Delhi High Court

Rakesh Kumar vs State on 30 May, 2014

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Judgment delivered on: May 30, 2014
+       CRL.A. 513/1998
        RAKESH KUMAR                                     ..... Appellant
                    Through:           Mr. K.B. Andley, Senior Advocate
                                       with Mr. M.L. Yadav, Advocate

                          versus
        STATE                                             ..... Respondent
                          Through:     Ms. Richa Kapoor, Additional
                                       Public Prosecutor for the State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                             JUDGMENT

KAILASH GAMBHIR, J

1. By this appeal filed under section 374 of Criminal Procedure

Code, 1973 (hereinafter referred to as 'Cr.P.C.'), the appellant seeks to

challenge the impugned judgment dated 17.10.1998 and order on

sentence dated 27.10.1998 passed by the learned Additional Sessions

Judge, whereby the appellant is convicted for committing an offence

punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter

referred to as 'IPC') and was sentenced to undergo rigorous

imprisonment for life, together with payment of fine of Rs.1,000/- and in

default of payment of fine, he has been sentenced to further undergo

simple imprisonment for a period of one month.

2. The germane case of the prosecution in brief is summarized as

under:

"Deceased Nirmala was a resident of House no.B2/44 (third floor), Lajpat Nagar. She was residing at the said address with her daughter Madhavi. Her sister Poonam used to visit her as she was doing the course of Hotel Management and Nirmala used to help her with her projects. On the night of 28/29.01.1994, one Pankaj Arora and Pankaj Bhalla were invited on dinner at their residence. They left at 12 in the night and Poonam left the house at 10:30 a.m. next morning. When she returned at 3:30 p.m., she found the door towards the stairs open and found it unusual. When she entered the house, she found Nirmala lying on the kitchen floor in a pool of blood with a cut around her throat. Madhavi was lying over Nirmala with a cut on her neck. Madhavi rushed towards Poonam as soon as she saw her, and Poonam took her to the clinic of Dr. Bhatia. Meanwhile, Devender, brother of Poonam arrived there and Madhavi was taken to AIIMS at 5 p.m. Report vide D.D. no. 11-A was lodged at the police station, Lajpat Nagar regarding the commission of murder at the top floor of House no. 43, Lajpat Nagar at about 4:05 p.m. and that injured Madhavi had been taken to AIIMS. Sub Inspector Satpal and Constable Raju Ram reached the spot where they found the dead body of deceased in the kitchen in a pool of blood. They also found a razor in the kitchen and a yellow frock in the courtyard. On information through Constable Vikram Singh, they reached AIIMS at 5 p.m. and found Madhavi admitted there. Madhavi was declared unfit to make statement and thereafter they recorded the statement of Poonam on the basis of which F.I.R under Section 302/307 IPC was recorded. On 11.2.1994 the accused Rakesh surrendered in the court by making application. Accused Ram Sewak was identified by accused Rakesh near the Yamuna bridge towards Gandhi Nagar side and was arrested. After

completion of investigation, charge under Sections 302/34 IPC read with 324/34 IPC and separate charge under Section 397/348 IPC and alternate charge under Section 404 IPC were framed."

3. To prove its case, the prosecution examined as many as 29

witnesses. The statement of the appellant was recorded under Section 313

Cr.P.C. The accused was confronted with the entire incriminating

evidence adduced by the prosecution and in response to the various

questions put to him, the accused pleaded his innocence and false

implication.

4. On behalf of the Appellant - Rakesh Kumar, arguments were

addressed by Mr. K.B. Andley, Ld. Senior Advocate. The State was led

by Ms. Richa Kapoor, learned Additional Public Prosecutor.

