1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on: 07/10/2025 Judgment Delivered on: 04 /12/2025 CRA No. 1815 of 2024 1 - R. Ravi Kumar S/o R. Mohan Aged About 48 Years R/o Narayanpur, Post Pathra, P.S. Aaska, District Ganjam (Odisha) 2 - Rajkumar Das S/o Ramesh Das Aged About 22 Years R/o Purbokota, Post Kuntra, P.S. Korai, District Jajpur (Odisha) 3 - Shiba Rao S/o Ishwar Aged About 28 Years R/o Anchandhep, P.S. Surada, District Ganjam (Odisha) 4 - P. Ravi Kumar S/o P. Venkat Aged About 35 Years R/o Golapalli, P.S. Aaska, Post Khairiya, District Ganjam (Odisha) 5 - Mani Pradhan S/o Ganesh Pradhan Aged About 25 Years R/o Mundamal, Behind Dhal, Shahi Pani Tanki, Jajpur Road, P.S. And District Jajpur (Odisha) ... Appellant(s) versus 1 - State Of Chhattisgarh Through The Police Station Bodhghat, District Bastar Chhattisgarh ... Respondent(s) For Appellant (s) : Ms. Savita Tiwari, Advocate, and Mr. Siddharth Rathore, Advocate. For Respondent(s) : Mr. Akhilesh Kumar, Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. CAV Judgment 1. The present Criminal Appeal has been filed by the appellant under Section 415 (2) of the B.N.S.S. 2023, against the impugned judgment of conviction and sentence dated 06.09.2024 passed by Learned First Addl. Sessions SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.12.04 17:34:33 +0530 2 Judge, Bastar, Place- Jagdalpur in Sessions Case No. 114/2021, whereby the appellants have been convicted and sentenced in the following manner:- Conviction Sentence Under Section 341/34 of IPC (Appellant No. 1 to 5) SI for 01 month. Under Section 397 of IPC (Appellant No. 1 to 5) RI for 10 years. Under Section 307 of IPC (Appellant No. 1 to 5) RI for 07 years and fine amount of Rs. 1000/- and in default of payment of fine further 03 month additional RI Under Section 25-1(A) of Arms Act. (Appellant No. 1 to 4) RI for 07 years and fine amount of Rs. 1000/- and in default of payment of fine further 03 month additional RI Under Section 27(1) of Arms (Appellant No. 1 to 4) RI for 07 years and fine amount of Rs. 1000/- and in default of payment of fine further 03 month additional RI. 2. The case of the prosecution is that on 18.07.2021, in the night, the complainant Tilok @ Trilok Chand Shishodia (PW/3), after closing his shop Kumkum Jwellers situated at Sanjay Market, returning to his house along with Anita Kashyap (PW/14). They are having golden ornaments and cash amount of their shop. Near Kali Badi School, two persons came there in the motor cycle, restrained the complainant and started altercation with them. At that time, some other persons have also came and in order to commit loot, they made two round of gunshot fire on the complainant by which he received injuries on his left hand and right leg. The accused persons looted the golden ornaments and cash of Rs. 60,000/- and ran towards Jagdalpur. On the report made by the complainant, dehatinalsi (Ex-P/4) was recorded on 18.07.2021 itself. The complainant was sent to Maharani Hospital Jagdalpur for his treatment, where he was treated by (PW/20) Dr. Abhishek Bhargaw who found multiple injuries of gunshot fire over the body of the complainant and gave his report (Ex-P/32). The complainant was referred for X-Ray and CT-scan to the radiologist and orthopedic surgeon. On the basis 3 of dehatinalsi, the FIR (Ex-P/3) was registered against unknown persons for the offence under Sections 341, 307, 394, 397, 34 of IPC and Sections 25 and 27 of Arms Act. From the spot, fired cartridge, fired bullet, one Jupiter scooty, broken mirror of Jupiter scooty, red chilly powder, blood stain and plan soil have been seized vide seizure memo (Ex-P/1). From the complainant one jeans pant, one sando baniyan, one full shirt and one pink napkin have been seized vide seizure memo (Ex-P/2). Spot map (Ex-P/32) was prepared by the Police. The photography of the spot was also done and the photographs (Article 1 to 4) have been taken. The police has also seized the bedhead ticket of the complainant from Maharani Hospital Jagdalpur which are (Ex-P/38, P/389 and P/40) and X-Ray reports are (Ex-P/36 and Article 2 and 3). During the investigation, the memorandum statement of accused R. Ravi kumar was recorded on 18.08.2021 which is (Ex-P/6), the memorandum statement of accused Raj Kumar Das (Ex-P/7), memorandum statement of Shiva Rao (Ex-P/8), memorandum statement of P. Ravi Kumar (Ex-P/9), memorandum statement of Mani Pradhan (Ex-P/23) were recorded on 13.09.2021. Based on the memorandum statement of R.Ravi Kumar, 29 golden rings, 4 golden Jhalar, 2 golden locket, 5 golden mangalshutra, 18 golden leaves, 19 golden lockets, 11 pairs of golden ear-studs, 9 golden tops, 18 golden ball, 6 golden Dorla, 4 pairs of golden tops, total weight of 184.925 grams, a motor cycle