LexMAHABIR versus THE STATE OF DELHI
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[2008] 6 S.C.R. 361 ,ll MAHABIR A v THE STATE OF DELHI (Criminal Appeal No. 932 of 2007) APRIL 11, 2008 B : ,,.. -4- (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.) Evidence Act, 1963: s.9 - Test identification parade - Evidentiary value of - Held: Refusal of accused from joining test identification parade c would be of no consequence, when accused had been shown to witnesses before the proposed TIP - That being the only piece of material which was used for conviction of accused, the conviction cannot be sustained - Accused acquitted of the offences charged - Code of Criminal Procedure, 1973 - D "-1( s. 162 - Penal Code, 1860 - ss. 394134 and 302134 /PC. Criminal Trial Identification of accused in Court - No test identification parade held - Accused known to the eye-witness from before E - Witness stating that accused had come to their house many times prior to incident - Held: There was no difficulty in identifying the accused and naming him in FIR - Trial Court rightly held him guilty and High Court committed no error in upholding the conviction - Penal Code, 1860 - ss. 394134 and F :'- ..,. 302134. Two appellants along with two others were prosecuted for offences punishable ulss 394/34 and 302/ 34 IPC. The prosecution case as per the version of the complainant-PW4 was that on the day of occurrence at G about 4.15 P.M. accused 'J' who was related to her, came '( to her house along with his three associates including accused 'M'. After entering the house all the four accused took out their knives, and asked her about the gold kept 361 H 362 SUPREME COURT REPORTS [2008] 6 S.C. R. A in the house. When she refused, she was beaten. The accused removed her chain with locket and ear rings. Her maid-servant tried to intervene. Meanwhile, the accused tied a blouse around the neck of the complainant and she became unconscious for sometime. After sometime she B heard screams of her maid-servant and saw the accused fleeing away. The complainant was admitted in the hospital. The dead body of the maid servant was sent for . post mortem. Subsequently, 'M' and another accused were arrested. A VCR and ear rings belonging to the C complainant were recovered from their possession. The police applied for test identification parade of these accused, but they refused to participate in the proposed TIP. Later on, accused 'J' and the fourth accused were also arrested. The trial Court convicted the accused of the offences charged. The High Court dismissed their D appeals. Aggrieved, accused 'M' filed Crl.A.No.932 of 2007 and accused 'J' filed Crl.A.No.1475 of 2007. It was contended for the appellants that the High Court erred in holding that showing the accused 'M' to E PW -4 before the proposed test identification parade was not relevant as the accused did not take part in the TIP. It was also contended that accused 'J' was barely known to PW-4 and as he was not a regular visitor to her house, it was not possible for her to identify him. F Allowing Crl. A. No. 932 of 2007 and dismissing Crl. A. No.1475 of 2007, the Court HELD: 1.1 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, G the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of 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 H of mere identification of the accused person at the trial MAHABIR v. THE STATE OF DELHI 363 for the first time is from its very nature inherently of a weak A 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 8. ... A accused who are strangers to them, in the form of earlier identification proceedings. [para 12] [369-G; 370-A, B, C] Matru v. State of U.P 1971 (2) SCC 75; Santokh Singh v. lzhar Hussain 1973 (2) SCC 406 and Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 relied on. c 1.2 Test identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to h
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