5. Addressing arguments on behalf of the appellant Mr. K.B. Andley,

Senior Advocate argued that the prosecution utterly failed to prove its

case against the appellant but yet the appellant has been convicted by the

learned trial court for committing an offence punishable under Section

302 IPC. Learned senior counsel also submitted that the impugned

judgment and order on sentence passed by the learned trial court are

bereft of any sound reasoning and therefore, they are liable to be set

aside. Making his submissions good, learned senior counsel submitted

that the appellant is neither named in the FIR nor was arrested at the spot

so in such circumstances it was incumbent upon the prosecution to have

conducted the TIP of the appellant but since no TIP could be conducted

by the prosecution due to refusal of the child witness Madhavi to

participate in the same, therefore, in the absence of his identification, the

appellant could not have been prosecuted and then convicted for an

offence which he never committed. Learned senior counsel also

submitted that the appellant was shown to the child witness - Madhavi in

the Police Station and therefore identification of the appellant by

Madhavi during the court proceedings has no evidentiary value. Learned

senior counsel also submitted that conviction of the appellant is solely

based on the evidence of the child witness Madhavi and as per the settled

legal position, the testimony of a child witness has to be carefully

scrutinised before the same is relied upon. Learned senior counsel further

argued that PW-4 - Madhavi in her examination-in-chief failed to give

any details of the incident as to how and when the entry of the assailant

had taken place and what transpired after their alleged entry in the house

and then what led to the alleged commission of crime by the assailants. In

the absence of any such details, contention raised by the learned senior

counsel was that no reliance can be placed on the testimony of a child

witness to base the conviction of the appellant.

6. Learned senior counsel also argued that the alleged recovery of

ornaments on 19th February 1994 at the instance of the appellant, pursuant

to his disclosure statement dated 14th February 1994 cannot be relied

upon as no disclosure statement has been made by the accused. Learned

senior counsel also submitted that the alleged disclosure statement of 14 th

February 1994 was fabricated by the police after taking the signatures of

the appellant on blank papers and this fact gets support from the personal

search memo which was prepared on 14th February 1994. Learned senior

counsel also argued that at the time of TIP of the articles/ornaments

which were allegedly recovered from the appellant and the other co-

accused separately but the same were found sealed in one sealed packet

which is not possible as the same were recovered on different dates i.e.

after a gap of two days.

7. Learned senior counsel also submitted that on the same set of

evidence, learned trial court has acquitted the co-accused Ram Sewak on

the premise that the statement of Madhavi was not found wholly reliable

but so far as the appellant is concerned, he has been convicted based on

the statement of Madhavi on the same set of evidence. Counsel thus

contended that the co- accused Ram Sewak was given benefit of doubt on

the same set of facts and evidence and therefore the appellant cannot be

treated differently to fasten his guilt.

8. Learned senior counsel also submitted that the learned trial court

has already acquitted the appellant for the offence punishable under

Section 397/398/34 of IPC but, yet based on the same evidence he has

been convicted under Section 302 of IPC. Learned senior counsel also

submitted that no motive of the appellant was proved by the prosecution

and in the absence of any strong motive, there could be no reason for the

appellant to have committed the murder of the deceased.

9. Based on the above submissions, learned senior counsel for the

appellant strongly urged for setting aside the impugned judgment dated

17.10.1998 and order on sentence dated 27.10.1998 passed by the learned

Additional Sessions Judge. In support of his arguments, learned counsel

for the appellant placed reliance on the judgment of the Apex Court in:-

a) Radhey Shyam v State of Rajasthan, 2014 (3) SCALE

10. Per contra, Ms. Richa Kapoor, Ld.Additional Public Prosecutor for

the State submitted that the case of the prosecution is based on direct

evidence of an injured witness - Madhavi (PW-4) and no needle of

suspicion can be raised on her testimony who not only had witnessed the

appellant committing the said crime of committing murder of her mother

but got herself injured at the hands of Ram Sewak.

11. Learned APP also argued that the TIP is not a substantive piece of

evidence and therefore, even in the absence of TIP, there was sufficient

evidence proved on record by the prosecution to inculpate the appellant

for committing the murder of the deceased. Learned APP also submitted

that the said child witness - Madhavi could not participate to identify the

appellant in TIP because she got frightened on seeing the atmosphere of

the jail and also when she was asked to take three rounds of the queue

formed to identify the assailant. Learned APP further submitted that the

child witness suddenly started weeping bitterly and then tried to run out

of the room. Learned APP also submitted that the frightened conduct of

the child witness was taken into consideration by the Magistrate and she

was allowed to leave the place without conducting TIP Proceedings.

