A. BADHARUDEEN, J.

1. This revision petition has been filed under Section 397 and 401 of the Code of Criminal Procedure (hereinafter referred to 'Cr.P.C.' for short).

2. The revision petitioner is the second accused in C.C.No.72/07 on the files of the Judicial First Class Magistrate Court-II, Attingal and he impugns judgment in the above case as well as judgment in Crl.A.No.254/2012 dated 03.03.2016 on the files of the Additional Sessions Court-VII, Thiruvananthapuram.

3. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. Perused the records.

4. I shall refer the parties in this revision petition as 'prosecution' and 'accused' for convenience.

5. The prosecution case is that at about 10.15 am on 17.09.2006, the second accused, who was a pillion rider on a Hero Honda Splendor motor cycle bearing registration No.KL- 01-T-5984 ridden by the first accused, while travelling from Kilimanoor – Karette, snatched away a gold chain worn by the first witness, who was waiting for bus at Erattachira. The specific case is that the second accused got out from the bike and snatched away the gold chain, weighing 55.825 gm having value of Rs.55,000/-. On this occurrence, crime alleging commission of offence punishable under Section 392 of IPC was registered.

6. After investigation, final report was filed against accused Nos.1 and 2. The trial court took cognizance for the said offence and secured the presence of both accused for trial and finally tried the matter. During trial, PW1 to PW7 examined, Exts.P1 to P9 and MO1 and MO2 marked on the side of the prosecution.

7. On completion of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. and opportunity was provided to him, to adduce defence evidence. But no evidence was adduced.

8. On appreciation of the evidence, the trial court convicted accused Nos.1 and 2 for the offence punishable under Section 392 of IPC. Accordingly, they were sentenced to undergo simple imprisonment for 1½ years and to pay Rs.1,000/- each. In default of payment of fine, simple imprisonment for one month also was imposed.

9. The first accused challenged the conviction and sentence before the Sessions Sourt by filing Crl.A.260/2012 and the second accused challenged the same as per Crl.A.254/2012. On re-appreciation of evidence, the learned Sessions Judge acquitted the first accused and confirmed the conviction as well as the sentence imposed against the second accused.

10. While challenging the conviction and sentence imposed against the second accused/revision petitioner, the learned counsel for the accused submitted that in this case, the second accused was not identified properly as the person who snatched away the gold chain worn by PW1 and PW1 has no familiarity with the second accused. It is submitted by the learned counsel for the accused/revision petitioner that, in this case, the identity of the second accused is not proved and PW1 identified the second accused at the dock and the said identification without support of Test Identification Parade by way of corroboration could not be believed, to hold that the second accused was the person who snatched away the gold chain. In this connection, the learned counsel for the accused/revision petitioner relied on the decision of the Apex Court reported in 1979 KHC 393 [Kannan v. State of Kerala].

11. The second point argued by the learned counsel for the accused/revision petitioner is that recovery effected under Section 27 of the Indian Evidence Act by itself is not sufficient to find the guilt of the accused unless there is corroborative evidence to support the same. In this connection, the learned counsel for the accused/revision petitioner placed a decision of the Apex Court reported in 2022 KHC 6449 [Jafarudheen v. Stated of Kerala] and in the said decision in paragraphs 30 and 31 held as follows:

“30. S27 of the Evidence Act is an exception to S 24 to 26. Admissibility under S.27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, S.27 is an exception to S.24 to 26 meant for a specific purpose and thus be construed as a proviso.

31. The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under S 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under S.27 of the Evidence Act.”

12. Insofar as the decision reported in Jafarudheen's case (supra), the case dealt by the Hon'ble Supreme Court is one alleging commission of offences punishable under Sections 302, 427, 148, 460 read with Section 149 of IPC. In fact, there is no dispute that recovery evidence alone is not the sole basis of conviction subject to exception.

13. Coming back to the facts of this case, PW1 lodged Ext.P1 First Information Statement on the allegation that the second accused snatched away her gold ornament while she was at the bus stop at Erattachira. PW1's version is that while she was at the bus stop, the second accused reached near her and placed a chopper on her neck, then he and snatched away her gold chain by using his right hand. Thereafter, he beat on her shoulder. She caught hold on the hands of the second accused and cried aloud. Then accused Nos.1 and 2 hide from the place of occurrence on the same bike. PW1 given evidence further that the number of the bike as KL-01-T 5984 and her evidence further is that the chain stolen by the second accused was obtained by way of interim custody and the same is identified as MO1. Similarly, she identified MO2 as the chopper placed on her neck. She also stated that the weight of the gold chain is 56 gm. Thereafter, the witness identified the second accused at the dock.

14. Insofar as identification of the accused is concerned, the law is well settled. In this connection it is pertinent to refer the observations in [(2003) 5 SCC 746], Malkhansingh & Ors. v. State of M.P while dealing with Section 9 of the Indian Evidence Act and the necessity of test identification parade and failure in consequence thereof. While dealing with question of identification of the accused the Apex Court held in paragraphs 7, 10 and 16 as under:

“The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.

But failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The identification parades belong to the stage of investigation, and there is no provision in the Cr.P.C which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. These parades do not constitute substantive evidence. The substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.”

15. In a recent decision of the Apex Court reported in [(2022) 9 SCC 402], Amrik Singh v. State of Punjab is also relevant, where the Apex Court considered the consequence of non holding of test identification parade and held as under:

"As per prosecution, appellants came on a scooter and after thworing red chilli powder into the eyes of the complainant and killing the deceased by firing shot at him, took away their scooter and cash amounting Rs.5 lakhs lying in the dicky of the scooter – In the FIR, the complainant merely stated that the accused were three young persons out of which two were clean shaven and the one Sikh (sardar) who had tied a thathi having the age of 30-32 yrs – Complaint also not stated in his first version that he had seen the accused earlier and that he will be able to identify the accused.

