JUDGMENT
B.M. Lal, J.
1. This Judgment shall also govern the disposal of the connected Criminal Appeal No. 639 of 1985 (State of M.P. v. Kailash and Anr.).
2. This appeal is directed by the State of Madhya Pradesh against the acquittal of the accused/respondents who were charge-sheeted under Sections 364, 365 and 395, Indian Penal Code.
3. The short legal point involved in this appeal is whether in the absence of test identification parade, accused could be convicted if he is identified in the dock during trial.
4. The short facts leading to this appeal are as under : On 2-5-1979 in the night time at about 7 or 8 the accused entered into the house of P.W.I Mohansingh resident of village Munderi, Police Station Jujharnagar, District Chhatarpur and committed dacoity by taking away Rs. 750/- and a gun. The miscreants also abducted P.W.2 Saheb Singh, brother of P.W.I Mohansingh and P.W.4 Munnasingh son of Mohansingh and took them away to Chhutwai hillock. These two abductees viz. Saheb Singh and Munnasingh were with the accused persons for the whole night and the next day. On 3-5-1979 in the evening time, these abductees were let off by the accused persons when they (accused) suspected encounter with the police and made their escape good. On these facts, first-information report (Ex.P.2) was lodged by Mohansingh (P.W.I) in the Police Station Jujharnagar. Thereafter the police came into motion. During investigation most of the accused persons were arrested including the respondents Jaipalsingh and Kailash.
5. This fact is not disputed that no test identification parade, was conducted for the accused Jaipalsingh, whereas P.W.3 Vijay Kumar Topkhanawale, Naib Tahsildar had conducted the identification parade of other co-accused persons including respondent Kailash in Chhatarpur Jail, wherein these two witnesses viz. Munnasingh and Sabebsingh identified the other accused persons.
6. Accused/respondent Jaipalsingh has been acquitted of the charges by the impugned judgment only on the ground that no identification parade was conducted by the prosecution and he was identified in the dock during trial by P.W.2 Saheb Singh and P.W.4 Munna Singh. Being aggrieved the State of M. P. has filed this appeal against the acquittal of Jaipalsingh.
7. The principle, as to the object of the identification parade proceedings is well settled. Identification parade is conducted to find out whether the suspect is the real offender or not, notwithstanding the fact that identification parade is not a substantive piece of evidence by itself but such a parade is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the Court, in identifying the suspect in the dock. Where the accused persons are not known previously to the witnesses, such identification parade is a must; but where the accused persons are known to the witnesses from before the incident, then such test identification parade is not necessary.
8. If the facts of the instant case are tested with the touch stone of the aforesaid proposition, then it is to be seen that notwithstanding the fact that accused Jaipalsingh was not put to test identification parade and during the trial he was identified by P.W.2 Sahebsingh and P.W.4 Munnasingh. Now it is to be considered whether such identification of an accused in the dock, is sufficient to convict him.
9. It cannot be disputed that by living together with the accused for a considerable time i.e. about 24 hours, the image of the accused persons is imprinted in the mind of the victims, i.e. P.W.2 Sahebsingh and P.W.4 Munnasingh and therefore, they having known the accused Jaipalsingh, no test identification parade was necessary with respect to this accused Jaipal Singh.
10. No doubt, in State (Delhi Administration) v. V. C. Shukla, AIR 1980 SC 1382, it has been held that identification of a person by a witness for the first time in the Court without being tested by a prior test identification parade, is valueless. But, in the State (Delhi Administration) case (supra), the accused persons were not known to the witnesses and in that context the Apex Court of the land held that without conducting test identification parade witnesses identifying for the first time in the Court, is not enough to warrant conviction. Such is not the case here. As stated above, P.W.2 Saheb Singh and P.W.4 Munnasingh had an occasion to live closely with accused Jaipalsingh for about 24 hours in the hillock of Chhutwai and thus it can safely be inferred that the image of accused Jaipalsingh was imprinted in their mind. It is not that casually P.W.2 Sahebsingh and P.W.4 Munnasingh had seen accused Jaipalsingh and therefore, possibility of effacing his imprint of his image is possible. Therefore, Delhi Administration case (supra) has no application to the facts of the instant case.
11. In Jadunath Singh and Anr v. State of U. P., AIR 1971 SC 363, it has been held that absence of test identification parade is not fatal in all cases. In case of doubt, however, identification parade should be held. In the instant case, since the accused Jaipalsingh was known to the witnesses P.W.2 Sahebsingh and P.W.4 Munna Singh, there was no need for holding test identification parade. Similarly, in State of U. P. v. Manoharlal, AIR 1981 SC 2073, all the accused persons were known to the witnesses from before the occurrence. It was held that identification parade was not necessary.
12. In the instant case, since the accused Jaipalsingh was known to the witnesses P.W.2 Sahebsingh and P.W.4 Munnasingh from before, it was not necessary to put him for identification by the said witnesses by holding identification parade. Thus, in our opinion, the trial Court committed mistake in acquitting accused/respondent Jailpalsingh, on this ground alone.
13. For the reasons aforesaid, this appeal and Criminal Appeal No. 639/85 are allowed. The acquittal of the accused/respondent Jaipalsingh under Sections 364, 365 and 395, Indian Penal Code is set aside. Instead, he is convicted : –
(i) under Section 395, Indian Penal Code and sentenced to rigorous imprisonment for five years,
(ii) under Section 364, Indian Penal Code and sentenced to rigorous imprisonment for two years,
(iii) under Section 365, Indian Penal Code and sentenced to rigorous imprisonment for two years. All the aforesaid sentences are ordered to run concurrently. The accused shall surrender to the bail bonds to serve out the sentences.