12. Learned APP further submitted that the said child witness had

recognised the appellant during the course of the proceedings and there

can be no reason to disbelieve the child witness who had clearly seen the

appellant committing the crime on the date of the incident. Learned APP

also argued that the appellant was not a new face to the child who earlier

also had been visiting the house of the deceased, as per the deposition of

Madhavi (PW-4).

13. We have heard learned counsel for both the parties at a

considerable length and given our thoughtful consideration to the

arguments advanced by them. We have also gone through the records of

the learned trial court.

14. The case of the prosecution is primarily based on the testimony of

an injured child witness Madhavi who entered into the witness box as

PW-4. On the date of incident this child Madhavi was the only one who

was present alongwith her mother - Nirmala. She was studying in second

standard and was of 7 years of age on the date of the crime. The statement

of Madhavi was recorded by the police under Section 161 Cr.P.C. and

later she was examined in court as PW-4. This witness fully supported

her statement recorded under Section 161 of Cr.P.C. in her court

deposition. As per her statement, she gave a clear and vivid account of

the incident which had occurred on 28/29.01.1994. The learned trial court

had referred to the following portion of the deposition as made by PW-4

and the same can be reproduced as under:-

".......................the day blood oozed out from the mother. On that day persons had visited the house. Firstly, two persons came. They had visited to correct the drain. They demanded from the mother money for cement. I do not know the amount. They want away after getting money for cement. Later three persons came with cement. Two persons started repairing the drain inside and one was standing outside in balcony. Other two were repairing the drain in the 2nd balcony. I was playing games in the room......

I saw these two who were repairing the drain were going towards the kitchen. In the kitchen my mother was preparing meal. Suddenly I heard cry of mother. I said I am coming. As soon as I moved towards kitchen one person caught me and closed my mouth. This was that man, who was standing alone in the balcony, that man is accused Ram Sewak present in the court. The witness told of her own by pointing out at him. Catching my mouth he took me in the kitchen killed me and my mother. Accused Ram Sewak had beaten me. Accused Rakesh whom the witness pointed out and one more healthy and wheatish (sawla) they killed my mother.

After some time I went inside to wear chappal, then these people were not there. I went towards stairs so that someone may save. Suddenly I felt giddy then I went to the mother and fell over her, when I fell down over the mother she was not speaking. After about 1/2 an hour maternal aunt came.

Seeing her I stand up. She took me to clinic. I was injured at the neck and the forehead. Blood was

oozing out. On the neck I was hit by Ram Sewak accused............"

15. The said child witness was cross-examined at length by the defence

but nothing could be elicited by the defence to controvert or rebut her

statement. Before recording her statement, the learned trial court put

certain questions to test the competence and intellect level of the witness

and the court was fully satisfied after finding that she could give rational

answers to the questions put to her and thereafter her deposition was

recorded by the court. PW-4 Madhavi was nine and half years of age at

the time of her court deposition.

16. Under Section 118 of the Indian Evidence Act, there is no age

prescribed to test the competence of a witness. The section gives right to

all persons to testify and it is only where the court finds that any such

person is prevented from understanding the questions put to him or from

giving rational answers to the questions because of tender years, extreme

old age, disease, whether of body or mind or any of the same kind, he or

she may not be considered competent to testify before the court. There is

no prohibition of age or any minimum age prescribed so far the

competency of a witness giving his evidence is concerned.

17. The Hon'ble Supreme Court in the case of Dattu Ramrao Sakhare

Vs. State of Maharashtra, (1997) 5 SCC 341, while dealing with the

competency of a child witness made the following observations:-

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record."

