Supreme Court of India

Santosh Devidas Behade And Ors vs State Of Maharashtra on 6 March, 2009

Supreme Court of India
Santosh Devidas Behade And Ors vs State Of Maharashtra on 6 March, 2009
Author: . A Pasayat
Bench: Arijit Pasayat, Asok Kumar Ganguly
                                                                       REPORTABLE

                 IN THE SUPREME COURT OF INDIA

               CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO. 445              OF 2009
               (Arising out of SLP (Crl.) No.3895 of 2006)



Santosh Devidas Behade and Ors.                          ...Appellants


                         Versus



State of Maharashtra                                     ...Respondent




                             JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court, Nagpur Bench, upholding the conviction of the

appellants for offences punishable under Sections 147, 148, 302 read with
Section 149 of the Indian Penal Code, 1860 (in short the `IPC’). By the

impugned order two Criminal Appeals i.e. Criminal Appeal Nos. 314/2001

and 346/2001 were disposed of. Accused persons are Namdev (A-1),

Santosh (A-2), Mangal (A-3), Subhash (A-4) and Sudam (A-6). The High

Court by the impugned judgment dismissed the appeals.

3. Background facts in a nutshell are as follows:

The Complainant-Chandrakalabai widow of Bharat Kharat was a

resident of Village Dharkanha. At the time of incident, she was residing

with her husband Bharat Mukinda Kharat (hereinafter referred to as the

`deceased’) and two sons in the house situated in the village Dharkanha. It

is the case of the prosecution that Shivcharan (PW6), son of the

Complainant Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai,

the keep of deceased Bharat and Shakuntalabai were residing in the said

house. On the day of incident, Shakuntala was not present as she had gone

to Pusad. At that time, work of uprooting the groundnut crop was in

progress in the field of deceased Bharat and several persons from village

Londhari were working in his field. There was a pit dug in front of the

house of Bharat for construction of one room.

2
On 7th June, 1998, at about 1.00 p.m., deceased Bharat and one

Tulshiram Vadar had gone to Pusad and returned home at about 7.00 p.m.

After that, deceased Bharat was taking meal in his house and Tulshiram

went to sleep in front of the house. After some time, at about 8.00 p.m.

accused Namdev Tarpe came to the house of the complainant and told

Bharat that persons from village Yehala were coming to beat him and he

should run away from the spot, or release the dogs. When Bharat came out

of the house, five to six persons encircled Bharat in the courtyard of his

house and started beating him. They were armed with axes, sticks, crowbars

and beat Bharat with the said weapons. When Bharat was being assaulted,

he shouted for help loudly saying “Chandrakala, I am dying.” The

complainant -Chandrakala went to Tulsiram and awakened him. Tulshiram

tried to rescue Bharat from the clutches of the accused; but the accused did

not allow him to help the deceased. The complainant Chandrakala thereafter

went towards the persons of village Londhari and stayed there along with

her sons. The assailants also came there and threatened them not to disclose

the incident and asked them to leave. The persons from village Londhari

thereafter left the place. The accused persons also left the place.

3
The complainant Chandrakala along with her sons went near her

husband deceased Bharat and noticed injuries on his person, who had

already succumbed to those injuries on the spot. The complainant asked her

son Shivcharan (PW-6) the names of the assailants. Shivcharan told her that

the assailants were from village Yehala and gave their names as “Namdeo

Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Sahebrao and

one unknown person to whom he knew by face.”

The complainant along with her sons thereafter went to the house of

Police Patil of village Dharkanha and narrated the incident. The

complainant stayed there for the night and on the next day, she went to

Police Station, Pusad (Rural) and lodged a report. In the report, she

mentioned the names of five accused persons and one unknown person. She

also stated in the report that accused persons assaulted her husband because

one year before the incident, there were murders of one Atmaram and

Laxman of village Yehala and in the said crime, her husband deceased

Bharat was arrested and, therefore, the assailants for taking revenge of the

said murders, and had assaulted Bharat in the incident in question. On the

basis of the report lodged by the complainant investigation was undertaken.

