Adobe Scan 14-Mar-2023
Adobe Scan 14-Mar-2023
392] FINE
ro aBwent to a
fair wilh moncy in his
had it, to third posseSsIon. and that he showcd it,
fact that he persons, are rclevant or
mcntiond the,
Scction8 of The Indian Evidence Act
t Anv fact is relevant which shows "Motivc, preparation and
constitutes a motive or prcvIOus subscrucnt
or
or
in issuc or rclcvant fact." prcparaticn for any fact
lhustration- (f) Thequestion is, whether A robbcd B. Thc facts that.
ohhed, said in 4 s presencethe policc are coming to look for the man who aftcr H was
that immcdiatcly aftenvards A ran robbcd B.' and
away. are rclevant
Where on a charge under scctions 302, 307 and 392. the Sessions
up the case of murdcr from robbery.6 Judgc should not split
A person convicted under this section cannot be convicted under Scction 4117
Where thec accuscd an ex-convIct has been
read with Section 75, the sentence
charged with an offence under Scction 392.
of seven ycars' rigorous imprisonment inflicted
by no means too severe upon him is
Chargc of murder, robbery and receiving stolen property Murder and robbery allegcd
to be simultancous and part of same
transaction Finding of articles concerned in robbery in
possession of accuscd Nature of presumption to be drawn.10
3. Fine
It is not permissible to award a sentence of fine only without imprisonment for the offence
ofrobbery.1
4. Highway Robbery
i) Highway robbery is a very heinous offence.
n) Whcre an accused commits high-handed and broad day light act of robbery on a public
road and was sentenced to 7 years rigorous imprisonment, the court declincd to take a lenient
VIew in appeal.?
1) The valuc of the property should not be the criterion for determincd the punishment for
the offence of
robbery
6. AlR 1956 SC 400: also 1970 MIJ Cr. 161.
7. 18 PR 1884 & 4 DLR
(Shimla) 267.
8. AlR 1934 Oudh 122: 35 Cri. LJ S66.
Philip Bhimsent Aind 1995 Cri. Lj 1694 (Bom).
10. AlR 1939 Pat.
577: ILR 18 Pat. 45-.
11. Badri Prasad
12.
(1922) 44 All 538.
Jaivir Singh 1996 Cri. IJ 1494 (AI).
3142 LAWOFCRIMES &CRIMINOOGY Sc 192
In a case of highway obbery sessions court convictcd thc appcllant but acquittcd others
But. High Cout acquitted the appcllant. State went in appeal. In test idcntification parade
accused was correcth identificd by two witnesses and some of the lootcd articles was also
recovered High Court went wrong in acquitting as it did not discuss the cvidcncc of those two
witnesses. Supreme Court held that the commission ofthe offencc is proved beyond all rcasonable
doubts and acquittal was set aside. Conviction and scntence by Sessions Court uphcld
5. Bail
When the appellate court finds that duc to practical reasons appcals cannot be disposcd
of expcditiously the appellate court must bestow special concern in the matter of suspcnding
the sentence. In this casc as the High Court was not inclined to hear the appeal expeditiously
we are of the vicw that the sentence passcd on appellants can be suspended on some stringent
conditions. We, therefore, suspend the sentence and direct the appellants to be released to bail
on cach of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We
direct the appcllants to report to Kapadwang Police Station on all Mondays and
Thursdays
between 4.00 p.m. and 6.00 p.m. until disposal ofthe appeal pending before the High Court.4
6. Sentence
The accuscd person snatched a purse in a public place. Recovery of knife meant for
chopping vegetables cannot be said to be a deadly weapon. Conviction of accused altered to
Section 392 from Section 397 and sentcnce reduced to four ycars.1
Allegations that five accuscd persons robbed complainant of his wrist watch and currencv
notes and ran away. Conduct of eye-witnesses in chasing accused persons for some time and
then proceeding to police was not unnatural. Testimony of I.O. was held not doubtful. But t
accused were acquitted. Conviction of other remaining accused altered from Section 395 to
Section 392. A scntence of imprisonment is an essential sentence under Section 392 of the
Indian Penal Code. To this sentence a fine may be added." Where the accused was 23
years
old and no injury was caused to the complainant, sentence of six
months was held sufficient.18
Highway robbery is a very heinous offence and law abiding citizens have every right to be
protected. Thercfore when deciding a case of such nature, the value of the stolen property
should not be the criterion whereby the amount of
punishment is to be determined.9
Where the accused 22 years of age, a domestic servant
caused injuries on the of
his employer, an aged lady and he was also involved in other case under Sectionsperson 385/501
IP.C., it was held that the accused could not be released under Probation of
This sentence of 10 ycars was, however Offenders Act.
reduced to 7 ycars.20 Dacoity in a
Where the confèssional statcment of railway compartment.
the accused was truthful, the conviction
13. State of
uphcld."
Merc
lHaryana vs. Uttam, 1987 CAR
14.