18. One of the main arguments raised by the learned counsel for the

appellant was that the testimony of the child witness has to be carefully

scrutinised and it may not be safe to base the conviction of the appellant

solely based on the evidence of the child witness. To support his

arguments learned counsel for the appellant has relied upon the recent

judgment of the Apex Court in the case of Radhey Shyam (supra). In this

case, before the Apex Court the child was of ten years of age. After

analysing the testimony of the child the court found that he had changed

his versions frequently and therefore a doubt was created as to whether he

really saw the incident. The court also observed that if as per the

deposition of this child witness if throats of two children were cut, it was

inconceivable that he would not have heard the cries of the children. It is

in this background of incoherent and conflicting version of the child

witness, the Apex Court took a view that in a such like situation it is

difficult to place reliance on the testimony of the child witness and it

would be necessary to look for corroboration to his evidence from

evidence. The court further found that the other prosecution evidence did

not corroborate the evidence of the child witness and it is therefore

difficult to rely upon the evidence of such a child witness. In this very

judgment the court placed reliance on previous judgment of the Apex

Court in the case of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat,

reported in (2004) 1 SCC 64 where also the court considered the

evidentiary value of the testimony of child witness and observed as

under:-

"The decision on the question whether the child witness has sufficient intelligence primarily rests with

the trial judge who notices her manners, her apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as her understanding of the obligations of an oath."

19. The Apex Court in the same judgment also referred to the case of

Panchhi and others vs. State of UP, reported in (1998) 7 SCC 177. The

relevant para of the same is are reproduced as under:-

"It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on."

20. We may also usefully refer to the observations of the Apex Court

in State of U.P. vs. Krishna Master, AIR 2010 SC 3071 which in it was

held as under:-

"There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the court, his

deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the court that something had gone wrong between the date of incident and recording evidence of the child witness due to incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature."

21. In Nivrutti Pandurang Kokate vs. State of Maharashtra, AIR

2008 SC 1460, the Hon'ble Supreme Court dealing with the child witness

has observed as under:-

"10. '..7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."

22. As can be culled out from the legal principles enumerated by the

Apex Court in the aforesaid judgment and various other judgments, the

testimony of the child witness has to be carefully scrutinised before the

same is believed by the court and if the court comes to the conclusion that

the testimony of the child is found reliable, trustworthy and truthful, then

the same cannot be discarded on the mere premise that the witness

happened to be a child witness. Undoubtedly, the child witnesses are

amenable to tutoring and often live in a world of make belief but this

would not mean that a child who is able to give a credible account of the

incident or any fact concerning the crime and has evidence by the court is

found to be of unimpeachable character but yet be not been taken into

consideration because of the age of the child witness. The only precaution

which the courts are required to take is to ensure that such a child witness

is free from any kind of tutoring or influence and his/her testimony also

finds adequate corroboration. Once the testimony of the child witness is

supported by other evidence on record, then the same can be accepted

without any kind of obstacle or hesitation.

23. In the facts of the present case, the child has not only seen the

crime herself, but was a victim of the crime herself, having received

injuries on her neck and forehead. The MLC of this child witness is

proved on record as Ex. PW- 18/A, in the deposition of PW-18, Dr.

Pankaj Hari. It is a settled legal position that in a case where the presence

of injured witness at the place of occurrence is natural and indisputable

then the evidence of such an injured witness should be attached highest

testimonial value. The reason for attaching more credence to the

testimony of an injured eye witness is that an injured person would not

normally falsely implicate the accused and leave out the real culprit of the

crime.

24. In State of Uttar Pradesh vs. Naresh and ors., (2011) 4 SCC 324,

the Apex Court has observed as under:-

27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless

there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)

25. In another judgment in Abdul Sayed vs. State of Madhya Pradesh,

(2010) 10 SCC 259, the Hon'ble Supreme Court has observed as under:-

"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."

26. On the point of special evidentiary status accorded to the

testimony of an injured witness, the Hon'ble Supreme Court in Jarnail

Singh v. State of Punjab, (2009) 9 SCC 719, observed as under:-

Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for

rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

22. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

27. On the point of evidentiary value of injured witness, the Hon'ble

Supreme Court in State of Madhya Pradesh v. Man Singh (2003)10 SCC

414 has observed as follows:-

"The evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report. That does not wash away the effect of evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode credibility of otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to evidence of the injured witnesses are clearly inconsequential. Though, it is fairly conceded by learned counsel for the accused that though mere

non-mention of the assailants' names in the requisition memo of injury is not sufficient to discard the prosecution version in entirety, according to him it is a doubtful circumstance and forms a vital link to determine whether prosecution version is credible. It is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render prosecution version brittle."