and cash of Rs. 870/- has been seized from him vide seizure memo (Ex-P/17) and recovery panchanama (Ex-P/13) was also been prepared. From the accused P. Ravi Kumar, 12 golden rings, 2 golden locket, 12 pair of golden ear studs, 4 golden Dorla, 10 golden leaves, 3 pair of golden tops, 11 golden ball, 9 golden tops, 2 old golden chain, 16 golden locket, total weight 98.665 grams, one motor cycle and cash of Rs. 1120/- have been seized vide seizure memo (Ex-P/17) and recovery panchanama (Ex-P/7) was prepared. From the accused Shiva Rao, 11 golden rings, 14 golden locket, 2 golden mangalsutra locket, 5 golden Dorla, 4 2 pairs of golden tops, 12 golden leaves, 18 pair of golden earring, 39 golden balls, 12 golden tops, 13 golden balls and one common mangalshutra, total weight 83.410 grams, cash of Rs. 1100/- and one pistol with magzin and 6 live cartridges have been seized from him vide seizure memo (Ex-P/16) and recovery panchanama (Ex-P/11) was prepared. From the accused Rajkumar Das, 18 golden rings, 2 golden mangalsutra locket, 12 golden leaves, 4 golden Dorla, 13 pair of golden earring, 10 golden tops, 19 golden lockets, 16 golden balls, 4 pair of golden tops, 13 golden nose rings, 2 golden nose ring big size, one golden ingot, one golden chain and two golden plates, total weight of 101.35 grams and cash of Rs. 980/- has been seized vide seizure memo (Ex-P/50) and recovery panchanama (Ex-P/12) was prepared. From the accused Mani Pradhan, one motor cycle and its registration papers, 11 golden rings, 7 pairs of golden earstuds, 9 golden locket, 11 golden leaves, 16 golden tops, 5 golden pandel, one golden chain, 4 chip nackless leave, 2 golden ball, total weight 83.04 grams has been seized from him vide seizure memo (Ex-P/35) and recovery panchanama (Ex-P/24) was prepared. Notice under Section 91 of Cr.P.C. was also given to the accused persons which are (Ex-P/41 to 44) but the accused persons could not produce any Document with respect to the possession of seized ornaments and seized pistol. The test identification parade of the accused persons were conducted by the executive magistrate, Jagdalpur at Veer Savarkar Bhawan on 19.08.2021, where the complainant has duly identified the accused Raj Kumar Das, Shiva Rao and P. Ravi Kumar and their test identification parade memo (Ex-P/10, P/11 and P/12) have been prepared. The test identification of the ornaments seized from the accused persons have also been conducted by the Executive Magistrate at Veer Sawarkar Bhawan where the complainant identified his ornaments and identification memo (Ex-P/5, P/6,P/7, P/8 and P/9) have been prepared. During the investigation, the valuation and verification of the golden ornaments were also done by (PW/17) who issued 5 the certificates (Ex-P/33, P/34, P/35, P/47 and P/48). The seized cloths of the complainant, article seized from the spot were sent for its chemical examination to regional FSL, Jagdalpur and State FSL, Raipur. From where, the FSL Report (Ex-C/1 and C/2) have been received. The seized pistol was also sent for its examination to reserved Police force Jagdapur from where report (Ex-P/53) was received and its was referred for its examination to FSL, Raipur. On being request made by Superintendent of Police for permission to prosecute the accused persons under the Arms Act, the District Magistrate, Bastar has given permission vide its order (Ex-P/31). The statement under Section 161 of Cr.P.C. of the witnesses have been recorded and after completion of usual investigation, charge-sheet was filed against the accused persons for the offence under Section 395, 394, 397, 307, 341 and 34 of IPC and Section 25, 27 of Arms Act before the learned Chief Judicial Magistrate, Jagdalpur. 3. The case was committed to the court of learned Sessions Judge, Bastar from where the same has been transferred to the learned trial Court for its trial. The learned trial Court has framed charges against the accused persons for the offences under Sections 395, 394, 397, 307, 341 read with Section 34 of IPC and Section 25 and 27 of Arms Act. The accused persons denied the charges and claimed trial. 4. In order to prove the charges against the accused persons, the prosecution has examined as many as 21 witnesses. Statement of the accused persons under Section 313 of CrPC have also been recorded in which they denied the circumstances that appears against them, pleaded innocence and have submitted that they have been falsely implicated in the offence. 5. After appreciation of oral as well as Documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the accused persons as mentioned in the earlier part of this Judgment, hence this appeal. 