UMESH KAMAT versus STATE OF BIHAR

Citation: [2005] 1 S.C.R. 474 · Decided: 13-01-2005 · Supreme Court of India · Bench: P. VENKATARAMA REDDI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
UMESH KAMAT 
+ I 
V. 
ST A TE OF BIHAR 
JANUARY 13, 2005 
B 
[P. VENKATARAMA REDDI AND P.P. NAOLEKAR, JJ.] 
Penal Code, 1860-Section 396-Dacoity at night-By armed men with 
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covered faces-Inmate of house killed by firing-Identification of accused-
.... 
c Identification parade held after seven weeks-Appellant alone convicted based 
on the evidence of PWs /, 3 and 4-Appellant not a person known to the 
prosecution witnesses-On facts, held, identification of Appellant was doubtfal-
There being no identification of Appellant in the Court by PW3, results of 
identification parade will be of little value-Evidence of PW/ not credible-
He belied his own version in cross-examination-There is also doubt if PW4 
D could closely observe the identifiable features of Appellant in mask, that too 
in the glow of dim lantern and light emitted by torches-Hence conviction of 
Appellant set aside-Evidence Act, 1872-Section 9. 
y 
Appellant along with seven others was charged by the Additional 
Sessions Judge under Section 396 IPC for committing dacoity at night in 
E course of which one of them fired at and killed one of the inmates of a 
house. 
Four accused were acquitted by the Trial Court. On appeal by the 
remaining four accused, three were acquitted by the High Court. Appellant 
alone was convicted under Section 396 IPC and sentenced to life 
F imprisonment. High Court agreeing with the trial Court relied on the 
evidence of PWl, PW3 & PW4 and held that the identification of appellant 
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could not be doubted. Hence the appeal. 
Allowing the appeal, the Court 
HELD: 1.1. Appellant is not a person known to the prosecution 
G witnesses. PW3- the minor daughter of the deceased, did not identify him 
in the Court as he was not present. Though the trial Court and the High 
Court proceeded on the basis that the four accused including the appellant 
were identified in the Court by PW3, in fact there was no such 
identification, as is clear from her deposition. [480-8-CJ 
H 
474 
) 
UM ESH KAMAT v. STA TE OF BIHAR 
475 
' 
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1.2. The identification parades belong to the stage of investigation A 
I 
' 
and do not constitute substantive evidence. The substantive evidence is the 
evidence of identification in Court because the facts which establish the 
identity of the accused persons are relevant under Section 9 of the Evidence 
Act. In the absence of identification in the Court at the time of tendering 
evidence the results of test identification parade will be of little value. The B 
High Court committed a factual error in observing that PW3 gave a 
description of the general appearance of the appellant. Therefore the 
testimony of PW3 does not advance the prosecution case. (480-C-El 
Malkhansingh and Ors. v. State of Madhya Pradesh, (20031 5 SCC 746, 
relied on. 
2. Lt!aving apart the probabilities and the natural course of conduct, 
the version of PWI- the neighbour living in the adjacent house, is belied 
c 
by his own version in the cross-examination. It is unbelievable that he 
would go and remain at the place of occurrence even for a short-while 
when the attack and dacoity by armed persons was going on and that he D 
dared to flash the torch light on them more than once in order to get an 
idea of the miscreants. On his own showing, he was concerned about his 
own safety. Moreover, this witness stated that there was no electricity or 
lantern light at the house of the deceased. On the face of it, one need not 
say anything more to discredit this witness on the aspect of identification E 
of the appellant which was done after a lapse of about seven weeks. As 
the dacoits covered thefr faces, it was not reasonably possible for PWl to 
identify each of the criminals, some of whom including the appellant were 
unknown to him with the help of the light flashed by him intermittently, 
even if that version is accepted. The High Court described PWl as an 
'independent' and natural witness and believed him without testing the F 
, J. 
veracity of evidence in the light of various circumstances. (481-8; D-F) 
3.1. Even the evidence of PW4- the brother of the deceased does not 
inspire confidence in ultimate analysis. There is any amount of doubt on 
the point whether PW4, in the situation in which he was placed, could 
closely observ·e the identifiable features of the appellant in mask that too G 
in the glow of dim lantern and in the light emitted by the torches flashed 
at him or other inmates of the house. This doubt has to be v

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