28. The Apex Court in State of U.P. v. Kishan Chand reported in

(2004) 7 SCC 629, has discussed the testimony of an injured witness in

the following words:-

"The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon."

29. As can be seen from the above discussion there can be no reason to

dispute the presence of PW-4 - Madhavi at the time of commission of the

crime and the fact that she herself had sustained injuries at the hands of

one of the assailants lends support to her testimony that she had

personally seen all the three assailants who were present and involved in

carrying out the murder of her mother and to cause injuries to her. PW-4

- Madhavi was subjected to lengthy cross-examination and this child of

nine and half years gave very convincing and satisfactory answers to all

the questions put to her during her cross-examination and nothing could

be elicited to disbelieve or discard her testimony. She denied the

suggestion given by the defence that she had identified the assailant

because the assailants were shown to her by the police. She categorically

denied the suggestion of the defence that on 19th February 1994, Rakesh

was brought by the police to her residence so that in court she could tell

that he was the person who had killed her mother. She also denied the

suggestion of the defence that her father had sent two persons to commit

the said crime because of the marital discord between her father and

mother. This nine and half years old girl gave correct answers to all the

material questions put to her by the defence in so far as the material

aspects of the prosecution case are concerned. We thus find no reason to

disbelieve or doubt her testimony.

30. Learned counsel for the appellant laid much stress on his argument

that the prosecution had failed to conduct Test Identification Parade of

the appellant and therefore in the absence of his identification, the

appellant cannot be convicted for such a serious offence. The Test

Identification Parade is conducted by the police to test the veracity of the

witness on the question of his/her capability to identify the person alleged

to be an assailant. The evidence of Test Identification Parade however

can never be used as substantive piece of evidence but it can be used as a

corroborative piece of evidence. In Dana Yadav vs. State of Bihar, AIR

(2002) 7 SC 295 the Apex Court took a view;

"...... in case either prayer for holding the Test Identification Parade is not granted or granted but no Test Identification Parade held, the same ipso facto cannot be a ground for throwing out the evidence of identification of an accused in Court when evidence of then witness, on the question of identity of the accused from before, is found to be credible. Then main thrust should be answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in affirmative, the fact that prayer for holding TIP was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in Court in relation to identity of the accused. But if, however, such evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in the Court."

31. The Apex court eloquently summed up the principles behind

holding Test Identification Parade in a recent case of Prakash v.

State of Karnataka 2014 (5) SCALE 83 . The relevant paragraphs

have been reproduced as under;

"........the Court quotes Professor Glanville Williams from an eminently readable and instructive article in which he says:

...if the suspect objects [to an identification parade] the police will merely have him "identified" by showing him to the witness and asking the witness whether he is the man. Since this is obviously far more dangerous to the accused than taking part in a parade, the choice of a parade is almost always accepted.

With reference to the second type of identification evidence, Professor Glanville Williams says:

Since identification in the dock is patently unsatisfactory, the police have developed the practice of holding identification parades before the trial as a means of fortifying a positive identification...The main purpose of such a parade from the point of view of the police is to provide them with fairly strong evidence of identity on which to proceed with their investigations and to base an eventual prosecution. The advantage of identification parades from the point of view of the trial is that, by giving the witness a number of persons from among whom to choose, the prosecution seems to dispose once and for all the question whether the Defendant in the dock is in fact the man seen and referred to by the witness.

A similar view was expressed by the Canadian Supreme Court in Mezzo v. The Queen [1986] 1 SCR 802.

An Identification parade is not mandatory, nor can it be claimed by the suspect as a matter of right. The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim, then an identification Parade is desirable unless the suspect has been seen by the witness or victim for some length of time.

However, if the suspect is known to the witness or victim or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media, no identification evidence is necessary. Even so, the failure of a victim or a witness to identify a suspect is not always fatal to the case of the prosecution. The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence."

32. Similarly, the case of Ashok Debbarma @ Achak Debbarma v.

State of Tripura, 2014 (3) SCALE 344 reiterated the position taken by

the Apex Court in the case of Malkhansingh and Ors. v. State of

Madhya Pradesh, AIR 2003 SC 2669, which is reproduced as under:

"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 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."