4
After completion of investigation charge sheet was filed and as the accused

persons i.e. seven in number in two Criminal Appeals before High Court

pleaded innocence, trial was held.

It is to be noted that A-1 was absconding and therefore separate

charge sheet was filed against him. The trial Court placed reliance on the

evidence of Chandrakala (PW-2) and Shivcharan (PW-6) and found the

accused persons guilty.

In appeal, the primary stand of the accused persons was that PWs 2

and 6 being related to the deceased their evidence should not be acted upon

particularly when Tulshiram and the younger son of the deceased were not

examined. Additionally, it was submitted that in the Test Identification

Parade (in short the `TI Parade’) held on 3.8.1998 only two accused persons

Sudam and Mangal were identified. Further, the evidence of Shivcharan

(PW-6) only relates to accused Shamrao and, therefore, Section 149 has no

application. It was also submitted that PW-2 cannot be believed as she did

not know the names of the accused persons and the names were told to her

by PW-6. The trial Court did not analyse their evidence and held that merely

because PWs 2 and 6 were the wife and son of the deceased that did not

5
render their evidence suspect. Additionally, the TI parade was held only in

respect of two accused appellants Sudam and Mangal and not in respect of

other accused persons as they were allegedly known to the prosecution

witnesses.

Stand of State was that as others were known, there was no need for

TI Parade. The fact situation clearly shows that Section 149 IPC has

application.

4. In support of the appeal the stands taken before the High Court are re-

iterated by learned counsel for the appellants and for the State.

5. A plea which was emphasized by the appellant relates to the question

whether Section 149, IPC has any application for fastening the constructive

liability which is the sine qua non for its operation. The emphasis is on the

common object and not on common intention. Mere presence in an

unlawful assembly cannot render a person liable unless there was a common

object and he was actuated by that common object and that object is one of

those set out in Section 141. Where common object of an unlawful

assembly is not proved, the accused persons cannot be convicted with the

6
help of Section 149. The crucial question to determine is whether the

assembly consisted of five or more persons and whether the said persons

entertained one or more of the common objects, as specified in Section 141.

It cannot be laid down as a general proposition of law that unless an overt

act is proved against a person, who is alleged to be a member of unlawful

assembly, it cannot be said that he is a member of an assembly. The only

thing required is that he should have understood that the assembly was

unlawful and was likely to commit any of the acts which fall within the

purview of Section 141. The word `object’ means the purpose or design

and, in order to make it `common’, it must be shared by all. In other words,

the object should be common to the persons, who compose the assembly,

that is to say, they should all be aware of it and concur in it. A common

object may be formed by express agreement after mutual consultation, but

that is by no means necessary. It may be formed at any stage by all or a few

members of the assembly and the other members may just join and adopt it.

Once formed, it need not continue to be the same. It may be modified or

altered or abandoned at any stage. The expression `in prosecution of

common object’ as appearing in Section 149 have to be strictly construed as

equivalent to `in order to attain the common object’. It must be immediately

connected with the common object by virtue of the nature of the object.

7
There must be community of object and the object may exist only up to a

particular stage, and not thereafter. Members of an unlawful assembly may

have community of object up to certain point beyond which they may differ

in their objects and the knowledge, possessed by each member of what is

likely to be committed in prosecution of their common object may vary not

only according to the information at his command, but also according to the

extent to which he shares the community of object, and as a consequence of

this the effect of Section 149, IPC may be different on different members of

the same assembly.

