Sec.

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

The offence of simple robbery

is punishable under Section 392
and that of
accompanied by hurt, Section 394. A conviction under both the sections is notrobbery,
under
Where an accused is convicted under Section proper
394 he should not be convicted under Section
392 for an offence under Section 392 is a
394.9
minor offence in relation to offence under Section

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

Cognizable- Warrant-Non-bailable Not

Magistrate of first class/Metropolitian compoundable- Triable by any
- -

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
*****

which you robbed him of was the property of AB

(specify the highway), atthen
the hours of sunset
in... .street in his possession and
and sunrise, and
392, of the Indian Penal thereby committed an offence about.. . between
on the said
charge.
Code, and within my cognizance. And I punishable under Section
hercby direct that you be tried
"And hereby direct
that you be tried on
modified at any time the said
before the charge." The charges framed can be
36.
pronouncement of judgment.
Pakhar Singh vs.
37. Crown. AlR 1950
Joseph Koovcli Poulo E.P. 66: 51 Cr. LJ
581.
38.State of vs. State
of Kerala,
Maharashtra 2000(3)
39.
Joseph vs. State of Surcsh, 2000(1 ) SCC 471. Supremc
vs.
588.
Kerala, 2000(3)
Supreme 588 (Decided on 274.2000)
Sec. 393] SCOPE 314

Section 393

Attempt to commit robbery.-Whoeverallempts to commil rohhery shall

be punished with rigorous imprisonment fora term which may extend t9 seven
years, and shall also be iable to fine.

SYNOPSS

1. Scope 12. Identification proceedings

2. Comments Presumption
3. Preparation 13. Identification Parade by Police
14. Conduct of Parade and Precautions
4. Attempt
5. Sentence 15. Precautions
16. Instructions issued by the Punjab
6. Identification & Light Government re-identification
7. Identification
parades
8. Identification and Sketch and 17. First Information Report
Photograph Prints 18. Procedure
9. Identification and Finger
10. Identification-FIR-Description 19. Charge
11. Ba-parda'

1. Scope to commit robbery' and expressly

Section 393 deals wvith punishment for offence 'attempt
provides the punishment for attempt to
commit robbery.

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 :

an any act is not an offence.

offence under the Code.3 The A
test for
determining preparation also is not, as such,
attempt or preparation is whether the whether the act of the made
changes his mind and does overt acts
already done are such
accused constituted
not
completely harmless.6 proceed further in its progress the that if the
offender
acts
3. Preparation already done would be
The
preparation consists
commission of the offence. inOn devising or arranging the
the
movement towards the the other hand, an means or measures
convicted of an commission after attempt to commit the necessary for
attempt to commit a crimepreparations are made. offence
In order that a
is a direct
commit the he
offence, and secondly, to
criminal attempt.
must be shown first to person may be
The test for have done an act which have had an intention to
the offender determining whether the overt actsconstitutes the actus reus ot a
done would bechanges his mind and does not
complctely harmless. proceed further in itsalready done are such that if
Accuscd's progress the acts alreauy
to commit procurement of the instruments for
the offencc
if in the the commission
preparation comes very near absencc of some further of offence
will not consuu
renders the crime so to the overt act. But it has been
penitentiae in probable that the actaccomplishment
the need of a will be a the intent tosuggesu
shment of the act, the that
completeit
3. AIR further misdemeanor,
exertion of the will to though there compi
there isis still
still a locus a
1980 SC 1111
4. 1971
Cr. (1117): 1980 Cri. LË complete the io
5. (1904) LJ 1804 (1807,
4) Cri. 1j
1 1808) (DB) 793. crime.
LJ 1152
6. AIR
554
(555) (PC) : AIR Madh.
1920
Pra. and AIR
1967 Raj.
aj. 149
1970 SC 713 All. 196 (150): 1967
7.
Malkiat (715): 1970 Cri. LJ (197): 21 Cri. LJ 576:A Cr. LJ 920
AIR 1953 Mad. 609 610): 1953 Cri.
8. Singh vs. State
United States 750.
of
362: Conumouvs. Coplon, (fPunjab, AlR 1970
A SC 71
 Sec. 393 PREPARATION 3147

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

after the preparations are

made
will not constitute
Accused's procurcment ofthe instruments for the commission ofoffcncc
act. But it has becn suggested that
to commit the offcnce in the abscncc of some further overt
if preparation comcs very near the accomplishment of
the act, the intcnt to completc it renders
therc is still a locus penitcntiac
the crime so probablc that the act will bc a misdcmcanour, though
in the necd of a further exertion of the will to complete the crimc.

specificd attcmpt. it is also

crime docs not ámount to an
Mere intontion to commit a
the particular crime, does some overt
essential that the defendant, with the intent of committing
which in the ordinary and likely course of things
will result in,
act adapted to, approximating, and
the commission thercof1

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

artiIclcs in thc houss¢ may causc;

of
Scattering
48 dacoity. 19
or

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

of Section 5l1 IPC. This section 393 and 398 are

specific sections where punishment has been
provided so Section 511 IPC has no application on these sections
6. Identification & Light
The Court has to be satisficd that there was not only ample opportunity for the witnesses
to identify the culprits but they had idcntified them with the help of some light either in the house
or outside. In the
present case, all the witnesscs have asserted that electric light was there in
the house, as well as on the road, when the
dacoity was committed. The factum of there being
electric connection in the house and on the road
not was
challenged on behalf of the appellants.
Only suggestion was given that during the
a

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

about 30 to 35 paces from the place of occurrence23

distance of
Even best known person cannot be recognised in clearest moon light beyond
17 years.24

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

No difficulty arises so faras the second witness is concerned. The

evidence would be admissible on the Inspector's
that the Inspecior's evidence as principle already discussed. In holding however
to the
the Court broke new identification by the first witness was admissible
ground and. it is submitted, went too far n the absence
witness evidence that the man whom she had of the
evidence before the court was the identified was the culprit the onlyy
on
any view was the purest
Inspector's evidence of what she had said, which
The Court does nol seem to hearsay and unsupported
by any evidence at the trial.
have adverted to this
or not R. vs. Mcl.ean30 was aspect of the matter at all. Whether
Osborne & Virtue should not
rightly decided it is submitted that on this
point R. vs.
be followed."
Somc of the dacoits were armed
with guns. One of the inmates
dacoity was committed was assaulted. Inmates of, the housc where the
werc terrorised and
tired guns for
scaring the villagers and there was a reign of terror werc frightened. Dacoits
former identification 10 out of
12 witnesses had during dacoity. Still in the
performance of othcr two witncsscs was totally correct performance and even the
good. Then it is
and Arun
Kumar, PW 2 corrcctly identified Patiram inevident that Krishna Dco Rai, PWI
performancc was thus six out of six.
Such
subscquent identification. Their
bound to be under a brillient identification by witncsses who were
fcar or terror, must be
Case called too good to be believed and
of Chunnu vs. State, 1954 Cri. LJ suspicious. In the
1762 (AIR 1954 All.
o
2% r
785), similar identification
See this
reason
33-38. inlra. 1.ibling. op. cit.. considers that
2 Rs. there is no hearsay
Osbourne and element in this type ol eviacnce.
c. cit Cross i Virtue. (1973) 1 O
Soc. 393] I1DENTIFICATION AND SKETCHAND PHOTOGRAPH 3151

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

8. Identification and Sketch and Photograph

Phipson on cvidence (13th Eddition, para 16-10, page 339) has stated as under
"In R vs. Smith (Percy)32 a sketch drawn by a police officer under the direction of
a witness was held admissible, apparently as part of the latter's testimony The

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.

satisfactory reason for admitting the sketch is that it is analogous

to a
A more
is irrelevant
photograph (see 27-62). It is submitted that how the sketch was prepared
in chief, but on the authority of the decisions on photographs the wiBness can say
"This sketch, which l saw on February 28, 1982, acorded with my recollecion of
the man whom I had seen the day before'". It is unnecessary to call the maker of the
Willes J. saicd in R.
sketch any more than it is necessary to call the photographer As
vs. Tolsons3: "The photograph was
admissible because it is only a visible
ihe witnesses by
the image or impression made upon the minds of
representalion of
the sight of the person or the object it represents; and it is therefore, in reality only
another species of the evidence which persons give of identity, when ihey speak

merely from memory

9. Identitication and Finger Prints
The involvement of appcllant Bhagaban has becn further proved from Ext. 17 which is
the opinion ofthe Finger Print Expert. During the investigation the ASI of Gurudijhatia P.S. who
2423.
31. Sheonath Bhar and others vs. State, 1990 Cri. LJ
32. R. vs. Smith (Perey), (1976) Crim. LR 511 (C.A.); cf. Catternmole vs. Miller (ante).

