Supreme Court Upholds Conviction of Appellant in Dacoity Case Under Section 396 IPC. Identification Parade Evidence of Magistrate and Trial Court's Demeanor Remarks Held Sufficient to Sustain Conviction Despite Witness Not Identifying Accused at Trial.

Criminal appeal against conviction under Section 396 IPC for dacoity with murder in a running train.

Appellant sought to set aside conviction and sentence, arguing that identification parade evidence was not substantive and could not sustain conviction.

Appeal filed after High Court reduced life sentence to ten years rigorous imprisonment but upheld conviction, challenging the reliance on identification parade evidence.

Trial court convicted appellant under Section 396 IPC and sentenced to life imprisonment. High Court on appeal reduced sentence to ten years rigorous imprisonment but maintained conviction.

Whether the evidence of a Test Identification Parade, supported by the testimony of the Magistrate who conducted it and the trial court's remarks on the witness's demeanor, can constitute substantive evidence sufficient to uphold a conviction under Section 396 IPC when the identifying witness fails to identify the accused at trial.

Appellant's counsel contended that evidence of identification parade does not constitute substantive evidence and is governed by Section 162 CrPC, relying on Budhsen & Anr. vs. State of U.P. The prosecution relied on the testimony of the Magistrate (P.W.7) and the trial court's demeanor remarks to establish identification.

While evidence of Test Identification Parade is not substantive evidence itself, the oral testimony of the Magistrate who conducted the parade is substantive evidence and relevant under the Evidence Act. The trial court's remarks on the witness's demeanor can be considered to assess credibility. Such evidence, when believed, can sustain a conviction under Section 396 IPC even if the identifying witness resiles at trial.

It was a night robbery in a running train. The appellant was allegedly one of the dacoits. A person was killed during the course of commission of dacoity and the dacoits caused hurts to others and looted their property. Thereat, P.W.6 was able to identify the appellant as one of the dacoits besides others... and claimed that he was the one who had a revolver with him which he employed during the course of the occurrence. At the trial P.W.7 fully supported the prosecution case, deposing that P.W.6 had before him identified the appellant as the dacoit carrying a revolver. P.W.6, however, chose not to identify the appellant at the trial and rather said that he could not recognize the accused whom he had identified at the indentification parade. Despite such bend in the prosecution case, the trial court as also the High Court relied on the statement of the Magistrate, P.W.7 as to P.W.6 having identified the appellant before him at the identification parade and held the prosecution case proved beyond doubt. In that situation, the Court would certainly be entitled to rely upon such evidence as that would be relevant under Section of the Evidence Act. The appeal therefore fails and is hereby dismissed. The appellant is on bail. He shall surrender to his bail bonds.

The appellant was convicted by the Court of Session under Section 396 IPC and sentenced to life imprisonment. On appeal, the High Court reduced the sentence to ten years' rigorous imprisonment but upheld the conviction. The appellant then appealed to the Supreme Court, which dismissed the appeal and directed surrender.

• Indian Penal Code, 1860: 396
• Code of Criminal Procedure, 1973: 162
• Indian Evidence Act, 1872: