Mahabir v. The State of Delhi

[2008] 6 S.C.R. 361 A : ,,.. **-4-** "-1( ## MAHABIR _v_ THE STATE OF DELHI (Criminal Appeal No. 932 of 2007) APRIL 11, 2008 **B** # **(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)** ## _Evidence Act, 1963:_ s.9 - _Test identification parade_ - _Evidentiary value of_ - _Held: Refusal of accused from joining test identification parade_[c ] _would be of no consequence, when accused had been shown to witnesses before the proposed TIP_ - _That being the only piece of material which_ was _used for conviction of accused, the conviction cannot be sustained_ - _Accused acquitted of the offences charged_ - _Code of Criminal Procedure, 1973_ - D s. _162_ - _Penal Code, 1860_ - ss. _394134 and 302134 /PC._ ## _Criminal Trial_ :'- ..,. '( > _Identification of accused in Court_ - _No test identification parade held_ - _Accused known to the eye-witness from before_ **E** - _Witness stating that accused had come to their house many times prior to incident_ - _Held: There_ was _no difficulty in identifying the accused and naming him in FIR_ - _Trial Court rightly held him guilty and High Court committed no error in upholding the conviction_ - _Penal Code, 1860_ - ss. _394134 and_ **F** _302134._ **Two appellants along with two others were prosecuted for offences punishable ulss 394/34 and 302/ 34 IPC. The prosecution case as per the version of the complainant-PW4 was that on the day of occurrence at** G **about 4.15 P.M. accused 'J' who was related to her, came to her house along with his three associates including accused 'M'. After entering the house all the four accused took out their knives, and asked her about the gold kept** **H** 361 362 SUPREME COURT REPORTS [2008] 6 S.C. R. A in the house. When she refused, she was beaten. The accused removed her chain with locket and ear rings. Her maid-servant tried to intervene. Meanwhile, the accused tied a blouse around the neck of the complainant and she became unconscious for sometime. After sometime she B heard screams of her maid-servant and saw the accused fleeing away. The complainant was admitted in the hospital. The dead body of the maid servant was sent for . post mortem. Subsequently, 'M' and another accused were arrested. A VCR and ear rings belonging to the C complainant were recovered from their possession. The police applied for test identification parade of these accused, but they refused to participate in the proposed TIP. Later on, accused 'J' and the fourth accused were also arrested. The trial Court convicted the accused of the offences charged. The High Court dismissed their D appeals. Aggrieved, accused 'M' filed Crl.A.No.932 of 2007 and accused 'J' filed Crl.A.No.1475 of 2007. It was contended for the appellants that the High Court erred in holding that showing the accused 'M' to E PW -4 before the proposed test identification parade was not relevant as the accused did not take part in the TIP. It was also contended that accused 'J' was barely known to PW-4 and as he was not a regular visitor to her house, it was not possible for her to identify him. F Allowing Crl. A. No. 932 of 2007 and dismissing Crl. A. No.1475 of 2007, the Court HELD: 1.1 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, G the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of 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 H of mere identification of the accused person at the trial MAHABIR _v._ THE STATE OF DELHI 363 _; _... A_ •. ...._,,. for the first time is from its very nature inherently of a weak A character. The purpose of 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 8. accused who are strangers to them, in the form of earlier identification proceedings. [para 12] [369-G; 370-A, B, C] _Matru v. State of U.P_ 1971 (2) SCC 75; _Santokh Singh v. lzhar Hussain_ 1973 (2) SCC 406 and _Suresh Chandra Bahri v. State of Bihar_ 1995 Supp (1) SCC 80 relied on. c 1.2 Test 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. D They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. [para 12] [370-C, D] 1.3 In the instant case, from the evidence of PW4, it is clear that after the incident, two of the accused including E accused. 'M' were shown to PW4 at the time of their arrest. In fact, police brought many persons for identification of culprits and identified accused 'M' to PW4. She admitted that the· said accused were brought to the hospital. - Subsequently, she identified them in Court. ·(Para 10) F [368-E, F, G] _'{_ 1.4 So far as recovery of the VCR is concerned, which was treated as a ground for holding accused 'M' and 'J' guilty, she accepted that she was not told about recovery of VCR. She was told by the police that VCR G had been recovered after the police persons had brought accused 'M' and another. Interestingly, she also acceptec;I that accused 'M' and another were brought to the hospital where she was asked to iden.tify them. [para 10] [368-G, H; 369-A] H SUPREME COURT REPORTS [2008] 6 S.C.R. 364 A 1.5 In view of the accepted position that accused 'M' was brought to the hospital to be shown to PW4, grievance that the test identification parade was really of no consequence because he had already been shown to the witnesses has substance. That being the only piece B[of ][material which was used for conviction ][of ][accused 'M', ] who is appellant in Crl. Appeal No. 932 of 2007 conviction of appellant-accused 'M' cannot be sustained and is set as.ide. [para 21] [375-D, E] A .... 