6 6. Ms. Savita Tiwari, learned counsel appearing for the appellants No. 3 and 5 would submit that the prosecution has failed to prove the offences against the appellants beyond reasonable doubt. There are material omission and contradictions against the prosecution witnesses which cannot be made basis to convict them. In the dehatinalsi (Ex-P/4) the complainant discloses the marka and seal of KKJ,OM,MS and AM on the ornaments, but, the ornaments seized from the accused persons and the ornaments produced for its identification, there was no marka or seal which itself is sufficient to create doubt on the seizure of the looted articles from the accused persons. She would further submit that PW/17 who verified the seized ornaments have admitted that there was no marka in the ornaments produced before him. She would further submit that there is material discrepancy in the test identification parade of the accused persons as there is no mention of any physic of the accused persons and the procedure of conducting the test identification parade have not been followed. It is also submitted by her that in the seizure memo of pistol (Ex-P/5), the said pistol was “made in India” but in the FSL report, the pistol of “made in USA” has been examined which prima facie sufficient to hold that there is material discrepancies in the investigation and the case of the prosecution is tainted. Both these grounds i.e. identification of the accused persons and identification of the golden ornaments allegedly seized from the accused persons which are the property looted from the complainant have not been established by the prosecution as per its requirement. It is also submitted that in the dehatinalsi the complainant has disclosed the weight of the golden ornaments about 300 grams whereas the golden ornaments seized from the respective accused persons are much more than the weight shown in the FIR, thus, the case of the prosecution is apparently false and fabricated only to implicate the accused persons in the offence. 7 7. Mr. Siddharth Rathore, learned counsel appearing for the appellant no. 1, 2 and 4, in addition to the submission made by learned counsel appearing for the appellant No. 3 and 5 would submit that the prosecution has failed to prove that the recovered ornaments were the looted property from the complainant. No proper procedure to conduct the identification of the ornaments and the accused persons have been followed. The accused persons were seen by the witnesses before the test identification parade and therefore, the test identification parade looses its efficacy. The witnesses have admitted that there was no marka on the golden ornaments which have been recovered from the accused persons. There are material discrepancies in the prosecution witnesses and uncorroborated evidence cannot be made basis for conviction of the accused persons. The complainant himself was unable to give any specific description of his ornaments, therefore, these is no sufficient evidence available on record to convict the appellants in the offence in question and their conviction and sentences are liable to be set aside. 8. Per contra, learned counsel appearing for the State opposes the submissions made by learned counsel for the respective appellants and submitted that the prosecution has prove its case beyond reasonable doubt. But for minor omission and contradictions, the evidence of the prosecution witnesses are corroborated with each other and supported the prosecution case. there may be some discrepancies in their evidences but the same are trivial in nature and does not affect the prosecutions case. the accused persons as well as the golden ornaments seized from them have been duly identified by the complainant which shows the involvement of the accused persons in the offence. While committing the offence of loot the accused persons caused grievous injury by pistol which is deadly weapon by which the complainant received grievous injury on his body. He would further submit that at the time of incident the complainant was returning back from his shop and was in 8 possession of golden ornaments of various kinds and various weight and he mentioned the approximate weight of golden ornaments in the dehatinalsi. The accused persons have failed to give any explanation or Document with respect to possession of the golden ornaments and have not submitted any Document in reply to the notice under Section 91 of the Cr.P.C. The complainant and the witnesses have duly identified the accused persons and the ornaments which was conducted by the Executive Magistrate in accordance with the law. There are sufficient and overwhelming evidence against the accused persons to hold their conviction for the alleged offence and therefore, their appeal is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the record with utmost circumspection. 