33. R. vs. Tolson, (1884) 4 F. & F. 103.

 3152
LAWOFCRIMES& CRIMINOLOGYY
mmediatch after registration of the case took up the invcstigation on
16 4 po
Sc.. 193
plate susrhccti. had scizcd unde
scizure ist Ext. 19. one stainless-stcl plate and one ceramic
whilc committing the dacoty might have left tinger impressions
sent to the
that thc
Finger P'rint Bureau for examination by cxperts and the those atcs. Thecyculprit,
on suspccting
wor
the finget prnt marked
'A detected the other surfacc, report (Ext.
on
the spocmen finger pint marked 'X° said to of the stainlcss-steel 17)
the 'right thumb ate tallicd with
Das' This part of the cvidence
of the Investigating Ofticer 34
of the prosccution has not been
shaken in the crose
aban
it is ver strange that only two broken glass pieces
ation
prints tallhing with the finger prints of A-I and A-2 among othcrs recovorod
information about the arrest of the According to
respcctivcly.
from thc
the
c

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

Admittedly, the appellants were not known to

so, P.W.1 who the family
lodged the FIR must have members of P.W. 1. Had it
in the FIR that
the culprit who mentioned
assaulted him their names in the FIR. been
tall and would be with lathi was of P.W. 1 mentioned
agced about 30 to 32 fair complexion,
protruding tecth. Thercforc, it is evident that assaultod P.Ws. 5strong,
ycars. The culprit who
and thin with stout but
face with mask and 7 was a tall
though it was statcd in the FIR that these two culprits did not cover
face some of the
culprits
their
had masks on their
In the
present case, P.W. |
appellants. It was for the defence to had described the identifying
features with regard to two
features so given by P.W. I bring out in cross-examination
did not that in fact these
Mukherjc and tally with the idcntifying features
Bhagaban Das at the time identitying
of T.I. of appellants Pradip
11. Ba-parda' Parade.36
Accused Birendra
No. A-77 of Singh attended the court of the
1974 on 3rd Sessions Judge in the said Session i
December,1975 and that December, 1975 and thereafter
he there is no evidence attended the same court h
was
brought from jail on record to
show that on 18th o01
T1s the copy of the Baparda and kept Baparda till his return Decem
ordcr-shcct
Direndra Singh was one of the the aforesaid Sessions Trial No. A-77 of aay
of to jail
to jail the
the same day. x. Kha

34. accused Birendra accuscd. From this order-sheet -sheet of 18th

19141975 it is
December
35. Sesadeva Mallik Singh had come from jail and his 18th D d atat the time
36. Chandran
and others face was covered t1me
Sa alias Vs.
Sasadeva MallikSurendranand State *
of
Orissa,
U
and others others vs. State 1992 Cri. LJ 1256.
vs.
State of Oris of Kerala, 1990 Cri. LJ 2296
rissa. 1992 Cri.
LJ 256
(SC).
 Sec. 393 BA-PARDA' 3153

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

witnesses which would otherwise be acceptable cannot be thrown out.8

The that be culled out from the aforesaid decisions are

principles can

relevant u/s. 9 of the

That facts which establish the identity of an accused person are

Indian Evidence Act.

to this that certain persons
Identification proccedings in thcir legal effect amount simply
that
are brought to jail or some other place
and make statements cither express or implied
whom they recognise as having been
certain individuals whom thcy point out are persons
of a
substantive evidencc. The substantive evidence
concerned in the crime. They constitute
test that
witness is the statement made in Court and
the purpose of test identification is to
look for corroboration of the sworn testimony
evidence. It is a safe rule of prudence to generally
in the form of
of witnesS in Court as to the identity of the
accused who are strangers to them,
identification in order to carry conviction
earlier identification procecding. The evidence of
circumstanccs the identifying witness came
ordinarily clarify as to how and under what
should accused played
to pick out the particular accused person
and the dectails of thec part which the
in the crime in qucstion with reasonable particularity.
such identification parades is the effectiveness
The vital factor in determining the valuc of
for holding them against the ident1fying witnesses
of the precautions taken by those responsible
of sccing the persons to be identified by them before they are paraded
having an opportunity
1991 Cr. LJ 1381.
37. Mahendra Singh vs. State of U.P,
1991 Cr. LJ 846.
38. Satrughana vs. State of Orissa,
 3I54 LAWOFCRIME:S & CRIMINOLOGY