2.1. It is no doubt true that much evidentiary value c cannot be attached to the identification of the accused in Court where idEmtifying 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 D[Court. However, failure to hold a test identification parade ] would not make inadmissible the evidence of identification in Court. The weight to be attached to such icfentification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even E[without ][insisting ][on ][corroboration. ][[para 12 and 15] ] [370-D, E; 372-G, H] _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 F[1970 ][SC ][1321 ][and ] _[Rameshwar Singh ][v. ][State ][of ][Jammu and ] Kashmir_ AIR 1972 SC; _Jadunath Singh and another v. The State of Uttar Pradesh_ (1970) 3 SCC _518;Harbhajan Singh v. State of Jammu and Kashmir_ (1975) 4 SCC 480; _Ram Nath Mahto v. State_ of _Bihar_ (1996) 8 SCC 630; _State of Uttar_ G _[Pradesh ][v. ][Boota ][Singh ][and ][others.1979 ]_[(1) SCC 31; ] _Ramanbhai Naranbhai Patel and others v. State of Gujarat_ 2000 (1) SCC 358; _Malkhansingh and Others v. State of M.P_ - 2003 (5) sec 746 relied on. )' 2.2. So far as the accused 'J' is concerned, PW4 had H[categorically stated that she knew him six years prior to ] 365 MAHABIR _v._ THE STATE OF DELHI [DR. ARIJIT PASAYAT, J.] ;.: - "' ... Cf'. the incident. He had come to their house many times. A Therefore, there was no difficulty in identifying the accused and naming him in the first information report. It is of significance that in the first information report name of accused was specifically noted. The plea that name of the accused could not have been given at the first 8 instance, because the witness was unconscious is without any substance. As a matter of fact, the witness has categorically stated that after the information was lodged, she became unconscious. In this view of the matter, the conclusions of the Trial Court in holding the c accused guilty does not suffer from any infirmity. The High Court rightly dismissed his appeal. [para 21 and 22] [375-F, G; 376-A] CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 932 of 2007. D From the final Judgment and Order dated 8.3.2007 of the High Court of Delhi at New Delhi in Crl. Appeal No. 430/2002 ## WITH Criminal Appeal No. 1475 of 2007. E Braham Singh, P.K. Bajaj, Shivpati 8. Pandey and S.K. Sabharwal _tor_ the Appellant. B.B. Singh, Subhash Kaushik and D.S. Mahra for the Respondent. F _-+--_ The Judgment of the Court was delivered by _'"(_ DR. ARIJIT PASAYAT, J. 1. These two appeals are directed against the common judgment of the Delhi High Court in Criminal Appeal nos.430 of 2002 and 328 of 2005. It needs G to be noted that by the said common judgment three appeals i.e. Criminal Appeal nos 430/2002, 545/2003 and 32812005 were disposed of. 2. Appellant-Mahabir (appellant in Criminal Appeal no.932 H SUPREME COURT REPORTS . 366 (2008) 6 S.C.R. A of 2007) was appellant in Criminal Appeal no.430 of 2002 and appellant Jalvir (appellant in Criminal Appeal no.1475 of 2007 was appellant in Criminal Appeal no.328 of2005). Each of them was convicted for offence punishable under Section 394 read with Section 34, and section 302 read with section 34 of the B[Indian ][Penal ][Code, ][1860 ][(in ][short ]['IPC'}, ][and ][was ][sentenced ][to ] imprisonment for 10 years with fine and imprisonment for life with fine respectively, with default stipulation in each case for the aforesaid offences. ~ ""'-· 3. Background facts in a nutshell are as follows: c Smt. Seema Sharma gave statement to the police alleging that on 24.2.1997 at about 4.15 p.m. she was present in her house bearing No.28-B, pocket-B Sidharth Extension, New Delhi when she heard her door bell ringing and her maid servant D[Kamla ][@ ][Kharpai ][went ][to ][open ][the ][door. ][Accused ][Jalveer ][who ] is (elated to the complainant along with his three associates entered the house. Complainant was standing in the balcony where all the four reached. All the three associates of Jalveer took out knives, Jalveer also took out knife from his pocket. Two E[of the associates of accused Jalveer caught ][hold ][of the ] complainant and dragged her to her bed room where she was beaten and accused made enquiries about gold kept in her house and when she djd not give any information, they kicked her on her stomach. They removed a gold chain along with locket and jumkas with chain from her ear. When Kamla, the maid F servant of the complainant, tried to intervene, two of the associates of the accused Jalveer tied a blouse around the neck of the complainant as a result of which she became unconscious for sometime. After sometime she heard the screams of Kam la @ Kharpai, her maid servant, and when she saw, a nylon string G was tied around her neck and she was lying on the floor, Jalveer along with his associate thereafter fled away from the spot. Complainant was admitted in the hospital. Police party reached at the spot, dead body of Kamla was removed to AllMS where postmortem was conducted on her dead body. Subsequently, H[accused ][Mahabir ][and ][Mahesh ][were ][arrested ][by ][tRe ][police ][of ] ..,. ) "' 367 MAHABIR _v._ THE STATE OF DELHI (DR. ARIJIT PASAYAT, J.] A police station Haza rat Nizamuddin. A VCR, ear rings of this case belonging to complainant were recovered from their possession. They made disclosure statements regarding this case therefore, they were arrested in the present case. Police applied for holding TIP of accused Ma"1esh and Mahabir but they refused to join B