10. The main contention of the learned counsel for the respective appellants are that there are material discrepancies in the evidence of prosecution witnesses and identification of the accused persons as well as ornaments. There are two types of identification witnesses produced in the case i.e. (1) TIP conducted by the Executive Magistrate, who prepared the TIP memo (Ex-P/10 to P/12) and (2) the Dock identification of the accused persons before the Court. With respect to the Dock identification and test identification parade conducted by the prosecution, the Hon’ble Supreme Court has clarified the law in the matter of “Sheo Shankar Singh Vs. State of Jharkhand & Another” reported in 2011 (3) SCC 654 and in Para 46 to 50, it has been held that:- 46. It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the court who claims to identify the accused persons otherwise unknown to 9 him. Test identification parades, therefore, remain in the realm of investigation. 47. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the court even without insisting on corroboration. 48. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a reference to the following observations made by this Court in Malkhansingh v. State of MP (SCC pp. 751-52, para 7) “7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. 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 10 whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn, Vaikuntam Chandrappa v. State of A.P., Budhsen v. State of U.P. and Rameshwar Singh . State of J&K.)” 49. We may also refer to the decision of this Court in Pramod Mandal v. State of Bihar where this Court observed: (SCC p. 158, para 20) "20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly. there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only 11 one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification." 50. The decision of this Court in Malkhansingh case and Aqeel Ahmad v. State of U.P. adopt a similar line of reasoning. 11. In the matter of “Prakash Vs. State of Karnataka”, reported in 2014 (12) SCC 133, in para 15 and 16, the Hon’ble Supreme Court has held that:- 15. An identification parade is not mandatory nor can it be claimed by the suspect as a matter of right. The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable unless the suspect has been seen by the witness or victim for some length of time. In Malkhansingh v. State of M.P. it was held: (SCC pp. 751-52, para 7) "7.... The identification parades belong to the stage of investigation, a and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact." 16. However, if the suspect is known to the witness or victim or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media no identification evidence is necessary. Even so, the failure of a victim or a witness to identify a suspect is not always fatal to the case of the 12 prosecution. In Visveswaran v. State it was held: (SCC p. 78, para 11) "11……... The identification of the accused either in a test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence." 12. In the matter of “State of Rajasthan Vs. Daud Khan” reported in 2016 (2) SCC 607, in Para 42 to 46, the Hon’ble Supreme Court has held that:- 42. It was contended by Daud Khan that the three chance witnesses, PW 7 Mahabir Singh, PW 23 Narender Singh and PW 24 Rishi Raj Shekhawat were all from out of town. As such, they could not have identified Daud Khan or Javed. It was further contended that no test identification parade (for short "TIP") was conducted and reliance could not have been placed only on their dock identification. 43. No such argument was raised by Daud Khan either in the trial court or in the High Court and we see no reason to permit such an argument being raised at this stage. 44. That apart, it was recently held in Ashok Debbarma v. State of Tripura that while the evidence of identification of an accused at a trial is admissible as a substantive piece of evidence, it would depend on the facts of a given case whether or not such a piece of evidence could be relied upon as the sole basis for conviction of an accused. It was held that if the witnesses are trustworthy and reliable, the mere fact that no TIP was conducted would not, by itself, f be a reason for discarding the evidence of those witnesses. In arriving at this conclusion, this Court relied upon a series of decisions. Earlier, a similar view was expressed in Manu Sharma v. State (NCT of Delhi). 13 45. In any event, there were two other witnesses to the shooting, namely, PW 11 Narendra Kumawat and PW 19 Suraj Mal who were local residents and knew Nand Singh and Daud Khan and could easily identify them. 46. Five witnesses have testified to the events that took place at Bathra Telecom on the night of 19-6-2004. We see no reason to disbelieve any of them,particularly since they have all given a consistent statement of the events. There are some minor discrepancies, which are bound to be there, such as the distance between the gun and Nand Singh but these do not take away from the substance of the case of the prosecution nor do they impinge on the credibility of the witnesses. 