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

43. 112 ra Satyanarayana

vs.
Ind. CasState
vs.
1991 Cr. LJ
State of 269.
of llaryana, Andhra
109. (1995) 1 CCRPradesh,
14
1994 Cr. LJ 37
(SC): (AP).
1995 SCC (Cr.3
Sec. 3931 BA-PARDA' 3155
arc terrorizcd. is gencrally
at thetime of a dacoity when blows arc struck and the pcoplc
night
of very little value.44
is typc wcak of cvidencc
identification parade which a
The accuscd refused to join the advcrsc infcrcnce can
his rcfusal was justificd and no
Held. in the circumstances of the casc, thc idcntification of the accused
test identification paradc
be drawn from it.45 When there is no is of no asSistancc to the
after a pcriod of morc than 3 ycars
for the first time at trial and that too
prosccution 46
Murder- Accuscd not known to witncsses-Vague
Indentification parade - Accused pointed out to witncsses
descriptions given so as to within their sweep
cover many
be based
parade-JustifiedConviction could not
-Refusing to participate in identification
on identification.47

inference can be drawn against

parade- Refusal to participate- Adverse
Identification
no advcrse inference could be
accused only after his refusal has been proved- Held on facts,
drawn against accuscd.48
shown carlier to witness- Refusal
Identification paradc- Robbery case- Accused not
It raises presumption against him.3
participate in Identification parade
-

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

be proved bysatisfactory and reliable evidence.

AIR 1968 SC 938 (947), "showving a photograph prio
As observed by Supreme Court in a witness "to identif
identification makes the identification worthless." Thc ability of
to the him data
him the suspect, or his photograph or funishing
should be tested without showing
for identification."
and to
of The fair thing is to show a series of photographs.
There is no shortage suspccts. accused. Ti
information can pick out the prospcctive
see if the person vho is expected
to give hand who is to bs
to inform a witness before
is clearly illcgitimate, it
would be most improper, familiar t
the of making the teatures of the accuscd
called as identifying
an witness by process
him through a photograph.30

44. 1952 RLW 130.

Del. LT 120.
45. 1986 Cr. LJ 253 (1Del): (1985) 25
46. 1988 34 DLT 79 (Del).
3 Delhi Lawyer 316.
47. 1991 Cr. LJ (NOC) 10 (DB): (1990)
23 1Delhi LT 42.
48. 1983 Cri. LJ (NOC) 3: (1983)
1991 Cri. ILJ 2612 (2614) (Delhi).
49 Delhi LT 42.
50. Rajinder Kumar vs. State, 23 (1983)
 3156 LAWOFCRIMES & CRIMINOIOGY

12. ldentification proceedings- Presumption

lt is to be presumed. no doubt under Section 1 14 that cvcry official act is
but this presumption is hardly sufficicnt to satisfy a Court that such
prancrl
operly porformed
taken as to render an identification tnuly valuable,
procaution
c g., mixing the accuscd in laroe . been
large numbc
men dresscd all alike51

Normally the of accused pcrsons that they were shown

plca to witnesscos
accepted. but where therc are circumstances to indicate that the investigating of be
prejudiced against them and was interested in their prosecution, the
acts were done fairly docs not presumption that the Was
ption
the c
and tainted 52
remain and the whole investigation becomes doubtful. susnoffici
From refusal to appear in a test
arises under Section l14 but it is identification parade a presumption against the
infer guilt of the accused 53
not such a
presumption that can be conclusively relied acciise
upon to
to
ldentification proccedings- Accuscd when
produced before Court for purpose of
shownto witnesses by police-Application for remand
and order remand
or even
suggesting factum of accused being present in Court passed thereon not showing
refusal to participate in test with his face muffled Plea of
under Section 313, Cr. PC.
identification parade by accused Plea carried over in
- -

inference could be drawn

Held.
-

plea of accused was statement

against him.54 not unjustified and no adverse
Statements made by
Section 164, Criminal P.C. persons identification parades are nothing but statements
at
These statcements are not under
statements of witnesses and can substantive evidence but are
under Section 157, or only be used for the purposes of mercly previous
contradicting them under Sections 145 and corroborating witnesses
155.55
Identification in jail are of considerable
Sub-Inspector gives the Court confidence in value when the conduct of the
the correctness of his investigation by the
Witnesses not methods.6
of other witnesses who had
participating in
identification parade. That does not
ample opportunity to identify detract value of cvidence
Occurrence assailants who partic1pated l
The rule that
identification evidence is a very
universal application. Where weak type of
by Magistrate after
a
the witness
correctly identifies
cvidence is not a nic
taking all the precautions and then the accused at the T.I. parade
evidence of identification identifies the accuscd also in
Identification becomes
can be believed
unless it is otherwise court
some length of time stronger when the witness has an infirm. The eviac
in broád
day light.8 opportunity of sceing accusu
the
S1. AIR 1922
Lah. 31
52. AIR 1955 NUC (32): 23 Cri. LJ 449
(All) 2747.
2100
3:
(1983) 23 5(D)
Delhi LT (Him. Pra.); 1981 Cri. LJ 512
54. 1985 Cri. LJ 42. (513)) 1981 Chand Cri. c. 39 Cri. OC)
55. AIR
484:
(1984) 11 Cri. LJ
(Delhi); 1983 La
56. 1950 Lah 167: 51 Cr.
AIR 1947
275.
LJ 1350.
57. 1994 Oudh 95: 48 Cri.
58. AIR (SCW)
AIR 1978 Sc 1140 1994
LJ 27.
1770: 1978 AI. Cri. LJ 1381.
LJ 1156.
 IDENTIFICATIONPARADE BY POLICE 3157
Sec. 3931

Adversc infercncC can bc drawn against

ldentification parade. Rcfiusal to participate.
accused only aftcr his rcfusal has bcen provcd.3
to witncss. Rcfusal to partic1patc in

In robbcry case the accuscd not shown carlicr

identification paradc. It raises presumption against him.50
rccovcrcd black attache
Identification sought by mixing up
Black attache casc recovercd. also stating the same.
colours but not black. Complainant
with three other attaches of different
evidence to be discarded.61
1984 at 9.00 p.m
They were vicinity of Rajdoot Hotel in 18th November,
arrested in the
were produced before
PW-95 Shri Raghbir Singh, Metropolitan
on 19th November, 1984, they
Ex. PW-91/A for their Test Identification Parade
Magistrate, by the police with an application November
fixed the TIP for 22nd November 1984. On 19th
injail.The Metropolitan Magistrate 1984 both of them rcfuscd TIP. Therefore,
1984 when the TIP was fixed for 22nd November,
inference from their refusal to participate in the
the trial Court was right in drawing an adverse
both the accused would would have been
TIP to the cffect that in case the TIP was held, with
who participated in the dacoity along
identified by the prosecution witnesses as the ones
Subhash on the fateful day.82

13. Identification Parade by Police

Therc is no
held by the police officer himself.
The identification parade should not be can be
Rules of different provinces that a parade
doubt that there are provisions in the Police witnesses. This
in the presence of two respectable
held by a police officer of the suspect the parade himself
difficultics and police officer should avoid holding
however, presents legal
1952 V.P.7, and (V.P.) Kartar
1952 Cr. LJ 986
It was held in Bhaya Lall Singh vs. State,
points:
Singh vs. by an I.O. was defective due to the following
State the identification
of expediency alone, the I.0. being naturally
(i) It is not advisable on the ground is. likely to show improper zeal. In re
interested in the success of the case and
M.P. 225).
Narayan Singh. Amar Singh (1965
time of picking
It legal difficulty as the witness makes a statement at the
(i) presents a
of investigation, is hit
an
such statement being in the course
accused person and
up
by S. 162 as inadmissible.
was explained at
Khaluruddin vs. Emp. legal aspect
In the Calcutta ruling 1943 Cal. 544, embraces all kinds
is hit by S. 162 Cr. PC. It was hcld, "S. 162
length as to how the picking up The evidence of the fact
officer in the course of an investigation.
of statements made to police an identification
evidence of the statements which constitutes
of identification is nothing but the in the
identification of stolen property (or suspect)
in a campendius and concise form. Any Officor during
statement made to the Police
of Police Officer during investigation is a
presence 162 Cr. PC. The pointing out by finger
or

investigation and, is, thercfore, within the scope of S.