the proposed TIP. The TIP of jewelery articles and VCR recovered from the accused Mahabir and Mahesh was done by the Metropolitan Magistrate. The complainant correctly identified the articles as well as the jewelery recovered from the possession of these accused persons. Subsequently, accused c Jalveer was arrested in this case and Roopa was also formally arrested in this case after production warrants were issued. Photographs of the place of incident were taken, site plan was got prepared, finger prints were lifted from the place of incident. Statement of witnesses were recorded by the police and after investigation of the case they came to the conclusion that the D accused persons committed the murder of maid servant Kamla and they also committed robbery in the house of the complainant. Accordingly, challan was filed. After complying with the provision of Section 207 of the E Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') learned Metropolitan Magistrate committed the case to the court of Sessions which in turn assigned the same to learned Additional Sessions Judge for trial in accordance with -- law. F G - 4. In order to establish its accusations the prosecution examined 19 witnesses out of which Smt. Seema Sharma (PW4) was the eye-witness to the incident. Placing reliance on her evidence and the test identification parade of the accused persons and the articles, the Trial Court convicted both and sentenced as aforesaid. H 5. Before the High Court the primary stand was that PW4 had accepted to have seen the accused Mahabir at the time of his arrest and, therefore, the test identification parade was of no consequence and rightly accused-appella'..i Mahabir had SUPREME COURT REPORTS 368 [2008] 6 S.C.R. JI refused to take part in it. So far as accused Jalvir is concerned, it was stated that the complainant did not know his father's name and address and, therefore, could not have made accusations so far as he is concerned. It was also pointed out that in the first information report name of Jalvir was menti~ned though PW4 herself accepted that she was unconscious for four days. 7. The High Court did not find any substance in such plea. It noted that though accused was shown to her, that actually did not dilute the evidentiary value and also that was not relevant as the accused refused to take part in the test identification parade. It was also noted that accused Jalvir was known to the witness and, therefore, there was no difficulty in mentioning his name in the first information report. Accordingly, the conviction and sentence as recorded by the Trial Court came to be affirmed. 8. In support of the appeals, learned counsel for the appellant submitted that the identification after the accused was shown to the witness is really of no consequence. Further, so far as accused Jalvir is concerned, he is barely known to PW4. He was not a frequent visitor to the house of the accused and, · therefore, it was not possible for her to identify the said accused. A B c D E '" 9. Learned counsel for the respondent-State supported the impugned order of the High Court which affirmed the conviction and sentence a~ recorded by the Tria'l 0 Court. 10. We shall deal with the appeal filed by the accused Mahabir. From the evidence of PW4 it is clear that after the incident accused Mahabir and Mahesh were shown to PW4 at the time of their arrest. In fact, police brought many persons for identification of culprits and identified Mahabir and Mahesh to PW4. She admitted that these two persons were brought to the hospital. Subsequently, she had identified them in Court. So far as recovery of the VCR is concerned, which was treated as a ground for holding Mahabir and Jalvir guilty, she accepted that it was not told to her about recovery of VCR. She was told by ,the police that VCR had been recovered after the police persons had brought Mahabir and Mahesh. Interestingly, she also F G H ,.,. 'i;; MAHABIR _v._ THE STATE OF DELHI [DR. ARIJIT PASAYAT, J.] 369 > _(j·'_ • 't, ~ ·~;,, • , .. accepted that Mahabir and Mahesh were brought to the hospital A where she was asked to identify them. 11. As was observed by this Court in _Matru v. State of U. P_ (1971 (2) sec 75) identification tests do not constitute substantive evidence. They are primarily meant for the purpose B of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on tlie right lines. The identification can only be used as corroborative of the statement in court. (See _Santokh Singh v. lzhar Hussain_ (1973 (2) SCC 406). The necessity for holding an identification parade can arise only when the accused are[c ] 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 D 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 E tests and significantly, therefore, there is no provision for it in the Code and the .Indian Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility F 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 G delay, it cannot be said to be fatal to the prosecution. ~ 12. 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, H / [2008] 6 S.C.R. 370 SUPREME COURT REPORTS " A 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 B weak character. The purpose of 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 C 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 0 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 E 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_ F _Chandrappa and others v. State of Andhra Pradesh_ (Al R 1960 SC 1340), _Budhsen and another v. State of UP_ (AIR 1970 SC 1321) and _Rameshwar Singh v. State of Jammu and Kashmir_ (AIR 1972 SC 102). G 13. 