13. Further in the matter of “Mukesh & Another Vs. State (NCT of Delhi) & Others” reported in 2017 (6) SCC 1, in para 143 to 147, the Hon’ble Supreme Court has held that:- 143. In Santokh Singh v. Izhar Hussaints, it has been observed that the identification can only be used as corroborative of the statement in court. 144. In Malkhansingh v. State of M.P., it has been held thus: (SCC pp. 751-52, para 7) "7... The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact…..” And again: (SCC p. 755, para 16) "16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the 14 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...." 145. In this context, reference to a passage from Visveswaran v. State67 would be apt. It is as follows: (SCC p. 78. para 11) "11.... The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence.” 146. In Manu Sharma v. State (NCT of Delhi)68, the Court, after referring to Munshi Singh Gautam v. State of M.P.69, Harbajan Singh v. State of J&K70 and Malkhansingh66, came to hold that the proposition of law is quite clear that even if there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive. 147. In the case at hand, the informant, apart from identifying the accused who had made themselves available in the TIP, has also identified all of them in court. On a careful scrutiny of the evidence on record, we are of the convinced opinion that it deserves acceptance. Therefore, we hold that TIP is not dented. 14. In the matter of “Suraj Pal Vs. State of Haryana” and other connected matters reported in 1995 (2) SCC 64, in para 14, the Hon’ble Supreme Court has held that:- 14. Before dealing with the various contentions advanced by the learned counsel for the appellants as referred to above, we shall first state the object, purpose and importance of the test identification parade. It may be pointed out that the holding of identification parades has been in vogue since long in the past with a view to determine whether an unknown person accused of an offence is really the culprit or not, to be identified as such by 15 those who claimed to be the eyewitnesses of the occurrence so that they would be able to identify the culprit if produced before them by recalling the impressions of his features left on their mind. That being so, in the very nature of things, the identification parade in such cases serves a dual purpose. It enables the investigating agency to ascertain the correctness or otherwise of the claim of those witnesses who claimed to have seen the offender of the crime as well as their capacity to identify him and on the other hand it saves the suspect from the sudden risk of being identified in the dock by such witnesses during - the course of the trial. This practice of test identification as a mode of identifying an unknown person charged of an offence is an age- old method and it has worked well for the past several decades as a satisfactory mode and a well-founded method of criminal jurisprudence. It may also be noted that the substantive evidence of identifying witness is his evidence made in the court but in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident, in that event identification of the accused at the earliest possible opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of his memory fading away by the time he is examined in the court after some lapse of time. 15. In the matter of “Rabindra Kumar Pal @ Dara Singh Vs. Republic of India” reported in 2011 (2) SCC 490, in para 40 to 50, the Hon’ble Supreme Court has held that:- 40. It is relevant to note that the incident took place in the midnight of 22-1-1999/23-1-1999. Prior to that, a number of investigating officers had visited the village of occurrence. Statements of most of the witnesses were recorded by PW 55, an officer of CBI. In the statements recorded by various IOs, particularly the local police and State CID, these eyewitnesses except few claim to have identified any of the miscreants involved in the incident. As rightly observed by the High Court, for a long number of days, many of these eyewitnesses never came forward before the IOs and the police personnel visiting the village from time to time claiming that they had seen the occurrence. In these circumstances, no importance need to be attached on the 16 testimony of these eyewitnesses about their identification of the appellants other than Dara Singh (A-1) and Mahendra Hembram (A-3) before the trial court for the first time without corroboration by previous TIP held by the Magistrate in accordance with the procedure established. 