as statement by word or
is as much a verbal statement
nod of assent in answer to a question Madras have also held so.
mouth". The High Court of Allahabad, Mysore, Nagpur and
LT 42.
59. (NOC) 3: (1983) 23 Delhi
1983 Cri LJ
60. 1991 Cri LJ 2612 (Dclhi).
61. 1985 Chand CC 386 (Delhi).
Subhash Chander SubhashYashpal @Amarjcet, 2000(1) Crimes 330.
62. State vs.
 3158
LAWOFCRIMES&CRIMINOLOXGY
Ifat all the parade is held by a police ofticer, hc
should show what
There are some occasions when
policc a
officer whilc
fr.
him and the
complainant at once ponts out him. In such scarching
casc
the ae
magistrate becomcs 1arce.
There
idcntification afterward-
Com-
are also occasions when
articles by mining these with others police officcr has to hold
as the
job So an I0 under such circumstances magistratcs are not casily available
parade for
must satisty that he takes
should always takc
two for Jentificaa
very or
before police can still be
all the necessary
precautions. In suchrespectable witnesso
cascs the facth witn
told by the witnesscs at proved court though thC
in C
of identification
the time of
identification accompany1ng identiífi
statemcentsts to wha
by actual identifier is not hit may be inadmissible u/s. 162 C.as to
sible u/s.
case Darya
Singh vs. State 1952 Cr. LI 265 atby S. 162 Cr. PC. Hon. S. Bind Cr.IDa Tho
during police investigation he page 266 held A "A Bicni
Bisni Parsa
that the tracks
were of a
tracker
recognized on a certain day at certaintracker can sav say ine
in court
in
of crime, if did
he particular person, if he knew him
not know him
place, certain tra
it was held
that the already". The similar view was already or of a tracks
person at the
police was what wascommunication
hit by S. 162
of his own
mental act of
taken in 1949
Cal. 514 whe
sca
identifier himself was not inadmissible u/s. Cr. PC but recognition and
Mithan Lall
evidence in the court identification to r

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.

6 The objection of accused to be recorded if any.

who has not scen proceedings
7. Witncsses to be called onc by one through the person
communicate with
that he does not
or who is kept out of who remains in sight so

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

16. Instructions issued by the Punjab Government re-identification

parades
The
folloving instructions have becn issued by the Punjab Government for the guidance
OT Magistrates in their conduct of identification parades [Punjab Government circular letter No.
6/39829 (H. Judl). datcd the 19th Docember, 1936, to all District Magistrates in the
Punjab)
65. Sher
Singh alias
alnka Tiwari vs.Shera vs. State, 1991 Cr. LJ
State of 2612.
Bihar, AIR 1997 SC
2186: 1997 (3) Scalc 282 (S):
Sec. 393 INSTRUCTIONS ISSUED BY THE PUNJAB GOVERNMENT
3161
1. List of all persons inchuded in the
parade should be prepared-The Magistrate
in charge of an identification
parade, should preparc a list of all persons, including
the accuscd. who form part of the paradc. This list should contain the parcntage
address and occupation of cach mcmber of the parade.
2. Note aboui identification by witness - When any witness idcntifies a member
of the paradc. the Magistrate should note in what connection he is identificd. A
note should also be made if the witncss identifies a person wrongly;, in such a casc
it is incorrcct to note that the witncss identificd nobody. All persons idcntificd must
be mentioned, whether the identification is right or wrong. If a witncss, on
beings
called for the purpose, states that he cannot make any identification, a note should
be recordcd by the Magistrate to this effect.
3. Objection or statement by accused
identification witnesses to be recorded
or
and power of Magistrate to decide
objections- Should the accused make any
complaint or statement it should be recorded by the Magistrate. If from his personal
knowledge the Magistrate is able to decide beyond doubt that the complaint is false
or futile, a note to this effect should be made, but in other cases it is advisable to
leave any decision as to the value to be attached to the objection to the court trying
the case. The Magistrate should also record any statement made by a witness
before making an identification.
4. Duly of Magistrate to record precautions taken and to note other points
The Magistrate should state
(a) What precautions he has taken to ensure
(i) that the witnesses do not see the person to be identificd by them before the
identification procedings commence,
(i) That no communication which would facilitate identification is made to any
witness who is awaiting his turm to identify; and