6. `Common object’ is different from a `common intention’ as it does

not require a prior concert and a common meeting of minds before the

attack. It is enough if each has the same object in view and their number is

five or more and that they act as an assembly to achieve that object. The

`common object’ of an assembly is to be ascertained from the acts and

language of the members composing it, and from a consideration of all the

surrounding circumstances. It may be gathered from the course of conduct

adopted by the members of the assembly. For determination of the common

object of the unlawful assembly, the conduct of each of the members of the

unlawful assembly, before and at the time of attack and thereafter, the

8
motive for the crime, are some of the relevant considerations. What the

common object of the unlawful assembly is at a particular stage of the

incident is essentially a question of fact to be determined, keeping in view

the nature of the assembly, the arms carried by the members, and the

behaviour of the members at or near the scene of the incident. It is not

necessary under law that in all cases of unlawful assembly, with an

unlawful common object, the same must be translated into action or be

successful. Under the Explanation to Section 141, an assembly which was

not unlawful when it was assembled, may subsequently become unlawful.

It is not necessary that the intention or the purpose, which is necessary to

render an assembly an unlawful one comes into existence at the outset. The

time of forming an unlawful intent is not material. An assembly which, at

its commencement or even for some time thereafter, is lawful, may

subsequently become unlawful. In other words it can develop during the

course of incident at the spot co instanti.

7. Section 149, IPC consists of two parts. The first part of the section

means that the offence to be committed in prosecution of the common

object must be one which is committed with a view to accomplish the

common object. In order that the offence may fall within the first part, the

9
offence must be connected immediately with the common object of the

unlawful assembly of which the accused was member. Even if the offence

committed is not in direct prosecution of the common object of the

assembly, it may yet fall under Section 141, if it can be held that the offence

was such as the members knew was likely to be committed and this is what

is required in the second part of the section. The purpose for which the

members of the assembly set out or desired to achieve is the object. If the

object desired by all the members is the same, the knowledge that is the

object which is being pursued is shared by all the members and they are in

general agreement as to how it is to be achieved and that is now the

common object of the assembly. An object is entertained in the human

mind, and it being merely a mental attitude, no direct evidence can be

available and, like intention, has generally to be gathered from the act

which the person commits and the result therefrom. Though no hard and

fast rule can be laid down under the circumstances from which the common

object can be called out, it may reasonably be collected from the nature of

the assembly, arms it carries and behaviour at or before or after the scene of

incident. The word `knew’ used in the second branch of the section implies

something more than a possibility and it cannot be made to bear the sense of

`might have been known’. Positive knowledge is necessary. When an

10
offence is committed in prosecution of the common object, it would

generally be an offence which the members of the unlawful assembly knew

was likely to be committed in prosecution of the common object. That,

however, does not make the converse proposition true; there may be cases

which would come within the second part but not within the first part. The

distinction between the two parts of Section 149 cannot be ignored or

obliterated. In every case it would be an issue to be determined, whether

the offence committed falls within the first part or it was an offence such as

the members of the assembly knew to be likely to be committed in

prosecution of the common object and falls within the second part.

However, there may be cases which would be within first part, but offences

committed in prosecution of the common object would be generally, if not

always, be within the second part, namely, offences which the parties knew

to be likely committed in the prosecution of the common object. (See

Chikkarange Gowda and others v. State of Mysore: AIR 1956 SC 731.)

8. In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was

observed that it is not necessary for the prosecution to prove which of the

members of the unlawful assembly did which or what act. Reference was

11
made to Lalji v. State of U.P. (1989 (1) SCC 437) where it was observed

that:

“while overt act and active participation may indicate
common intention of the person perpetrating the crime,
the mere presence in the unlawful assembly may fasten
vicariously criminal liability under Section 149”.

9. This position has been elaborately stated by this Court in Gangadhar

Behera and Ors. v. State of Orissa (2002 (8) SCC 381 and Shivjee Singh

and Ors. v. State of Bihar (SLP (Crl.) No.1494/2004 disposed of on

30.7.2008)

10. Merely because the eye-witnesses are family members their evidence

cannot per se be discarded. When there is allegation of interestedness, the

same has to be established. Mere statement that being relatives of the

deceased they are likely to falsely implicate the accused cannot be a ground

to discard the evidence which is otherwise cogent and credible. We shall

also deal with the contention regarding interestedness of the witnesses for

furthering prosecution version. Relationship is not a factor to affect

credibility of a witness. It is more often than not that a relation would not

conceal actual culprit and make allegations against an innocent person.