33. In another case reported as Vijayan v. State, 1993 CriLJ 2364

(Mad), the Hon'ble Supreme Court took a view that it cannot be held that

in the absence of Test Identification Parade, the evidence of the eye

witnesses identifying the accused for the first time during trial would

become inadmissible or totally useless. The credence of such evidence

would always depend on the facts and circumstances of the case.

34. In State (NCT) vs. Navjyot Sandhu, AIR 2005 SC 3820 the Apex

Court held that the failure to hold Test Identification Parade cannot be a

ground to eschew the testimony of witnesses whose evidence was

concurrently accepted by the trial and appellate court.

35. In the background of legal principles discussed as above, legal

position which emerges is that the failure to hold Test Identification

Parade by itself cannot discredit the testimony of an eye witness, where it

finds sufficient corroboration from the other credible evidence proved by

the prosecution. In the facts of the present case, the defence cannot raise

a plea that the police did not take steps to conduct the Test Identification

Parade of the appellant for the purposes of his identification by the eye

witness PW-4 Madhavi. The accused had surrendered before the court on

11.2.1994 and he made a request for conducting his Test Identification

Parade. The TIP proceedings were accordingly fixed by the learned

Magistrate (PW-27) on 16.2.1994. Since necessary arrangements were

not made by the Jail authorities to conduct the Test Identification Parade

therefore on 16th February 1994 Test Identification Parade proceedings

could not be held. The date for conducting TIP proceedings was fixed as

18th February 1994 at 2 PM. On 18th February 1994 all the necessary

arrangements were made by the jail authorities to conduct the TIP of the

accused. PW-4 Madhavi was brought to the jail and she was asked to take

three rounds of the queue of 10 under trials hurriedly to identify the

appellant, if she could. This child witness suddenly started weeping

bitterly and then abruptly tried to run away out of the room, where the

TIP proceedings were being held. The child was offered a glass of water

but the witness wanted to go outside. She again started weeping more

loudly despite the fact that the judicial officer tried to persuade her, but

she was getting out of control. The child made a request that she did not

want to join the identification proceedings and therefore, she should be

permitted to go outside. The judicial officer allowed the child to leave the

proceedings and in the proceedings, he observed that the child was too

young to join the Test Identification Parade and therefore the witness has

left the room without joining the identification proceedings. Before the

commencement of the proceedings also, the judicial officer had observed

that on 16th February 1994, the behaviour of the child was unusual and on

the day of the TIP also she seemed to be frightened but still had assured

him that she will identify the accused. He also observed that the witness

stated that she would not go alone inside Tihar Jail. It can be seen from

the above that the steps for conducting the Test Identification Parade

proceedings were taken by the police but it was because of the

atmosphere in the Jail which was surrounded by the police officials and

the under trials, coupled with the fact that she was an eye witness to the

brutal murder of her mother at the hands of the accused and has seeing

him. It was obvious that the child got terrified and started weeping to

immediately leave the room. PW-27 - Mr. D.K. Sharma, Ld. MM, who

had conducted the Test Identification Parade proceedings in his

deposition referred to such conduct indicating the harassment of the child

by deposing that 'as far as I remember that the witness being of tender

age could not adjust herself in that atmosphere'. This child witness (PW-

4) in her court deposition also stated that she got frightened in the jail

with the apprehension that the assailant may kill her. She also deposed

that she was not frightened in the court since she had grown up now and

did not have any fear from anything. In the light of these facts, we cannot

subscribe to the contention raised by counsel for the appellant that in the

absence of the TIP proceedings, he should not be held guilty for

committing the said crime.