do not communicate with other

(ii) that after making identification the witnesses
witnesses who have yet to do so,
and if
(b) Whether the person to be identified is handcuffed or is wearing fetters,
in the parade are handcuffed or are
so, whether or not other persons taking part
or not they are inmates of the
Jail.
wearing fetters, and also whether
the Magistrate At the end the
5. Form of certificate to be appended by
form
Magistrate should append a certificate in the following
The State... ..Versus. .....(F.I. R.
19. Policc Station... ..)
No... .of..

Parade held on the .19.... . .ln

the.. ' ' ' ' ' T

.Jail by.
..District for the identification
Magistrate..****'*' .. ..Class..
of... *** **'''* '****
on the application of.. * * * * * * " * * * * ' * * ' ' * ' * * ° *
 3162 LAWOFCRIMES& CRIMINOILOGY

Names of the witnesses vho arc cxpectcd to idcntifvy tho

thc ..
prisoncr,
particulars
with the

Proceedings of Magistrate

Certificd that the above is a true and correct record of my

proccedinos
(Sd) ngs
(Seal)
Magistrate
Class
2. The following
further instructions have been issued
subject) [Punjab Government circular letter No. by the Punjab Government
on the
December, 1943, to all District Magistrates in 6546-J.43-/83844 (H. Judl). dated the 17th
the Punjab]
In where the identification of the
cases
the request of an accused for an
accused is disputed and is a matter of
identification parade should not be refused. importance,
should not also be rejected Such a request
merely because it is regarded as a measure to create
should be possible to delay, as it
arrange an identification parade without
such a parade should not be refused delay. Again, request to hold
a
on the
witnesses last ground that it is some
the accused and the accused
saw considerable time since the
have
meantime, and in such cases in his report on the may the changed in appearance in the
witnesses did see the accused last. parade magistrate can record when the
3. Indistricts in which the
expcriment of
being tried, the work relating to the holding of separation of judiciary from the execut1ve is
Judicial Magistrates. identification parades should be done by the
(Punjab Government Letter No. 1648-G-55/11327,
Commissioners in Punjab). dated 16th February, 1956, to all Deputy

17. First Information Report

Great care must be taken in
drawing up the First Information Report. The senior er
oinant
present should do so and not leave it to his
who is oftcn in cxtrcme
subordinates. They must impress on the compla
distress, with his sympathy and
desire to hclp. Having
d
him and won his
trust, thc station officer must elicit the fullest the
Occurrnce. possible detaid
It is ber
neccssary to include such dctails the
of culprits, their names, probable caste or class, a
as approximate time of occurrence,
distinguishing marks of identification if any, description of prominent aacohts. lcader
method acthod

dress, disguisc, dislect, war-cry, a

 FIRST INFORMATION REPORT
Sec.3931 3163
of entrance. implements used in breaking open doors, digg1ng floors, disturbing granaries
brcaking safes or boxes. nature and details of propcrty stolcn with marks of identification
resistancc offered and wounds inflicted on the dacoits, if any, trcatmcnt of victims, viz..
brutal assault. torture or rapc, articles left behind by the dacoits, including clothes, footwcar,
weapons. spent cartridges. ctc., and thc linc of approach and rctrcat.