41. It is a well-settled principle that in the absence of any independent corroboration like TIP held by the Judicial Magistrate, the evidence of eyewitnesses as to the identification of the appellant-accused for the first time before the trial court generally cannot be accepted. As explained in Manu Sharma v. State (NCT of Delhi), that if the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence, which are lacking in the case on hand except for A-1 and A-3. 42. In the same manner, showing photographs of the miscreants and identification for the first time in the trial court without being corroborated by TIP held before a Magistrate or without any other material may not be helpful to the prosecution case. To put it clearly, the evidence of witness given in the court as to the identification may be accepted only if he identified the same persons in a previously held TIP in the jail. 43. It is true that absence of TIP may not be fatal to the prosecution. In the case on hand, A-1 and A-3 were identified and also corroborated by the evidence of slogans given in his name and each one of the witnesses asserted the said aspect insofar as they are concerned. We have also adverted to the fact that none of these witnesses named the offenders in their statements except few recorded by IOs in the course of investigation. Though an explanation was offered that out of fear they did not name the offenders, the fact remains, on the next day of the incident, the Executive Magistrate and top-level police officers were camping in the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable 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 TIP. Though some of them 17 were identified by the photographs except A-1 and A-3, no other corroborative material was shown by the prosecution. 44. Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. 45. The learned Additional Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of this Court in Manu Sharma. It was argued in that case that PW 2, Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence. 46. In SCC para 254, this Court held: (Manu Sharma case, SCC p. 96) "254. Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the 10 conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation." 47. It was further held: (Manu Sharma care, SCC pp. 98-99, para 256) 18 “256……. ‘7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of a Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act As a general rule, the substantive evidence of a witness is the statement made in court. 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. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.’*" It was further held that: (Manu Sharma case¹, SCC p. 99, para 259) "259….. The photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath." 19 48. In Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau the following conclusion is relevant: (SCC p. 143, para 12) "12. In the present case prosecution does not say that they would rest with the identification made by Mr Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness g correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time." 49. In Dana Yadav v. State of Bihar, SCC para 38, the following conclusion is relevant: (SCC p. 316) "(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law." 50. It is clear that identification of accused persons by a witness in the dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible. 20 16. With respect to Dock identification parade, its evidentiary value has been considered by the Hon’ble Supreme Court in the matter of “Dana yadav @ Dahu & Others Vs. State of Bihar” reported in 2002 (7) SCC 295, in Para- 6, the Hon’ble Supreme Court has held that “although, the Dock identification is inherently of a weak character, it requires corroboration.” 17. Learned counsel for the respective appellants drawn attention to para -29 of the impugned judgment that the test identification parade conducted by the Executive Magistrate is tainted for the reason that it was conducted in presence of the police, however, the Dock identification of the accused persons can be considered in view of the corroborated evidence available on record. 