12
Foundation has to be laid if plea of false implication is made. In such cases,

the court has to adopt a careful approach and analyse evidence to find out

whether it is cogent and credible.

11. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it

has been laid down as under:-

“A witness is normally to be considered independent
unless he or she springs from sources which are likely to
be tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily a close relation would
be the last to screen the real culprit and falsely implicate
an innocent person. It is true, when feelings run high
and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a
witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is
often a sure guarantee of truth. However, we are not
attempting any sweeping generalization. Each case must
be judged on its own facts. Our observations are only
made to combat what is so often put forward in cases
before us as a general rule of prudence. There is no such
general rule. Each case must be limited to and be
governed by its own facts.”

13

12. The above decision has since been followed in Guli Chand and Ors.

v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State

of Madras (AIR 1957 SC 614) was also relied upon.

13. We may also observe that the ground that the witness being a close

relative and consequently being a partisan witness, should not be relied

upon, has no substance. This theory was repelled by this Court as early as

in Dalip Singh’s case (supra) in which surprise was expressed over the

impression which prevailed in the minds of the Members of the Bar that

relatives were not independent witnesses. Speaking through Vivian Bose, J.

it was observed:

“We are unable to agree with the learned Judges
of the High Court that the testimony of the two
eyewitnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. If it
is grounded on the reason that they are closely related to
the deceased we are unable to concur. This is a fallacy
common to many criminal cases and one which another
Bench of this Court endeavoured to dispel in –
`Rameshwar v. State of Rajasthan’ (AIR 1952 SC 54 at
p.59). We find, however, that it unfortunately still
persists, if not in the judgments of the Courts, at any rate
in the arguments of counsel.”

14

14. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this

Court observed: (p. 209-210 para 14):

“But it would, we think, be unreasonable to
contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of
partisan or interested witnesses…….The mechanical
rejection of such evidence on the sole ground that it is
partisan would invariably lead to failure of justice. No
hard and fast rule can be laid down as to how much
evidence should be appreciated. Judicial approach has
to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is
partisan cannot be accepted as correct.”

15. To the same effect is the decisions in State of Punjab v. Jagir Singh

(AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76) and

Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).

16. The above position was also highlighted in Babulal Bhagwan

Khandare and Anr. v. State of Maharashtra [2005(10) SCC 404], Salim

Saheb v. State of M.P. (2007(1) SCC 699), Sonelal v. State of M.P. (SLP

(Crl.) No.3220 of 2007 disposed of on 22.7.2008) and Mohabbat and Ors. v.

State of M.P. (SLP (Crl.) No. 3251 of 2008)

15

17. As was observed by this Court in Matru v. State of U.P. (1971 (2)

SCC 75) identification tests do not constitute substantive evidence. They are

primarily meant for the purpose of helping the investigating agency with an

assurance that their progress with the investigation into the offence is

proceeding on the right lines. The identification can only be used as

corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain

(1973 (2) SCC 406). 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 upon 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 of Criminal

Procedure, 1973 (in short the `Code’) and Indian Evidence Act, 1872 (in

short `Evidence Act’). It is desirable that a test identification parade should

be conducted as soon as after the arrest of the accused. This becomes

16
necessary to eliminate the possibility of the accused being shown to the

witnesses prior to the test identification parade. This is a very common plea

of the accused and, therefore, the prosecution has to be cautious to ensure

that there is no scope for making such allegation. If, however, circumstances

are beyond control and there is some delay, it cannot be said to be fatal to

the prosecution.

