Supreme Court Holds Dock Identification And Post-Arrest Recovery Are Insufficient To Sustain Dacoity Conviction

A Bench of Justices Pamidighantam Sri Narasimha and Manoj Misra heard an appeal against the judgments of the Sessions Court and the Chhattisgarh High Court convicting the accused for dacoity under Section 395 read with Section 397 IPC and for an offence under Section 25 of the Arms Act. The appeal challenged the reliance on a solitary dock identification and the circumstances of an alleged night-time arrest and recovery of a country-made pistol.

The Court allowed the appeal, set aside the convictions and sentences imposed by the trial court and affirmed by the High Court, and acquitted the appellant. The Bench emphasised that identification in a test identification parade (TIP) is only corroborative and observed that failure to produce TIP participants at trial eroded the evidentiary value of the parade. The Court noted that “the TIP report, which could have been used to either contradict or corroborate those witnesses, is of no evidentiary value.” The Court, in its reasoning, observed: “A test identification parade under Section 9 of the Evidence Act, 1872 is not substantive evidence in a criminal prosecution but is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is, firstly, to ensure that the investigating agency is proceeding in the right direction where the accused is unknown and, secondly, to serve as a corroborative piece of evidence when the witness identifies the accused during trial. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identity. … The identification proceedings … must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in Court of the identifying witness.” The Bench concluded that, in the circumstances, “the prosecution has failed to prove the guilt beyond reasonable doubt.”

Background The prosecution case arose from a night-time dacoity on a Raipur-bound bus on 28 September 1993, where armed men allegedly stopped the vehicle, assaulted passengers, fired a shot and looted belongings. The FIR was lodged in the early hours of 29 September 1993. Two accused were prosecuted; one was acquitted at trial, and the appellant was convicted for dacoity and for possession of a country-made pistol. The trial court relied on testimony including a dock identification by one witness (PW-9) and the evidence of arrest and recovery of a pistol by a police constable (PW-5). The High Court dismissed the criminal appeal.

On appeal to the Supreme Court the defence challenged the prosecution case on multiple grounds: the non-production of the bus driver, conductor and cleaner who had taken part in the TIP and who could be the best witnesses; the non-use of PW-9 in the TIP despite his alleged presence in the bus; absence of recovery of any looted articles from the appellant or at his instance; lack of forensic linkage between the seized pistol and any bullets or injuries; and improbabilities in the account of arrest at around 3 a.m. by a lone constable. The State relied on the TIP, the TIP-prosecuting officer’s evidence, PW-9’s dock identification and the forensic report that the pistol was in working condition.

The Court analysed evidentiary principles and precedents (including the three-Judge Bench decision in Rameshwar Singh) and held that a TIP was merely corroborative and that the non-examination of the TIP participants rendered the parade report of no use for identification. The Court found PW-9’s dock identification unreliable, observed infirmities in the arrest and seizure narrative, noted inconsistencies and delay in preparing the seizure memo and in sending articles for forensic examination, and recorded that the trial court and High Court had not adequately addressed defence evidence. On this basis the Court held that the prosecution had not sustained proof beyond reasonable doubt, allowed the appeal, set aside convictions and sentences, acquitted the appellant, and discharged his bail bond without requiring surrender.

Case Details: Case No.: CRIMINAL APPEAL NO.1931 OF 2019 Case Title: VINOD @ NASMULLA …APPELLANT VERSUS THE STATE OF CHHATTISGARH …RESPONDENT Appearances: For the Petitioner(s): [Advocates not indicated in the judgment excerpt] For the Respondent(s): [Advocates not indicated in the judgment excerpt]