36. Dealing with the next contention raised by the learned counsel for

the appellant that the alleged recovery of ornaments on 19 th February

1994 at the instance of the appellant pursuant to his disclosure statement

dated 14th February 1994 cannot be relied upon, firstly because there was

no disclosure statement made by the appellant on 19.2.1994, secondly the

disclosure statement dated 14.2.1994 was fabricated by the police after

taking his signatures on blank papers and thirdly, the articles/ ornaments

which were allegedly recovered from both the accused persons were

found sealed in the same parcel. The accused in this case had surrendered

before the concerned Magistrate on 11th February 1994 and his disclosure

statement was recorded on 14th February 1994 He requested for

conducting his Test Identification Parade which was ordered to be held

on 16th February 1994. Since Test Identification Parade of the accused

was to be conducted, as such, he was remanded to judicial custody. The

Test Identification Parade could not be held on 16th February 1994 and

the same was fixed for 18th February 1994, but on that day also Test

Identification Parade proceedings could not be held due to child getting

frightened of the jail atmosphere and its surroundings. Since recovery

was to be conducted at the instance of accused in pursuance to the

disclosure statement made by him, as such, on 19 th February 1994 itself

an application was moved by the Investigating Officer seeking his police

remand which was granted. Thereafter, on 20th February 1994 the accused

was taken to District Ghonda, U.P. to recover the said ornaments as per

disclosure statement made by him.

37. PW-26 - Sub-Inspector Satpal Singh left for that place alongwith

the other police officials and he also took the assistance of one local

police constable - Triveni Chobbey from the Balpur Police post. The

accused - Rakesh got recovered one nose pin, one pair of tops and one

small size chaku from a chappar/jhuggi in front of his house. The

recovery of these ornaments were duly proved by the prosecution with

the help of the testimonies of three witnesses, i.e., PW-24 - Triveni

Chobbey, PW-26 Sub-Inspector Satpal Singh and PW-17 - Jai Bhagwan.

Recovery of the said ornaments were believed by the learned trial court

and view taken by the trial court was that the said three police officials

and one amongst them was local police official of the area in which the

house of the accused was located were competent witnesses in the

absence of any hostility attributed to them and therefore, there is no

reason to disbelieve their testimonies with regard to the recovery of the

said ornaments effected by them. Learned trial court also observed that it

cannot be accepted that Delhi Police had planted the articles on the

accused and had there been such an intention, then at least they would not

have taken the exercise of recovering the articles from such a far flung

area of eastern Uttar Pradesh. We are thus not persuaded to accept the

contention raised by the learned counsel for the appellant to disbelieve

the recovery of ornaments in terms of the disclosure statement made by

the accused. The variation in the date of recovery of the articles and the

disclosure statement is natural because of the intervening TIP

proceedings and steps taken by the police to seek police remand of the

accused and then taking him to an outstation place.

38. Dealing with the next contention raised by learned counsel for the

appellant that on the same set of evidence learned trial court acquitted the

accused - Ram Sewak but has held the appellant guilty for committing

the offence. To counter this argument of the counsel for the appellant,

learned APP for the State placed reliance on the judgment of the Apex

Court in Sunder Singh and others vs. State of Punjab, AIR 1962 (2) SC

221, wherein the Apex Court took a view that the wrong acquittal of an

accused person by the learned trial court based on the same evidence

cannot come in the way of the High Court to take a different view after

considering the whole of the evidence in respect of the other accused

person. Undoubtedly, the other co-accused Ram Sewak was also

identified by PW-4 Madhavi at the time of her court deposition being one

of the assailants, who had caused injuries to her but the learned trial court

has given him the benefit of doubt feeling suspicious in the manner in

which he was arrested and also the suspected recovery of gold chain from

his pocket at the time of his arrest. The suspicions raised by the learned

trial court on the story of the prosecution so far the accused Ram Sewak

is concerned are not wholly unfounded and unpalatable, yet taking into

consideration the import of the judgment in the case of Sundar Singh

(supra), this appellant against whom the prosecution has succeeded to

establish its case with the help of cogent and clinching evidence cannot

claim any benefit of doubt.

39. We also do not find any merit in the contention raised by learned

counsel for the appellant that there was no strong motive on the part of

the appellant to have committed the said crime. The recovery of stolen

gold articles from the possession of the appellant clearly indicates his

motive to commit the said crime, although the case in hand is based on

the eye witness account of PW-4 - Madhavi and to prove motive in such

like cases is hardly of any significance.

40. Before parting with this case, we deem it necessary to give certain

directions to the Director General (Prisons), Delhi for making some

congenial and conducive environment to conduct the TIP proceedings in

a case where the witness happens to be a child below the age of 12 years.

