1. Appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short 'the Code') against the judgment dated 20.10.1999, passed by learned First Additional Sessions Judge, Mandsaur, in S.T. No. 34/1999, whereby the appellant has been convicted for the offence punishable under Sections 394 read with Section 397 of IPC and sentenced to undergo 7 years R.I. with a fine of Rs. 1,000/- and, in default of payment of fine, to undergo further rigorous imprisonment of 3 months

2. The prosecution story, briefly stated, is that on 12/12/1998 at about 10.30 a.m., while the complainant Bhagu Bai was going to her field, at that time on the way one person came from behind and closed her eyes, assaulted her with knife and snatched her silver ornaments (satte) which were worn by her on her feet and a silver chain. After committing the said act, the said person ran away from the spot. The peculiar fact of the case is that the complainant in her First Information Report has stated herself that she was not able to see or identify the said person.

3. After due investigation, an offence under Sections 394 read with Section 397 of IPC was registered by the Police and later on, the appellant was arrested and prosecuted accordingly. The appellant abjured his guilt and took a plea that he has been falsely implicated in the present crime and prays for trial.

4. In support of the case of prosecution, the prosecution has examined as many as 12 witnesses namely Ramesh Kumar Mishra (PW1), Shyamlal (PW-2), Baghubai (PW-3), Laluram (PW-4), D.D.K. Bhatnagar (PW-5), O.P. Sharma (PW-6), Santobai (PW-7), Amritram (PW-8), Ramchandra (PW-9), Rajmal (PW-10), Ramlal (PW-11) and P.S. Parmar (PW-12).

5. Learned trial Court, on appreciation of the evidence adduced by the parties, pronounced the impugned judgment on 20.10.1999 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of the Code, as stated above.

6. Learned counsel for the appellant submits that the appellant has preferred this appeal on the ground that the judgment and order of the learned trial Court is contrary to law and facts of the case. It is further submitted that according to the FIR lodged by the complainant and the statements of the witnesses recorded by the Police, it is apparent that the accused was nor seen or identified by the complainant or other witnesses on the spot. But in the statements of the witnesses recorded before the trial Court they have stated that they had seen the appellant and also identified him and they had also lodged the FIR by name. He further submits that the seizure of the articles/property was also not identified. As the seizure was not proved and property was not identified, hence, the appellant/accused cannot be connected with the offence only on the strength of the recovery of the articles. He further submitted that the property seized was of common use and are generally worn by every woman particularly in villages. The prosecution could not prove its case beyond reasonable doubt. The statements of the witnesses are contradictory. Learned trial Court has committed error in not considering such contradictions and omissions appeared in the statements of the witnesses. The prosecution has not proved the documents as per law even then the learned trial Court has appellant guilty. The trial Court has committed error in appreciating the evidence in right perspective. Essential ingredients constituting the offence charged with, are not available on the record even then the learned trial Court has charged and convicted the appellant. The learned trial Court did not appreciate the material evidence properly and also did not consider the defence of the appellant. In support of his contention counsel for the appellant has placed over the judgment passed in the case of Suresh vs. State of M.P. Passed in CRA No. 793/1990 on 20.01.1995. The judgment passed by the trial Court is bad in law and, therefore, it is prayed that the same be set aside and the appellant be acquitted of the aforesaid charge.

7. Learned Public Prosecutor for the respondent/State has supported the judgment of the trial Court and prays for dismissal of the criminal appeal.

8. I have considered the rival contentions of both the parties and have gone through the record.

9. Conviction of the appellant by the learned trial Court is based upon; (1) the prosecution established that the articles/ornaments has seized from the appellant and the complainant has identified her ornaments; (ii) the prosecution proved that injuries sustained by the complainant was caused by the appellant with broken bottle of glass.

10. It is the main argument of learned counsel for the appellant that identification of articles/ornaments as per the prosecution was conducted by the Executive Magistrate, but the prosecution has failed to produce the concerned Executive Magistrate before the learned trial Court for evidence. So identification of articles/ornaments allegedly recovered from the appellant is doubtful and cannot be relied and conviction cannot be based on it.

11. Facts which establish the identity of any person or thing whose identity is relevant are, by virtue of Section 9 of the Evidence Act, always relevant. The term 'identification' means proving that a person, subject or article before the Court is the very same that he or it is alleged, charged or reputed to be. Identification is almost always a matter of opinion or belief.

12. With regard to a criminal offence identification has a two-fold object : first, to satisfy the investigating authorities, before sending a case for trial to Court, that the person arrested but not previously known to the witnesses was one of those who committed the crime, or the property concerned was the subject of such crime; second, to satisfy the Court that the accused was the real offender or the article was concerned with the crime which is being tried.

13. Identification proceedings are therefore as much in the interest of the prosecution as in the interest of the accused. As was explained by the Supreme Court in Ramkishan Mithanlal v. State of Bombay, (S) AIR 1955 SC 104 [LQ/SC/1954/144] , an identification parade is held by the police, or at their request, in the course of their investigation of an offence for the purpose of enabling the witnesses to identify the per. sons who are concerned with the offence or the properties which are its subject-matter; they are not held merely for the purpose of identifying persons or property irrespective of their connection with the offence; the witnesses are explained the purpose of holding these parades and are asked to identify the persons or the properties which are concerned in the offence.