Bhagwan Rama Shinde Gosai vs. State of243.
15. Bishan vs. State, 1984(6) DRJ 78: Gujarat, 1999(3) Crimes 54 (SC)
16. Om Prakash vs. State of 1983(1) Crimes 155.
17. AlR 1983
Sc 369: 1983 Rajasthan,
AIR 1998 SC 1220.
18. AlR Cr L.J 689.
1922 All. 24S:
19. AIR 23 Cr LJ 274
1950 Mad 639:
20. 1984 1950 MWN
21.
Cr LJ NOC
103 (Cr) 67.
1993(2) Crimes 533
(Dclhi).
(K»nt.)
3144 LAWOFRIMES&CRIMINOLOKGY
(Scc. 32.
The appellant was convicted umder Scctions 392 and 411
conviction under Section 392. 1 PC. was uplhcld in appcal. As to his conviction
of the
Indian Penal C . Pcnal Codc. Hs
undcr
411. 1P.C.. it was held that in cases like thc prescnt thc thcft and thc
rctcntion of thre cclion
goods from one and the same offence, and he could not be punishcd
scparatcly. te
stolen
thercfore. acquitted under Scction. 411 of thc Indian Ponal Codc.3 was.
1 was working as Manager in the Jewellery Shop in qucstion at
PW
the appellant was said to have taken MOs I to 3. and Angamaly whc.hcre
sold them for Rs. 5,103/-,
sale. the jewellery was Bcforc act
ctual
weighed and the slip, Ex. P. 7, scizcd from the diary of the
was said tolhave becn
prepared and given to him at that time. The workcr in the appellan
who prepared the slip after Shop, Pw 4,
PW 12 is the gold
weighing the MOs I to 3, has also ident1fied the
jewcls and the sl
platter having his Shop adjacent to thc Jewellery Shop in slip
qucstion. The
appellant could not cxplain how he came into
worn by the deccascd when possession of the ornaments bclonging to and
she left the Convent on the
The incriminating circumstanccs evening of the fatcful day with him
enumerated
guilt of the appcllant and nothing has
above unmistakably and inevitably lead to the
becn highlightcd or
proved or the circumstances established to be in brought on record to make the facts
at any rate of the any manner un consonance with the
appcllant. Courts have, from the falsity of the defence innocence
answers gvento Court, when questioning, found the plca and false
answers for completing the chain of missing links to be
supplicd by such
person concerned with the incriminating circumstances necessary to connect
SCC 47138 The apex crime committed (See State of Maharashtra vs. Suresh, the
of the High Court rightly held 2000(1)
court held that the Division Bench
appellant guilty of offences under Scction 302 for that the
robbing her of her jewellery worn by her committing the murder of Gracy and for
Mos1 to 3, under Section 392.39
7. Procedure
8. Charge
Magistrate.
I (name and office of the Magistrate etc.)
asfollows hereby charge you (name of the
accused)
That about the..
on or
of. day of..
(specify
...
the
property), which
at..
..you committed robbery
*****
Section 393
SYNOPSS
2. Comments
execution
some overt act which is a commencement of the
The attempt should be proved by the conduct and the overt
The intention to rob must be explict from
of the purpose of robbery. be concluded the offender had the requisite
intention
act of the offender from which it
could
of committing robbery.
while Section 398 prescrnbes
for attempt to robbery
Section 393 prescribes punishment with deadly wcapon.
commit robbery where the offender is armcd
punishment for an attempt
to of the offence
390 be read, where the ingredients
under Section to a
he detinition of robbcry given out. It is applicable only
commit robbery has already
been set has
of robbery and attempt to which the robbery
application to a case in
commit robbery and
has no
to commit
Case of an attempt to
only in cases of an attempt
It can regulate the
punishment
actually been committed. has already accomplished his purpose
the offender
from a case in which to the stagc of attempt
and not
robbery as distinguishcd section applies
committed.' This
and robbery has actually becn
to that of preparation.
Cri. LJ 1210 (Oudh).
Chandra Nath. AIR 1930
Oudh 353: (1930) 31
2. 49 Cut LT 222.
LAWOFCRIMES&CRIMINOL.OGY
Scction393
Section 398
Simple attenpt to robbeiy Aucmpt to robbery whcn
The punishment prescribed is pto 7 ycars and
dcadly wcapon. offcndcr is
a finc.
The punishment armcd wih ar
7 years
prescribed is 7 veer
punishment canno be Less than
as the words are
than 7 years.
awarded
punishmen shall n any
The judge has no not
to award
punishment less than 7
The carrying a
deadly weapon would
option/discre
years. cretion
attract the mischief of this be e
The expression
"attcmpt" has not been defined scction. ugh to
The commission anywhere.3
of this offence comprises of three
i) Forming an intention to commit stages
the crimc,
(1) making preparation for the
commission;
(1) attempting to commit the crime. and
Attempt is the
commencement of action
the crime.4 which, if not
interrupted, Would have ended
Mere intention without ded in :
Preparation consists n devising or arranging the mcans or mcasurcs ncccssary tor thc
commission of the offcnce and that the attempt is the dircct movemcnt tward thc Commission
4. Attempt
numbered
An attempt to commit robbery was made by
the appellant and his companions
reason of the hue and cry
raised by M &
five or more and in fact no robbery was committed by
G. The dacoits took to their hcels without collecting any
body. The offence of dacoity was,
There was an
completed, the moment they took to their heels without any booty.
therefore, of dacoity and would be punishable
attempt to commit robbery and the accused would the guilty
under S. 395, IPC.12
completed are
Attempt to commit an offence begin when the preparations
can be said to
and
intention of committing the offence
commences to do something with the
and the culprit for
is a step toward the commission of
the offence. Appellant applied to the University
which himself to be a graduate while he was
not."3
to in M.A. Exam., represcnting
appear
permission
a person commits the
offence of "attempt to
Attempt begins where preparation cnds, and (i) he,
he intends to commit that particular offence;
commit a particular offënce" when (1)
does an act towards its
made preparations and with the intention to commit the offence
having of that offence
such an act necd not be penultimatë
act towards the commission
commission,
but must be an act during the course of committing
that offence.4
or dacoity,
IPC attracted if at the time of attempting to commit robbery
Section 398, gets less than
which will attract an imprisonment of not
the offender is armed with a deadly weapon
thc sense that no
dacoity has been committed as such in
seven years. When no robbery or to
of the complainants and nothing said to be belong1ng
was from
removed the house in
property there was any attempt
was recovered, it would be difficult to hold that
the complainants
State
vs. Hurley,
122 Mich 292: 81 NW 114,
1 Cal. 2d 687: 37 P 2d 67; People vs. Youngs,
9. People vs. Anderson.
79 Vt 28: 64 A 78. 1041: Cert den 342
US 920: 96 Led 688: 72
SCt
2NY) 185 F 2d 629: 28 ALR 2d
10. United States vs. Coplon, (CA 55.
177 Mass 267: 59 NE NY 274: 70 NE 786: 98 ALR
362; Commonwealth vs. Peaslee, People vs. Mills, 178
527: 42 P 2nd 308: 98 ALR 913;
I. People vs. Miller, 2 Cal 2nd
687: 119 SE 650: 22 ALR 219.
918; State vs. Adder, 183 NC SC 320: 1957 Cr. LJ 416.
vs. State of
Uttar Pradesh, AIR 1957 254.
12. Shayam Bihari
AIR 1961 SC 1698: (1961)
2 Cr. LJ 822: (1962) 2 SCR
13. Abhay Anand Mishra vs. of Bihar,
State
SCC (Cr.) S13:(1980) SCC 57:
3 1980 Cr. LJ 793:
Mohd. Yakub, AIR 1980 SC 1111: 1980
14. Stateof Maharashtra vs.
126.
1980 Cr. LR (SC) 251: 1980 UJ (SC) 465: 1980 Cr. App. R (SC)
LAWOFRIMES&CRIMINOLOXGY
of
robbCry the chargc.
commussion
docs not
prove con.
egard to
the
but that offcncc
chargcd, a
tion of thc
ransacked.
of, thc
as if o r is a
part
scene
included in, offcnce.
is
an attempt or major h
Where principal offencc
ofthe Cannot
substantivc
acquittal the
attempt
is an
is legally
incapable ofcommitting
Hhere the accuscd
it.""
be
conmicted of attempting
anteccdents againct L:
5, Sentence
Thcre are no
criminal im
about 18 ycars of agc. circumstanccs, the Sento
convict. In these
Appcllant is agcd
that he was a previous undergone 18
nothing to show imprisonment already
There is
bc confincd to the period of
should
of the appellant
for three months and 17 davs tha
fact that he has alrcady been in jail
Coupled with the sentence of the respondent undcr Section 397
be amply satisfied if the
ends of justice would 17 days R.1. the period alrcady undergone ne
enhanced from a period of3 months and
34, IPC is one ycar in its detault is imposcd
in that an additional fine of Rs. 8,000/- and
by him a manner
19
on the respondent.
becn made specific
While attempts to commit certain specified offences have themselves
punishable under the
offences (e.g. 307, 308, 393, 398, IPC) an attempt to commit an offence
Penal Code, generally, all otherattempt to commit offences would be dealt with by the provisions
supply of the clectricity. Apart froma suggestion, commission of the dacoity there was no
which it can be held that there nothing on the record. on the basis of
is
although the village had
the house, but
just at the time of commission of electricthe
connections and electric light was in
claim of the witnesses dacoity there was a power failurc. Ine
regarding identification
rejected merely on the ground that this fact of the culprits
in the electric light cannot be
or in the was not mentioned in
statcments made
the houses and on during investigation. It appears that as the first information report
roads, the informant as well as the village had clectricity n
that they werc not the witnesses
requircd to disclose the means of procecded on the assumpuo
not at all a relevant fact identification by them becausc that
.16 Chinnadurai State
nccessary to be mentioned in the Was
first information or m ir
vs.