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

Cognizable- Warrant-Not bailable- Not compoundable-Triable by aMetropolitian

Magistrate/Magistrate of the first class.
19. Charge

I (name and office of the Metropolitian Magistrate/Magistrate), hercby charge you

(name of the accused) as under

i) That on or about.. ...on (date).. ..at (the place of

occurence), you committed act/acts which fall within the ambit of the offence of 'attempt to
mmit robbery' on A (name ofthe victim) and thereby committed on offcnce punishable under
Section 393, IPC within my cognizance. And I hereby direct that you be tried on the said

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

robbery.- any person, in

hurt in committing c a u s e s hurl, such
Voluntarily causing volunlarily
10 commil robbery, atlempting to
or in atlempting in commilling
or
Commiting concerned
joinlly o r with
person,
and any other person wilh imprisonment for life,
shall be punished and shall
commii such robbery; exlend lo ten years,
a lerm
Which may
for
rigorous imprisonment
also be liable to fine
SYNOPSISs

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

(1) Person causing hurt

and
commission of Robbery or its attempt.
his associates who actively For the
()
participate and are jointly
Concerned

for life
Punishment. ...Imprisonment
Or
R.I. for a term which may
extend to Ten years.
&
Fine

Please see .under Section 393 IPC

to the commission of Robbery.
..

Attempt
.under Section 394 IPC
Causing hurt... '
' ' * ' * * * * * * *

..under Section 397 IPC

Causing grievous hurt.. than 7years R.! )
(Punishnent noi less
398 IPC
Armed with deadly weapon..
. under Section
(Punishnment not less than 7years R.I.)

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

Where hurt is causcd in the commission of a thcft, thc

causing of hurt
intorobbery, and the charge should be hcld undcr this scction for cauSing hurt inchangcs th.
the coma. thcft
of robbery
The guilty of one is
act
imputed to all who arc joint with him, provided the act is dor
committing the offencc of robbery. A, B and C went together ncar the complainant lonc in
showed knife to
complainant in B's presence and A, B and C took the victim to the and A
bushes where A and C robbed the
victim of his cash and wrist watch in B's ncarh
then fled from the
spot. It was held that B shared common intention with A,presence.
and C
A, h and
the complainant.2 in robbina
Where after causing
injuries to the complainant and his concubine by
accused entered the
complainant's house and removed boxes beating them, the
utensils, was held that the
it contaning cash, ornaments and
beating was
primarily for the purpose of the theft which
immediatcly after the assault and the offence was of took place
that the robbery,
language of this section was wide enough to include punishable under this section and
a case such as this.3
As an offence
under Section 392, an
punishable under this section necessarily includes the
accused person who is offence punishabie
convicted
punished only under this section and in such a case it under both these sections can be
this section alone. would be legally
sufficient to convict him under
The offence of
simple robbery is punishable
under Section 392 and that of
accompanied by hurt, and
Section 394. A conviction under robbery
Where an accused is convicted
under Section 394 he should both the sections is not
proper
392 for an offence not be convicted under
under Section 392 is a minor offence in Section
394 5 relation to offence under Section
Where a police constable
articles found on the body of a slapped boatman and made him hand over to him certain
a

drowned person, and kept the articles himself and

having got them from the boatman, he was
held guilty under this section.
falsely denied
Removing the ornaments from the body of the victim
amount to robbery within Sec. 394 after causing his/her death cannot
because robbery is theft by force and theft is
movables out of possession of a taking away of
person. A dead body is not a person. Removing ornaments
from a dead body cannot be
taking out ofproperty possession of a person by force as
contemplated by Sec. 394.7
The recovery of
currency notes bearing initials of the cashier of the Bank from
Custody of the accused would be a very important evidence the
are scaled. But
in the absence of their
against them if the currency notes
having
bearing initials has little evidentiary value. The
been sealed, the recovery of
currency notes
circumstancc that a huge amount is recovered
ate
2.
Bchari Lal
Vs.
Rajappan Nair, 1987 Cri. LJ 1257
1985 Cri. LJ 1507 (Ker.); (1865) 2 WR (Cr. L) 6,
Ram Bilas
1965 Cri. LJ (Del.).
346.
Ph 90) Cr. R. No. 31 of 1890.
ip 3himsent Aind Unrep Cr. C. 511; Mootkec Kora
K siad vs.
1995 Cri. LË
1694. (Bom.). (1865) 2 WR (Cr.) 1.
State of U.P.,
wir uamnmad
Singh
vs. AIR
Sale, 1973 SC 448: 1973
Cr. LJ 344
vs.
State of 1974 Cr. LJ 204:
U.P.. 1978 1973 Ker. LR713.
Cr. LJ 324.