court was right in dismissing the appeal of accused-appellant Jalvir.