17.
Cates vs. of Tamil Nadu, AIR 1996 SC
Commonwealth. 11 1 546: 1995 SCC
report
Foster vs. Va
837: 69 SE 520 (Cr.) 1147: (1995)
18. Commonwealth, 96 Va 306:
Sanjay vs. Statc of 31 SE
(21 Am Juris 2nd
Ed 185).
3 (Supp) SCC oo
19. State 503.
of
MaharaslhtraMaharashtra.
vs.
1996 Cri. LJ
2172 (Bom).
Mahipal Singh. 1996 Cri. LJ 2485 (Bom).
Scc. 393] 1DENTIFICATION
-
statcmcnts betore the Poliec. ln villages where there is a no clectricity and a clam 19 madc
regarding identification ofthe culprits during commission of dacoity. witncsses arc cxpcctord t
disclose the source of light by which they have idcntificd the culprits during thc nught
The appcllants contended that there was failurc of clectric supply and the clcctric light
was intermittently going off and the shops were also closcd by 8.00 p.m. and, thercforc, it was
not possible for witnesses to sce the accuscd persons and the incidcnt. But cvidcncc is quite
contrary to the said submission. The cvidcnc gocs to show that therc was no failure ofclectricity
elcctric failure the shop-kccpers would
frequent, not
at the place of occurrence. If the was so
take the risk and thcy would kccp the pctromax rcady for the occasion.
of light at the scene. The
There is no whisper in Ex. P-1 that there was some source
omission cannot be ignorcd as insignificant. Whether the street lights and the petrol bunk/light
incidence happencd was
had been burning at the time of the occurrence and the spot where the
so located as to reccive the light emanating from these sources are required to be made out by
the prosecution. When this significant fact is left out in the carliest record, the improvement in
the course of the investigation and trial could be of no avail.
which at the distance of
It is not possible to idcntify in the light of a kerosene lantern
was
7. Identification
voice and writing exemplars,
The most common identification procedures are fingerprinting,
and under special circumstances,
photograph identification, Test identification parade (line-ups)
"self incrimination", though this point
breathalizer and polygraph tests. None of theseamount to
self incrimination applies to evidence of a
is often raised. The Constitutional guarantec against
for identification purposes.
testimonial nature and not to the exhibition of the person
the same is a hearsay evidence
Identification cvidence is admissible in evidence although
336) has stated as under:-
Phipson on evidence (13th Eddition, para 16-09, page
consistent statements may be proved
should
"The exceptional cases in which previouS rule
as well as to any other
be regarded as exceptions to the rule against hearsay
admission.25 It is clear that an identification
which would otherwise prevent their
identification by him, for example
at
witness is permitted to testify as to a previous
25
an identification parade.
is an exception to the
Where or not the evidence in question as to identification
Cr. LJ 922:
527: (1994)) 1 SCC 413: 1994
State of Rajasthan, AlR 1994 SC 739: 1994 SCC (Cr.)
20. Brij Mohan vs. 203: (1994) 1 Crimes 288.
87: JT (1993) Supp. SC
1994 Cr. LR (SC) 775: (1994) 1 UJ (SC) Pradesh, AIR 1997 SC 353:
1996 Cr. LJ 4432.
21. Tallurri Venkaiah Naidu vs. Public Prosecutor, Iligh Courtof Andhra 1468: 1991 SCC (Cr.) 586: (1991)3 SCC
vs. Stale Andhra
of Pradesh, AIR 1991 SC
22. Ballavaram Pedda NarsiReddy
434: 1991 Cr. LJ 1833.
SCC (Cr.) 743: (1979) 4 SCC
74: 1979 Cr. LJ 908:
AIR 1979 SC 1042: 1979
23. Babboo vs. Statc of Madhya Pradesh,
1979 Cr. App. R (SC) 134.
1979 Cr. LR (SC) 15:
24. 1979 Raj. Cr. C. 79.
33-49.
25. The exceptions are considered, post
26. R. vs. Christic (1914) A.C. 545 (H.I.).
ne
evidence as to udentification rests upon sworn testimony in ihe witness box 1 Iio
/so 701 ery different from the position where a witness says
s : " can rememher
noting about the incident now, but I did when I made my nole tw0 days later and
hai is dccurate io the best of my belief" The contents of the note as recited
by the
Witness is perfectly good evidence °
of its contents, and indeed this situation
consiantly arises with police officers.
In R. Osbourne and Virtue29 the Court of
vs.
appeal went further.
judgement delivered by Lawion L.J. was reserved, it is not easy lo followAlthough
the
as it leaves
ihe 1opic with which we are
concerned to deal with other matters and returns to it
later Moreover
although the whole point so far as we are concerned was that the
lnspector in charge of an identification parade had been allowed to
as to whom the wo
witnesses had identified, the
give evidence
Inspector's evidence was. It would appear however,judgement omits to say what the
he proved that two by process of deduction, that
a
witnesses had identified Osborne.
trial said that she could One of the witnesses at the
not. remember
did not identify anyone in the dock. having identified anyone, and (it would seem)
man out (at one
The other witness remembered
picking some
moment she said irtue but
in the dock. retracted), but did not think that he was
pertomance in smilar state of mind of the witnesscs was found to bc suspicious and wa not
tound fit for being basis of convictio
Then it may be noted that only two cyc witncsses werc cxamincd in thc court they were
cxanination Arun Kurmar, PW 2
Krishna Devi, PW 1 and Anun Kumar, PW 2. In his cross
Dhatas during dacoty. Stili he
admitted that all the six dacoits identificd by him were wcaring
added that he could recognize them because their cycs, nosc and mouth werc visiblc It is
evident from his admission that the entire faces of the dacoits whom he could rccoynize during
convictcd on the basis of identification
dacoity were not exposcd. It is not said that the appcllants
had special features in their eyes, nose or mouth. It has to be, thercfore, said that the two eye
witnesses examined in the casc could not have reasonable opportunity to sec and recognize thec
unknown dacoits.31
policeman treated as a mere conduit pipe, so that the sketch was not his, but the
was
witness's. Il should be observed, however that this solution is not in al respects
convincing. Il is no doubt true that a human intermediary can act purely passively
in transmitling information given by a witness. Indeed, evidence given through an
interpreter must be Gdmissible on this basis. The difficulty with R. vs. Smith (Perc
is that had the witness dictated a list of features rather than drawn a
sketch.
ante)
the list would have been inadmissble as being no more than a previous consistent
statement (see post 33-48). That would indeed be the case, even if the witness had
written out the list. He would be able to refresh his memory from it;
but the
himself
list itself would be inadmissible.
appellants
custody of the appellants 25.4.86 which by Karnataka Police W-33 he got
extended for some more 28.2 86 and
on on
was
the custody of the sccond
appellant 2.5.86. Though both the on days. Then he. got the
custody
thought of taking their fingerappellants
about 2.5.86, PW-33
on or
lants vere
were in
for in the
purpose which the two
that nothing has been appcllants were taken to the police prnts only on 11.5 Rpolice
recovered from any of the custody not known t .The
is
police custody. appellants after they have becn seems
taken tosthe
The
arrest leaves an
non-explanation
for taking these two
appellants into police custody
impression that all are (is) not well with the long after their
10. Identification-FIR-Description prosecution35
eIr
of hearing of the case on that date. The prosccution has, howcvcr, not givcn any l1nk cvidencc
to prove that Mahendra Singh alias Bircndra Singh was brought Baparda from Jail on that datc
and was kept Baparda till he was again lodgcd in jail the samc day and hc was net shown to any
prosccution witnesses that day. The casc of Mahcndra Singh has bccn that hc had becn
on
shown to the witnesscs. In vicw of this lapse on that part of the prosccution, we have no option
but to give the benefit of doubt to him.
in had
The appellant Mani Shanker is the resident of village in which the dacoity qucstion
been committed and was known to the witnesses. Hc is nominated in the first information
Bali Rai, Hausala Prasad, Samarjit
report. All the four witnesses ofthe occurrence, namely, Raj
cloth
Upadhyaya and Shiv Nath have deposed that onc of the dacoits had covercd his face by
and that in the course of dacoity, the cloth slipped from his face and they recogniscd him and
found him to be Mani Shanker. Witnesses have consistently deposed that Mani Shanker was
he had
amongst the dacoits and was recogniscd at the time of dacoity as his cloth by which
covered his facc got unticd. There is no enmity between Mani Shanker and prosecution witnesses
Nos. 2 to 4, namely, Hausala Prasad, Samarjit Upadhyaya and Shiv Nath.3
Merely because thoere is abscnce of evidence that when the suspccts were produced
conclusion that
precaution was taken to conccal their identity, it would not lead to an automatic
witnesses had the opportunity
they were produced in an exposcd manner and that the identifying
in Court or
to see them earlier. As a fact, it is essential that the suspects must be produccd
taken to the identification parade concealing their identity but in the abscnce
of evidence that
cross-examination
such steps had not bcen takcn, and if such defence is taken, the necessary
to that effect should be made independently, but unles it is so done, the evidence of the identifying
with other person and also against the identifying witnesscs being providcd
hv th
authonty with other unfair aid or ass1stancc so as to facilitate the idcntification
coneened.
The two factors
investthe iaccuso
gariny
of basic importance in thc cvaluation of identification-
persons required to idcntify an accused should have had no
commission of the crime and no
opportunity of
mistakes made
rsthy the
sccing himthe
are by them. er the.