9. 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, the position in law is well settled by a catena of decisions of

this Court. 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 from its very nature inherently of a weak character. The purpose of a

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

17
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 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

appropriate cases it may accept the evidence of identification even without

insisting on corroboration. (See 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) and Rameshwar Singh v. State of Jammu and Kashmir (AIR

1972 SC 102).

10. In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3

SCC 518), the submission that absence of test identification parade in all

cases is fatal, was repelled by this Court after exhaustive considerations of

the authorities on the subject. That was a case where the witnesses had seen

the accused over a period of time. The High Court had found that the

18
witnesses were independent witnesses having no affinity with deceased and

entertained no animosity towards the appellant. They had claimed to have

known the appellants for the last 6-7 years as they had been frequently

visiting the town of Bewar. This Court noticed the observations in an earlier

unreported decision of this Court in Parkash Chand Sogani v. The State of

Rajasthan (Criminal Appeal No. 92 of 1956 decided on January 15, 1957),

wherein it was observed :-

“It is also the defence case that Shiv Lal did not know
the appellant. But on a reading of the evidence of P.W.
7 it seems to us clear that Shiv Lal knew the appellant
by sight. Though he made a mistake about his name by
referring to him as Kailash Chandra, it was within the
knowledge of Shiv Lal that the appellant was a brother
of Manak Chand and he identified him as such. These
circumstances are quite enough to show that the
absence of the identification parade would not vitiate
the evidence. A person who is well-known by sight as
the brother of Manak Chand, even before the
commission of the occurrence, need not be put before
an identification parade in order to be marked out. We
do not think that there is any justification for the
contention that the absence of the identification parade
or a mistake made as to his name, would be necessarily
fatal to the prosecution case in the circumstances.”

11. The Court concluded:

19
“It seems to us that it has been clearly laid down by this
Court, in Parkash Chand Sogani v. The State of
Rajasthan (supra) (AIR Cri LJ), that the absence of test
identification in all cases is not fatal and if the accused
person is well-known by sight it would be waste of time
to put him up for identification. Of course if the
prosecution fails to hold an identification on the plea
that the witnesses already knew the accused well and it
transpires in the course of the trial that the witnesses did
not know the accused previously, the prosecution would
run the risk of losing its case.”

12. In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC

480), though a test identification parade was not held, this Court upheld the

conviction on the basis of the identification in Court corroborated by other

circumstantial evidence. In that case it was found that the appellant and one

Gurmukh Singh were absent at the time of roll call and when they were

arrested on the night of 16th December, 1971 their rifles smelt of fresh

gunpowder and that the empty cartridge case which was found at the scene

of offence bore distinctive markings showing that the bullet which killed the

deceased was fired from the rifle of the appellant. Noticing these

circumstances this Court held:-

“In view of this corroborative evidence we find no
substance in the argument urged on behalf of the

20
appellant that the Investigating Officer ought to have
held an identification parade and that the failure of
Munshi Ram to mention the names of the two accused
to the neighbours who came to the scene immediately
after the occurrence shows that his story cannot be true.
As observed by this Court in Jadunath Singh v. State of
U.P. (AIR 1971 SC 363) absence of test identification is
not necessarily fatal. The fact that Munshi Ram did not
disclose the names of the two accused to the villages
only shows that the accused were not previously known
to him and the story that the accused referred to each
other by their respective names during the course of the
incident contains an element of exaggeration. The case
does not rest on the evidence of Munshi Ram alone and
the corroborative circumstances to which we have
referred to above lend enough assurance to the
implication of the appellant.”

13. It is no doubt true that much evidentiary value cannot be attached to

the identification of the accused in Court where identifying witness is a total

stranger who had just a fleeting glimpse of the person identified or who had

no particular reason to remember the person concerned, if the identification

is made for the first time in Court.

14. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court

upheld the conviction of the appellant even when the witness while

deposing in Court did not identify the accused out of fear, though he had

21
identified him in the test identification parade. This Court noticed the

observations of the trial Judge who had recorded his remarks about the

demeanour that the witness perhaps was afraid of the accused as he was

trembling at the stare of Ram Nath -accused. This Court also relied upon the

evidence of the Magistrate, PW-7 who had conducted the test identification

parade in which the witness had identified the appellant. This Court found,

that in the circumstances if the Courts below had convicted the appellant,

there was no reason to interfere.

15. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80),

this Court held that it is well settled that substantive evidence of the witness

is his evidence in the Court but when the accused person is not previously

known to the witness concerned then identification of the accused by the

witness soon after his arrest is of great importance because it furnishes an

assurance that the investigation is proceeding on right lines in addition to

furnishing corroboration of the evidence to be given by the witness later in

Court at the trial. From this point of view it is a matter of great importance,

both for the investigating agency and for the accused and a fortiori for the

proper administration of justice that such identification is held without

avoidable and unreasonable delay after the arrest of the accused. It is in

22
adopting this course alone that justice and fair play can be assured both to

the accused as well as to the prosecution. Thereafter this Court observed:-

“But the position may be different when the accused or
a culprit who stands trial had been seen not once but for
quite a number of times at different point of time and
places which fact may do away with the necessity of a
TI parade.”

16. In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC

31), this Court observed that the evidence of identification becomes

stronger if the witness has an opportunity of seeing the accused not for a

few minutes but for some length of time, in broad daylight, when he would

be able to note the features of the accused more carefully than on seeing the

accused in a dark night for a few minutes.

17. In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000

(1) SCC 358) after considering the earlier decisions this Court observed:-

“It becomes at once clear that the aforesaid observations
were made in the light of the peculiar facts and
circumstances wherein the police is said to have given
the names of the accused to the witnesses. Under these
circumstances, identification of such a named accused

23
only in the Court when the accused was not known
earlier to the witness had to be treated as valueless. The
said decision, in turn, relied upon an earlier decision of
this Court in the case of State (Delhi Admn.) v. V. C.

Shukla (AIR 1980 SC 1382) wherein also Fazal Ali, J.

speaking for a three-Judge Bench made similar
observations in this regard. In that case the evidence of
the witness in the Court and his identifying the accused
only in the Court without previous identification parade
was found to be a valueless exercise. The observations
made therein were confined to the nature of the
evidence deposed to by the said eye-witnesses. It,
therefore, cannot be held, as tried to be submitted by
learned Counsel for the appellants, that in the absence
of a test identification parade, the evidence of an eye-
witness identifying the accused would become
inadmissible or totally useless; whether the evidence
deserves any credence or not would always depend on
the facts and circumstances of each case. It is, of course,
true as submitted by learned Counsel for the appellants
that the later decisions of this Court in the case of
Rajesh Govind Jagesha v. State of Maharashtra (AIR
2000 SC 160) and State of H.P. v. Lekh Raj (AIR 1999
SC 3916), had not considered the aforesaid three-Judge
Bench decisions of this Court. However, in our view,
the ratio of the aforesaid later decisions of this Court
cannot be said to be running counter to what is decided
by the earlier three-Judge Bench judgments on the facts
and circumstances examined by the Court while
rendering these decisions. But even assuming as
submitted by learned Counsel for the appellants that the
evidence of, these two injured witnesses i.e. Bhogilal
Ranchhodbhai and Karsanbhai Vallabhbhai identifying
the accused in the Court may be treated to be of no
assistance to the prosecution, the fact remains that these
eye-witnesses were seriously injured and they could
have easily seen the faces of the persons assaulting
them and their appearance and identity would well
within imprinted in their minds especially when they
were assaulted in broad daylight. They could not be said

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to be interested in roping in innocent persons by
shielding the real accused who had assaulted them.”

18. These aspects were recently highlighted in Malkhansingh and Others

v. State of M.P. (2003 (5) SCC 746) and Munshi Singh Gautam (dead) and

Ors. v. State of M.P. (2005 (9) SCC 631)

19. If the background facts are considered in the light of the legal

principles set out above, the inevitable conclusion is that the appeal is

without merit, deserves dismissal which we direct.

………………………………….J.

(Dr. ARIJIT PASAYAT)

………………………………….J.

(ASOK KUMAR GANGULY)
New Delhi,
March 06, 2009

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