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 H accused over a period of time. The High Court had found that G . .. MAHABIR _v._ THE STATE OF DELHI [DR. ARIJIT PASAYAT, J.] 371 ): ' ... J( the witnesses were independent witnesses having no affinity A 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._ B _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 c sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it Wa$ 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 D 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 E 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." _-to._ ## The Court concluded: F "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 wellknown by sight it would be waste of time to put him up for[G ] identification. Of course if the prosecution fails to hold 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." H H SUPREME COURT REPORTS [2008] 6 S.C.R. 372 A 14. In _Harbhajan Singh v State of Jammu and Kashmir_ (1975) 4 sec 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 e 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 c . fired from the rifle of the appellant. Noticing these circumstances this Court held:- A "ln view of this corroborative evidence we find no substance in the argument urged on behalf of the 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 UP_ (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." D E F .... G 15. 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 perscn identified or who had no particular reason to rememberthe person concerned, if the identification is made H for the first time in Court. MAHABIR _v._ THE STATE OF DELHI 373 _k_ _-i_ ... ?'' . ~ [DR. ARIJIT PASAYAT, J.] 16. In _Ram Nath Mahto v._ State _of Bihar_ (1996) 8 SCC A 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 identified him in the test identification parade. This Court noticed the observations of the trial Judge who had recorded his remarks about the demeanor that the B 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 c Courts below had convicted the appellant, there was no reason to interfere. 17. 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 D 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 E 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 F adopti~g 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 G quite a number of times at different point of time and places which fact may do away with the necessity of a Tl parade." 18. In _State of Uttar Pradesh v. Boota Singh and others_ (1979 (1) SCC 31), this Court qbserved that the evidence of H 374 SUPREME COURT REPORTS [2008) 6 S.C.R. E A 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. B c D F G H 19. In _Ramanbhai Naranbhai Patel and others v. State of Gujarat_ (2000 (1) sec 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 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 _V C. Shukla v. State_ (Al R 1980 SC 1382) wherein also Fazal Ali, J. speaking for a threeJudge 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_ (AIF\ 2000 SC 160) and _State of H.P v. Lekh Raj_ (AIR 1999 SC 3916), had not considered the aforesaid three-Judge Bench decisions lo, - . ,.. ,I· ~ MAHABIR _v._ THE STATE OF DELHI 375 ~ -,l [DR. ARIJIT PASAYAT, J.] ::. _I_ of this Court. However, in our view, the ratio of the aforesaid A 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 B 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 ofno 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[c ] ahd their appearance and identity would well within imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the D real accused who had assaulted them." 20. These aspects were highlighted in _Malkhansingh and Others v. State of M.P_ (2003 (5) SCC 746). 21. In view of the accepted position that the accused E persons were brought to the hospital to be shown to PW4, grievance that the test identification parade was really of no consequence because they had already been shown to the witnesses has substance. That being only piece of material which was used for conviction of Mahabir, same cannot be sustained. The same is set aside. He be released forthwith unless required F in any case. So far accused Jalvir is concerned, PW4 had categorically stated that she knew him six years prior to the incident. He had come to their house many times. Therefore, there was no difficulty in identifying accused Jalvir and naming .. him in the first information report. It is of significance that in the G first information report name of Jalvir was specifically noted. The plea that Jalvir's name could not have been given at the first instance, because the witness was unconscious is without any substance. As a matter of fact, the witness has categorically stated that after the information was lodged, she became H SUPREME COURT REPORTS [2008] 6 S.C.R. 376 A unconscious. Above being the position, the conclusions of the Trial Court in holding accused Jalvir guilty does not suffer from any infirmity. 22. The High Court was right in dismissing the appeal of accusec:t-appellant Jalvir. We find no infirmity in the conclusions B of the High Court to warrant interference. Therefore, Criminal Appeal no.1475of2007 stands dismissed and as noted above, Criminal Appeal no.932 of 2007 is allowed. S.K.S. Criminal Appeal No. 932/2007 allowed Criminal Appeal No. 1475/2007 dismissed.