The identification
of value should be held without much delay in
to be
opportunity to identify tcnds to minimise the chances the as me
of ch as carly
memory the idcntifvinarly
of
fading away, by reason of long lapse of time. It is not
the features of the accused possible for any human being to ng witne
after a long lapse of time. rem
Where the witnesses in their
the accused whom statements or in oral
they alleged to have evidence neither give any descrintio
witness give any
identification identified the commission of
in
of crime, nor ption o
thin or of a fair or marks, viz. stature of the accused or nor do
do ththe
black complexion, it will whether they
single identification as in such case be unsafe to convict were fat or
the reasonable any accused on the
be excluded. of possibility basis afa
mistake in
When no
identification cannotot
for doubt as to explanations
is given for delay in holding test
whether delay in holding identification parade, there is
witnesses to see the accused identification parade was in room
features,39
in the
police lock up or in the Jail order to enable the identifying
premises and make a note of his
When the jail van was not
was arrested available, they werc made to walk
16.5.78 and Gobinda
on
about a month. on 22.5.78. to the Court
Parade was held on foot. Bikal
The on
at Having regard to the fact that the TI.
Khandpara to the Court at accused were made to 12.6.78 after
hajat those dates where Nayagarh back on different
on and walk from the sub-jail
there was dates and
proceedings do not opportunity
for
inspire confidence.40
were kept in the
the witnu.ses to Court
When there
see them, the identification
was
non-conducting of identification
cogent evidence available
crime. against accused parade. Accused being in
Non-conducting of identification regarding
played part
by him
hospital and
identification must be held at parade against accused found not to becommission or
The in
memory. Thus who declincd earliest possible
fatal.
cannot take appcllant Test opportunity to avoid fading
plea of dock ldentification away
Where no
identification as not Parade
being proper.2 without any reasonabiy
admitted on stolen property vas
bchalf of the prosecution found
report and it further
in the
that their namespossession of the accuscd and T as also
injail by any appcarcd that no
idcntification were not entercd
red inin the first
a
information
Held, that theMagistrate and that they were proceedings in respcct
pcct of
of them
first
conviction convicted them were conducto
undcr Scction 395, IPC. solely on the lainants.
should be set testimony
39. Habal or
40. Shaikh vs..
Govinda Pradhan State, 1991 Cr. LJ aside two
4Komla vs.
State, 1258. 43 Identiticauo at
to
there becn any recovery of the stolen
There has been no proper identification. Nor has
reasonable doubt. His appcal can be
articles from him. His guilt has not been proved beyond
no recovery. It is thercfore
not safe to base
decided on two short grounds-no identification and the first time
women who identified him for
the conviction on the bare testimony of these two evidence is
him at the test identification parade. Such
in court. and who failed to identify
has been said that mistaken
where therc has bcen no previous identification. It
suspect
of actual or possible wrong convictions.
identification is by far the greatest cause
in the test identification parade without any good
If the accused refuses to participate
But bcfore this can be done refusal has
to
adverse infercnce can be drawn against him.
reason
the evidence
vs. State of 162 Cr. PC. The subscqucntly
Bombay 1955 S.C. 105, where it view was approved in Ramby actu
which he would sought be given by identifier
to was held,
"the only Kisha
be entitled to himself in
regard his mental act ofexception ben
at the
trial" give by way of
In 1956 S.C.
526 Santa corroboration of his identification
(if they have to
hold the Singh vs. State of identification of the accused
police to be conducted parade) is suggested. The paradePunjab, a
way out for
guidance
arranged should beof police
accused. The by panch witnesses who after being
and where he statement of such witness to
would call
witnesses left by
had seen him panch witness as and ask them to pick
witnesses as such would be (at the spot) would be admissible.to whom he had come to pick up
outside the The up
Ifafter
to be made arranging the purview of S. 162 Cr. P.C. statements of identifying
parade, the Police leave the
under the exclusive
of the field, so to say, and allow the
identifying witness shoulddirection and
be outsidc thesupervision of the Panch witness, theidentificaton
14. Conduct purview of S. 162, Cr. statemenis
of Parade
The
and
Precautions P.Code.
panchas who
Supreme Court's verdictarein sclected for holding the
impartial. Santa Singh vs. parade by the Police in
1n the They should be told the State Supra should be diligcnt, accoraanc with
necessary procedure will prccautions they are to takc respeeoo
and
Should be
conducted in such a make the
identification during paradc
adc as a minor
mino omission
Suspicion in the mind way as not to proceedings doubtful. The proc gs
leave any room
of court.
vigilance at the time of test The panchas should, therefore,or loopholc to crealc u and
The
parade identification parade.4 exercisc the utmost
should, therefore, be
) Always through a arranged
Santa statements of
judicial
Singh State of witnesses of magistrate
63.
64.
Samundar
vs. if he isS available as he has powers
u/s. 164 Cr.
record
Singh vs. State,Punjab,AIR PC.
1953 Cri. LJ1956 SC 526: 1956
1452; 1911D
Cr. LJ 930
PRECAUTIONS 3159
Soc.393]
thcn any magistratc can hold paradc
(11) In case Judicial magistrate is not available,
climinatcs any possiblc criticism
The position and the prestige a magistratc holds
of bias or prejudicc.
whcrc a magistratc having only third
In case 1970 Cr. LJ 1422, Supreme Court held that
witnesscs in support of the identification of
statements of idcntifying
class powers recordcd particular accused
accuscd and also recorded what
the witnesscs had said aftcr idcntifying
as being in
contravention of S. 164 but this would not
this statement, would be inadmissible accused
witnesscs correctly identificd the
the rocord madc by him to the cffect that the
apply to
conduct them so long as he conducts them
() Any other indcpendent person may Act. It may be village Panchas
and he is competent to give evidence u/s. 9 Ev.
fairly
like. See In re Narayan Singh Supra. In this
by doctors, Revenue Officers and the
case the policc should completely
obliterate itsclf from the parade and leave it to
witness. Statements of
the exclusive direction and supervision of the Panch
Cr. PC Ram Kishan Mithan
identifying witnesses to them will not be hit by S. 162
Lall Supra, Jamena Dass Parshram 1963 M.P. 106.
15. Precautions
1. The vitnesses who are to take part in parade should be kept at a place from which
the proceedings and it should be ensured that they had not seen
they cannot sec
accused bcfore parade commenced.
the accused should be obtained
2 The thumb impressions of all participants and also
on the list against the name of each to cnsure that at any
late stage, they do not deny
the participation.
3. Every onc including Police should be excluded from proccedings.
3
should be of the same religion, and
4. The accused to be mixed with non-suspects
is The discretion of accused
about same age and description and their list prepared.
be I to 6 (other
in mixing
persons of his choice may be taken. The ratio should
persons) at least.
time
5. The accused should be given opportunity
to change dresses, places, every
before arrival of cach witness.
Witness.
for nothaving scen accused betore
8, Every witncss to. be questioned before parade
record his statement rogarding part played by
parade and aftcr occurrence and also
accused during occurrence.
excluded from other witnesses whose
9. Such witness after participation should be
do not communicate with cach other.
participation is yct to be taken so that they
of pre-ranged signals like
10. The precaution should be taken to exclude possibility
the etc. when the identifying witness reaches the parade.
cough
touching car,
3160 LAWOFCRIMES& CRIMINO.OGY
11 In case the aceuscd has some special mark which is visiblc, two identification
should be hcld. The first parade should be by covcring thc said mark with si
covering applied on the same parts of the bodics of the other participants Similar
T
sccond parade should be without conccaling any such mark. ho
12 The panchas should make a true rocord of all the procccdings, whethcr witncs
1esscs
have correctly, wrongly or failed to identify any accused. The procedure of takin
only notes at that timc and subsequcntly preparing the memo is dcfective. king
13. A certuficate should always be given that procedings have correctly been taken
Thequestion of identity is a preliminary matter for consideration in a case of dacoity or
robbery by unknown persons. No hard and fast rule can be laid down that in every case of
dacoity if there is identification by only one witness that should not be accepted. In this case
mmediately after the arrest of the appellant a request was made to the Magistrate to
for identification parade arrange
ofthe accused persons. This
appellant was produced before Shri Z.S.
Lohat, Metropolitan Magistrate to arrange for identification
parade of the accused persons
This appellant was produced before Shri Z.S.
Lohat, Metropolitan Magistrate With muffled
face with a request for arranging an identification
in the indification parade by
parade but the appellant rcfused to participate
saying that he was shown to the witness earlier. The Magistrate
though gave him statutory warning that in case he refuses to join the identification parade a
presumption can be raised against him, but he refused to join the identification parade. Shri Z.S.
Lohat, M.M. Proved the application Ex. PW 4/D, statement of the appellant Ex. PW 4/E and
the proceedings recorded by him Ex. PW 4/F.
Though the prosecution requestod for identification
parade at the carliest opportunity, but the petitioner did not avail of the same despite the statutory
warning given to him and it raises a presumption against him. There is nothing to show that he
was, shown earlier to the complainant. Identification of the appellant by the complainant in the
court carries weight particularly when he has refused to
participate in the identification parade
and in such círcumstances the prosecution has succeeded in
proving that it was appellant who
was one of the robbers.5
Where the only source of light at place of occurrence which was village where dacoity in
question took place was an earthen lamp, the identification of accused even in such light
would not be a problem for villagers especially when many of dacoits were direct relations of
complainant. The visibility capacity of urban people who was acclamatised to fluoresent lights
or incandescent lamps is not the standard to be applied to villagers whose optical potency is
attuned to country-made lamps. Their visibility is conditioned to such lights and hence it would
be qunte possible for them to identify men and matters in such light. o8
Proceedings of Magistrate
After the First Information Report is dran up and the huc and cry noticc despatched,
the Investigating Officer should consult the crime map, crime dircctory and the list of
serveillees and wanted criminals to note which criminals are likely to have committed the
crime. Officers and men available at the Police station should immediatcly be deployed to
make enquirics about gangs or eriminals who are likcly to have had a hand in the crime
The Investigating Officer should then proceed to the spot as quickly as possible,
taking with him his investigator's box. He should make inquiries in villages enroute about
the occurrence and likcly criminals.