-- While identifying the appellants in court, complainant tried to improve the case by deposing that he had seen the accused in the city on one or two occasions and he specifically and categorically admitted in the cross- examination that it is incorrect that the accused were known to him earlier -- Hence, non-conducting of TIP, held, fatal in the present case and the conviction based solely on identification of the appellants by the complainant for the first time in court, held not sustainable and set aside.”

16. To be on the crux of this matter, the legal position is no more res integra on the point that the identification of the accused person at the dock during trial, in cases of direct evidence, for the first time, from its very nature is inherently of a weak piece of evidence. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. Thus Test Identification Parade (TIP) is considered as a safe rule of prudence generally to look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, not as a rule of evidence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony, it can safely rely, without such or other corroboration. At the same time, much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glance of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.

17. No doubt, failure to hold a test identification parade would not make inadmissible the evidence of identification in court, if such identification is wholly reliable. Indubitably, identification parades as a rule of prudence to be resorted to at the stage of investigation, and there is no provision in the Cr.P.C which obliges the investigating agency to hold, or confers a right upon the accused to claim a Test Identification Parade. Test Identification Parades do not constitute substantive evidence. The substantive evidence is the evidence of identification in court and the Test Identification Parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a Test Identification Parade, is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification, even without insisting on corroboration.

18. Further, while identifying the accused in court, if the witness says that he had seen the accused on one or two occasions prior to the occurrence or the witness had occasion to identify the accused at the time of occurrence with certainty, without giving such a statement to police, the same is a serious omission to be read as contradiction to disbelieve the identification of the accused at the dock. The same is to be read as a vital and material improvement made by the witness/witnesses in Court, which would attract less probative value. In such cases, non-conduct of Test Identification Parade (TIP), to be held as fatal and the conviction based solely on identification of the accused by the occurrence witness/witnesses for the first time in court is not sufficient.

19. In this case, admittedly, the accused reached near PW1 and threatened her by placing a chopper on her neck and thereafter snatched away her gold chain. When the accused was arrested, he was given statement before the Investigating Officer that he would show the gold chain as well as the chopper and acting on the disclosure statement espousing authorship of concealment, when the Investigating Officer followed him, MO1 and MO2 were recovered at his instance as per Ext.P4 recovery mahazar. Though it is argued by the learned counsel for the accused/revision petitioner that nobody cited as witness in the recovery mahazar, it is relevant to note that no serious challenge raised as regards recovery during cross-examination of PW4, who recovered the items acting on the disclosure statement given by the accused. Cross-examination was confined to suggestion to the effect that Exts.P3, P4 and P5 were prepared at the police station and the same was denied by PW4. Thus, the recovery of MO1 and MO2 at the volition of the accused is well established in this case, but the said evidence requires corroboration to act upon, as argued by the learned counsel for the accused.

20. In the case at hand, even though the identification of the second accused was at the dock, no serious cross- examination effected while cross-examining PW2, disputing the identity. The challenge is confined to question to the effect that PW1 had no familiarity with the accused prior to the occurrence and PW1 did not see the accused after the occurrence. In fact, in this case, the recovery of MO1 and MO2 is well proved with the evidence of PW4. When PW1 was examined, she identified MO1 as the stolen item which received on interim custody and PW1 narrated the overt acts at the instance of the second accused. It is true that recovery evidence alone is the sole basis of conviction, but the same requires corroboration. Corroboration, in cases of stolen property, is nothing but identification of the stolen item by the person, who lost it after affirming the circumstances of theft and on proving ownership of the stolen property by PW1. In the present case, PW1 well identified MO1 and MO2 and thereby corroborated the recovery of the same.

21. Regarding the identity of the second accused as the person who snatched away the gold chain, PW1 being the victim of crime, had occasion to have an imprint of the face of the second accused while he was committing the crime and if thereafter, the witness identifies the accused at the dock, the said identification also need not be disbelieved. Thus, it appears that the trial court as well as the appellate court rightly evaluated the evidence and entered into conviction. Therefore, the conviction does not require any interference. Coming to the sentence, the trial court sentenced the accused to undergo simple imprisonment for 1 ½ years and to pay fine of Rs.1,000/- under Section 392 of IPC and in default of payment of fine, accused would undergo simple imprisonment for a further period of one month each and the same was confirmed by the appellate court.

22. The learned counsel for the revision petitioner canvassed leniency in the matter of sentence. Acting on the said plea, the sentence can be modified.

23. In the result, this revision petition stands allowed in part. The conviction imposed against the second accused stands confirmed and the sentence imposed by the trial court and confirmed by the appellate court stands modified as under:

(a) The second accused/revision petitioner is sentenced to undergo simple imprisonment for a period of 8 months and to pay fine of Rs.10,000/- (Rupees ten thousand only). In default of payment of fine, he shall undergo default imprisonment for a period of two months. Default sentence shall run separately.

(b) The order suspending sentence and granting bail to the revision petitioner shall stand vacated and thereby the bail bond, if any, executed shall stand cancelled.

(c) The second accused/revision petitioner is directed to appear before the trial court within three weeks from today to undergo the modified sentence. If he fails to do so, the trial court is directed to execute the sentence without fail.

24. Registry is directed to forward a copy of this order to the trial court for information and execution of the sentence without fail.