14. But it is obvious that if before the Court a witness pointed to a stranger and stated that he was the offender, or pointed to an article and affirmed that it was his property which had been stolen, there would be no guarantee of the truth of his assertion. Consequently in order to have some assurance of the truth a test identification is held that is to say, the witness at an earlier stage is confronted with the alleged offender not standing alone but mixed with a number of innocent persons of the same age-group and of similar build and features; or the suspected stolen article is mixed with a number of other articles which resemble it. That is to say, it is to give credence to the evidence of a witness who does not' know the accused from before, or who has not seen the article subsequent to the commission of the offence, that a test identification is held, since, without it the evidence of the witness concerned would have little value.

15. Of course, the substantive evidence, i.e., evidence on which alone the Court can base its order of conviction or acquittal, is that given by the witness before the Court., But the value of his deposition there of having identified the accused in the act of the crime, or identified the article, is of little consequence; before the Court can accept such identification as sufficient to establish the identity of the accused or article it is very necessary that there be reliable corroborative evidence, and the corroborative evidence which the Court is entitled to accept in such cases is that of a test identification conducted with due precautions -- if no proceedings for identification have been held, the witness' reliability has not been put to a test. In short, a test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the Court.

16. Here we should like to add that there is one basic difference between the identification of an accused person and that of property : whereas in the case of the former the identification is of one stranger by another, in the case of the latter it is invariably by the owner or by those who had been familiar with it prior to the crime, for example, stolen property -- an owner may not be able to give a meticulously accurate description of his property, nevertheless common experience shows that he seldom has difficulty in picking it out from a number of similar articles, so that identification of property by the owner or his associates can always be approached with a greater degree of confidence.

17. In the case of State of Madhya Pradesh v. Manka, 1980 MFC 216, a Division Bench of the Madhya Pradesh High Court, after examining some Indian English and American rulings, held: "The evidence of identity must be thoroughly scrutinised, giving benefit of all doubt to the accused; but if after a thorough scrutiny there appears to be nothing on the record to suspect the testimony of the identification witnesses, the Court ought not to fight shy of basing a conviction on such evidence alone, because of the bare possibility that there could be honest though mistaken identification."

18. It is settled law that test identification parade as such is not substantive peace of evidence. In the case of Aiyub vs. State of U.P. AIR 2002 SC 1192 [LQ/SC/2002/292] , he test identification parade as such is not a substantive piece of evidence, but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. '

19. In Ram Babu v. State of UP, AIR 2010 SC 2143 [LQ/SC/2010/410 ;] , it was held by the Apex Court that the purpose of test identification parade is to test and strengthen trustworthiness of the evidence of the witness in the court. The evidence generated by a test identification parade is used for corroboration.

20. In Md. Kalam v. State of Rajasthan AIR 2008 SC 1813 [LQ/SC/2008/725] , it was held by the Supreme Court that test identification parade strengthens trustworthiness of identification in the court. It was also held that holding of such parade is not obligatory and accused cannot insist upon it. Further, delay in holding it is not fatal, but it should be held quickly to eliminate possibility of accused being shown to witnesses.

21. Dana Yadav v. State of Bihar, (2002) 7 SCC 295 [LQ/SC/2002/955] it was held by the Hon'ble Apex Court that identification of the accused made in the Court, is substantive piece of evidence where the identification of accused in Test Identification Parade is though primary evidence but no substantive piece of evidence and the same can be used only to corroborate the identification of the accused by the witnesses in the Court.

22. In the case of Visveswaran v. State, (2003) 6 SCC 73 [LQ/SC/2003/555] it was held that notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation.

23. In the case of Shiv Murat Kol v. State of M.P.,it was held that where the question was raised whether evidence is permitted even in absence of formally proved by Executive Magistrate concerned The Apex Court has held that the fact when the Executive Magistrate concerned did not prove the test identification, does not make it inadmissible.

24. It is pertinent to note that identification parade belongs to the spot of investigation and there is no provision in the Cr.P.C. Or Indian Evidence act which oblige the investigation agency to hold or confer the right upon the accused to claim the Test Identification parade they did not constitute substantive evidence. Failure to held the test identification would not make inadmissible the evidence of identification in the Court.

25. In the present case, no doubt that identification of articles/ornaments was not proved by the concerned Executive Magistrate who conducted the test identification. The concerned Executive Magistrate was not produced by the prosecution in evidence.

26. PW-3 Bhagubai/complainant had identified the ornaments in the Court and in para No. 60 of her cross-examination she explained that why she was able to identify her articles/ornaments. It is pertinent to note that the testimony of PW-3 Bhagubai regarding identification of ornaments i.e. Article A, B, C & D is unchallenged. It is also noticeable that these articles had been seized on the instance of appellant within two days of the incident after a digging a dug and the learned trial court has discussed at length regarding trustworthiness/reliability of the evidence regarding seizure of ornament on the instance of appellant in para Nos. 6 to 19 of the impugned judgment.

27. In the considered opinion of this Court and considering the factum of injuries so caused, recovery of the ornaments of complainant from the appellant on his instance as well as considering the law laid down by apex Court in the case Shiv Murat Kol (supra), the learned Court below has not committed any error or illegality in convicting the appellant for the offence punishable under Section 394 r/w 397 of IPC. Hence, no case for interference is made out. The appeal is dismissed.

28. The order of the learned Court below regarding disposal of the seized property stands confirmed

29. A copy of this order be sent to the Court below concerned for information and necessary action.

30. Record be sent back immediately.