There may be many child witnesses like the one in the facts of the present

case, who may get frightened and traumatised to the unfriendly and

unfamiliar environment of Jail where at every step there is a deployment

of police and para-military forces firstly to reach the room meant for

conducting TIP proceedings, after passing through several entry points.

No normal child can be expected to remain undeterred or un-influenced

with such kind of frightening atmosphere surrounded by gun toting police

officials and then ultimately coming across the criminals engaged for

participation in the Test Identification Parade. It is very normal for a child

to get apprehensive and frightened as has happened in the present case

where the child was of below 12 years of age and she got frightened on

seeing the atmosphere of the jail and when she was asked to take

three rounds so as to identify the accused person, she started weeping

bitterly and then tried to run out of the room. = insert the note on Human

Rights violation of a child.

41. To understand the prevalent system of conducting Test

Identification Parade proceedings, Mr. Sunil Gupta, Law Officer, Delhi

Jails was called. He has informed the court that presently the Test

Identification Parade proceedings are conducted in a room adjacent to the

room of Jail Superintendent where a semi reflective screen has been

installed so that any witness can see the persons participating in the Test

Identification Parade but not with the same clarity the accused and other

persons forming part of the Test Identification Parade can see the other

side. He also submitted that even the Magistrate conducting the TIP

proceedings also sits on the side of the witness to record the proceedings

after he completes the initial procedural formalities.

42. Mr.Gupta has also informed the court that there are three court

rooms attached with the Tihar Jail and if the Test Identification Parade

proceedings for a child witness are held in any of the court rooms, then

the child will not be required to undergo the ordeal of passing through the

various entry gates from the main entry gate of the Jail complex to reach

the Test Identification Parade room.

43. In the above circumstances and with a view to provide friendly

congenial and conducive atmosphere to the child witness, below 12 years

of age, we direct the Director General (Prisons) to undertake the

following measures:-

a) In every case where witness is a child below the age of 12 years TIP proceedings shall be held in one of the court rooms attached with the main Tihar Jail so that the child does not enter the main Jail Complex to reach the Test Identification Parade room.

b) Installation of semi reflective screen or any other screen or mechanism in a room where TIP proceedings will be conducted so that the child witness is not confronted face to face with the criminals participating in the TIP proceedings.

c) A person accused of the offence and the others who may be participating in the TIP will be explained the procedure and the manner of TIP proceedings to be held in a case of child witness.

d) No officer below the rank of Deputy Superintendant of Jail shall accompany the child witness at the time of TIP proceedings and endeavour shall also be made by the Jail Superintendent that, so far as possible only female officer is deployed wherever witness happens to be a girl child for the purposes of identifying the accused person.

e) No police official shall be seen in a uniform right from the stage when the child enters the TIP Room and till he/she leaves the premises after the completion of TIP proceedings. The child witness shall be entitled to accompany his parents/guardians or any of his close relatives so as to make the child comfortable before participating for identifying the accused in the Test Identification Parade.

f) Endeavour shall be made by Director General (Prisons)/Jail Superintendant that a lady officer who is more humane,

sensitive and compassionate is given duty to accompany the child witness.

g) The child friendly atmosphere will be created in a room where the child is brought first and the stay of the child will be made most comfortable so that the child finds the place to be attractive and conducive to his/her requirements.

h) Necessary arrangements for light refreshment to the general liking of children below the age of 12 years shall also remain in place to keep the mood of the child upbeat.

44. In the light of the above discussion, we are of the considered view

that the prosecution succeeded in fully establishing its case with the help

of cogent and clinching evidence. The star witnesses of the prosecution

case, PW-3 and PW-4 had themselves seen the victim wearing the said

gold articles, which were later identified by them at the time of their court

depositions. Their testimonies remained unimpeachable and unassailable

by the defence and the testimonies of the other police officials further

found support from the medical evidence proved on record vide Ex. PW

11/A and post mortem report proved on record as Ex. PW 12/A. The case

of the appellant has been sufficiently proved and therefore he is not

entitled to be given any benefit of doubt. Therefore the conviction of the

appellant can be based on the sole testimony of the child witness and