Case: Ramesh Vs. State Of Karnataka

police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same. 18. Mr. Chaudhary would submit that in all cases, it is not necessary to hold test identification parade. That may be so. In a case of this nature, the test identification parade would have been meaningless as appellant were shown to PW3 in the police station. Appellant was shown to PW3 at the police station. He was identified in court also. Reliance has been placed by Mr. Chaudhary on Malkhansingh & Ors. V. State of M.P. [(2003) 5 SCC 746] , wherein this Court opined : "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 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 of Criminal Procedure, 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 of Criminal Procedure. 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." It was furthermore held : "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." 19. Judged by the aforementioned legal principles laid down therein, in our opinion, the identification of appellant PW3 in court cannot be held to be trustworthy. Reliance has also been placed by Mr. Chaudhary on a judgment of this Court in Asharfi & Ors. V. The State [AIR 1961 All. 153 ], wherein it was held that identification by only one person may not be relied upon stating : "Hence, only one identification cannot eliminate the possibility of the pointing out being purely through chance and for this reason is insufficient to establish the charge." In Heera & Anr. V. State of Rajasthan [(2007) 10 SCC 175] , a test identification had been held in presence of a Civil Judge and a Judicial Magistrate. The said decision, therefore, is not applicable. In Ravindra Laxman Mahadik v. State of Maharashtra [(1997 Criminal Law Journal 3833) in a case involving Section 395 of the Code of Criminal Procedure, it was opined: "I find merit in Mr. Moomans submission that it would not be safe to accept the identification evidence of Manda Sahani. Manda Sahani in her examination-in-chief stated that on the place of the incident, there was no light. In her cross-examination (para 6) she stated that it was dark at the place of the incident but, slight light was emanating from the building situate on the shore. The distance between the building and the place where Manda Sahani and her husband were looted has not been unfolded in the evidence. The learned trial Judge has observed that the evidence of Vinod Sahani is that the incident took place at a distance of about 100 ft. from the Gandhi statute, where the meeting was held. What he wanted to convey was that hence there must have been light at the place of incident in my view, on the face of the definite statement of Manda that it was dark as there was only slight light, and bearing in mind that the incident took place at 9.30 p.m. in the month of February, 1992, it would not be safe to conclude that there was sufficient light on the place of the incident enabling Manda Sahani to identify the appellant." The decision of the Allahabad High Court in Asharfi lal (supra) was followed therein. In Kanan & Ors. V. State of Kerala [AIR 1979 SC 1127 ], this Court held : "It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence Is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court."

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We have noticed heretobefore that no test identification parade was held. In the First Information Report, the appellant was not named. We, however, are conscious of the fact that PW2, Puttaswamy, when lodged the First Information Report, might not have received the details of incident from PW3 as he was undergoing treatment in the nursing home. According to PW3, however, he came to know the names of all the assailants during the incident as one would call the other by his name. In his statement before the police, however, admittedly he did not disclose the name of the appellant. Strangely enough, according to PW30, the Head Constable, PW23, and another constable produced accused No.5 before him at about 3.45 pm on 12.1.1999. She was arrested and interrogated. It was on that day itself, he called PW3 who identified her whereupon his further statement was recorded. The said prosecution witness, however does not state that even accused No.5, on interrogation, disclosed the name of accused No.s 1 to 4. Accused No.3 was arrested on 9.2.1999. It is not in dispute that he is a taxi driver. He was kept in custody during the night. On the next day, allegedly, he was taken to the house of one Ibrahim who is said to have purchased from him the tarpaulin in question.13. PW4, in his evidence disclosed that the tarpaulin purchased by him was blue in colour. PW2 and PW3, in their evidences, however, stated that the tarpaulin which was used in the truck was of mash green colour. Yet again when the tarpaulin was produced, its colour had faded but despite the same, it was identified as the same tarpaulin.14. We have noticed hereinbefore that according to PW3, he was called upon to identify the accused No.3 first in the police station. He, after three weeks, was again called to the police station to identify accused No.5. PW13, however, as indicated hereinbefore, in his statement stated the date of arrest of accused No.5 as 12.1.1999. The incident having taken place on 24.12.1998 and PW3 being in hospital for at least 20 days and he having been called to police station three weeks thereafter, it is beyond comprehension as to how he could be asked to identify accused No.3 first and then accused No.5, although accused No.5 was arrested on 12.1.1999 and the appellant was arrested on 9.2.1999. PW4, Ibrahim, was the owner of hotel. He knew the appellant No.3 as he used to take his meals in his hotel. In his statement, the appellant was a regular customer as he had been transporting sand in his truck regularly. He was examined on 19.11.2002. According to him, about four years prior thereto, he had asked for some loan stating that he had no money to pay for food. When, however, he expressed his inability to pay the said sum stating that he had no money, he allegedly borrowed the said amount from another person on pledging a terpauline. After one and a half months, he came with the Kudur police and asked him to give his money back. At the instance of the police, the terpauline was produced. Measurement of the terpauline was taken. A panchnama was prepared. What was the measurement of the terpauline, however, has not been disclosed. The purported measurement of the terpauline said to have been stolen had not been verified with the recovered one. None of the prosecution witnesses denied or disputed the fact that appellant was a driver. It appears rather strange that Shanthakumar PW6 would be panch witnesses for recovery of MO.12 although he had advanced the amount of Rs.500 to PW4. If the tarpauline was pledged to him, there was no reason as to why it should be recovered from PW4. The special features of the tarpauline which could be identified by PW2 and PW3 have not been stated. Tarpaulines are common goods being available in the market. It has also been accepted by Shanthakumar, PW6.15. In view of the fact that other accused are not before us, we are of the opinion that it is difficult to uphold the judgment of conviction and sentence against the appellant herein. The place where the assault took place was said to be at a distance of 400 to 500 meters from the factory. Not only the place of occurrence was agricultural fields as stated by PW3 but the crop had also been standing thereon.16. If accused No.5 was arrested first and accused No.3 one month thereafter, it does not stand to any reason as to why PW3 would be called to identify accused No.3 first which according to him took place 20 days after his discharge from the hospital and 15 days thereafter he was again summoned to identify accused No.5.17. We have noticed hereinbefore the respective dates of arrest of accused No.5 and accused No.3 respectively. It is difficult to conceive that accused No.5 would still be available so that the Investigating Officer could ask the witnesses to come to the police station. There is nothing to show that she was in custody of the police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same.