The first and foremost duty is to cordon it off and examine it minutely. Nothing
should be touched or disturbed unless all the details are noted, sketched and wherever
necessary, photographed. At first the Investigating Officer should make a quick survey of
the place of occurrence and arrange to preserve all visible clues by covering them with
pots, baskets or cmpty boxes. If deaths has occurred, inquest should be held and the body
or bodies sent for post-mortem examination. If there are injured persons, they should be
sent for medical examination with injury reports.
A thorough inspection of the sccne should then be commenced. Damagcd doors and
windows, ransacked boxes and articles touched by the culprits should be examined carefully
and other
for fingerprints and tool marks. The lines of approach and retreat, the rooms
places ransacked the culprits, the place of assembly and the place where the booty
by
was distributed, if found, should all be examined minutcly for foot-prints, shoc-prints, shoes.
projectiles and any other articles left
blood, soil, fibre, implements, fired cartridge cases,
behind by the culprits.
if not. at
Aplan of the of crimc should also be prepared prcferably to scale;
scenc
hard and
should be measured correctly and noted. There is
nevcr
least the distances
crime.
fast formula for the investigation of a particular class of
statements
named in the First Information Report or in the
In some cases dacoits are
circumstances of such cases, the fact
that they are usuall
or iwitnesses. Considering the as possible
cover their faces,
use lights as little
committed at nights, that the dacoits often
a show of (o
victims and frighten them out of their senses by
Overawe their stil sleepy as woll as for th
serious consideration for the Policc
actual) brutality. it is a mattcr
for Offtice
such circumstances. The Investigating
identification is possiblc undcr
Court whether to make hasty arrests c
or
to narrow down his investigation
should be very carcful not
identification alone.
the strength of such one stirred
views a thing better than
that a clam mind
It cannot be disputed the object or the incident that impres
latter bc so rivetted on
cmotion, yet, even the may
that it retains an almost photographic impress
l d c o m e t i m e s be true to say
3164 LAWOFCRIMES& CRIMINOOGY
of its vividness. A man who has ben torturcd or a
lady who has bccn strippcd of
will not casily
forget the faces of the persons who pcrpctratcd such Strippcd ot her
jewoller iwu
atrocitics
The identification of a miscrcant a
by witncss
seeing his facc and marking his fcatures. This independs
on the
opportunity the lattcr hod
turn depends on whcrc
posted. the distance from which he saw the accuscd, the time for the witncss
which hc did so
prevailing light. All thesc factors are open to test by reconstruction and it is in the
and t
he
results of such test that cvidence of light of th
identification should be accepted or rejected.
criminals there were persons with If, amono the
or
outstanding features or noticeable,
speech, the witnesses should be able to mention them. This pcculiarities build. gaitof
would lend assurance to
identification. their
The same applics to
any special conduct on the part of the miscreants for
witnesses to retain a clearer this enables the
able to state as to what
picture of the persons concerned. The witnesses
should also be
weapon the man they identified was armed with or what
he played in the
dacoity. Of course ail these details must find a place in the Firstparticular part
Report or case diary or both. Information
An investigating Officer should not depend too much on confessions and
Recovery of identifiable property will be more clinching. He should identifications
the theories
by him intellectually and patiently, discard those that are found to bepursuc formed
others with vigour. incorrect and the
pursue
18. Procedure
charge.
For detailed discussion as to what constitutes an attempt, sce Section 51land 307 ot
IPC
n order to prove this offcncc, the prosecution must prove that the accused attemprca
and
to commit robbery and his acts squarcly falls within the ambit of Scction 390, 592
IPC
3165
SCOPE
Sec. 394
Section 394
5. Probation of Offenders
1. Scope Section 392, 394
6. Distinction between
2. Ingredients and 397
offences
3. Joint Trial of many
4. Sentence
7. Charge
for life
Punishment. ...Imprisonment
Or
R.I. for a term which may
extend to Ten years.
&
Fine
Attempt
.under Section 394 IPC
Causing hurt... '
' ' * ' * * * * * * *
1. Scope
the offender causes any hurt, simple
In while attempting to commit robbery
case then the offence
with weapon which is not a deadly weapon,
or grievous or dangerous any offence would
Section 394 IPC and if grievous injury is caused the
talls within the ambit of 7 ycars R.I. and
minimum sentence has becn prescribed
be under Section 397 for which the
finc.
3166
LAWOFCRIMES& CRIMINOLOGY