18. The complainant PW-3 has identified the accused persons before the Court. He stated that on the date of incident, when he was going to his house after closing of his shop, on the way, the accused persons committed the offence. He was running jewelry shop in the name of Kukum Jewellers. He maintained the ledger of his ornaments as well as account of the ornaments which were given by the customers either for its repairing or for its sale purchase. Some of the ornaments he kept in locker. At the time of closing of his shop and some of the ornaments he has taken with him to his house. He also exchanged the ornaments during course of his business transaction. The ornaments which they purchased from outside, it bears marka and on that basis its purity was being counted. He was having knowledge as to what quantity of ornaments he was having and he has every details of his business. He admitted that since he was injured in the incident, he has informed the police that the weight of looted ornaments is about 300gm. Subsequently, he came to know that it was about 600gm and then he informed the police about the weight of looted ornaments was about 600gm. At the time of recording evidence he could not tell as to what where the marka in the ornaments but he explained that the ornaments were mixed and 21 some of them having marka and some of them were not. He could not tell as to how much ornaments have the marka and how much are not. He vehemently stated that he could identify the ornaments by its design also. The ornaments which were given to him in interim custody were having sealed. He further stated that at the time of incident though there was no street light but sufficient light was coming from the shop and the houses situated in the area. He further stated that the gun shot fire was made from the distance of 2½ fit. He could not lodged report immediately because he was injured and he was in need of treatment. He further stated that near Jamal Mill he met with Police persons and he informed the incident to them. 19. PW-14, Anita Kashyap is the witness who accompanied the complainant at the time of incident. She too have identified the accused Mani Pradhan. She stated in her evidence that when she was going along with the complainant Trilok Chand to her house, near Kalibari School, the accused persons came there and committed the offence. She ran for help but no one was ready to help her and when she came back to the place of incident, she saw that there was scuffling going on between the complainant and the accused persons. Blood was coming out from the head of the complainant and then the accused persons fled away from the spot. She take help through a bye- passer and sent the competent to hospital and informed the family members of Trilok Chand. At this stage this witness has turned hostile and not supported the prosecution case and could not identify the other accused persons. 20. So far as, the seizure of ornaments from the accused persons are concerned, on the basis of memorandum statement of the accused persons, the number of golden ornaments have been seized from them as has been mentioned in the earlier part of this judgment. Huge quantity of golden ornaments were seized from the respective accused persons and the investigating officer PW-19 Dhananjay Sinha has duly proved the 22 memorandum and seizure from the accused persons. The learned trial Court after examining the evidence of the memorandum and seizure witnesses, (PW-8) Raghuveer Dongare, Hitesh Bhojwani (PW-7), Kaushif Khan (PW-12) and Baidhnath Patel (PW-5) and also (PW-19) Dhananjay Singh the investigating officer, held that the evidence of the investigating officer cannot be disbelieved. 21. In the matter Umendra and others Vs. State of C.G. reported in 2015 SCC Online CG 1825, it has been held that in para 16 and 17:- 16. Even though the witnesses of seizure Mahendra Kumar Ramkete (PW/1) and Amrit Lal (PW/2) have not supported the case of the prosecution, the recovery of looted articles is proved by testimony of Mukesh Khare (PW/12), SDO, who has clearly deposed that he had seized gold ornaments from the appellants Dilip Sahu as well as appellant Umed Kumar Pathak. In his entire testimony, there is nothing to doubt as to why he would make a false seizure against the two accused. It is well settled that even where the recovery is not supported by seizure witnesses, in appropriate case, the seizure proved by the policy officer who carried out such seizure, can be acted upon. It has been examined herein above that two appellants were identified by the victim, therefore, this identification itself is a corroborative circumstance in support of seizure of gold ornament from the appellants. 17. The gold ornaments which have been seized were identified by Anjana Pathaniya (PW/10) in the present of G.R. Mahipal (PW/8), the executive Magistrate, who has stated that in his presence, seized jewelries were placed before Anjana Pathaniya and she had recognized and identified her gold ornaments. Dinesh Jethwa (PW/5) has stated in his evidence that in his presence, Anjana Pathaniya had identified her jewelries and he put his signature in the identification memo (Ex-P/22). 22. The seized ornaments from the accused persons were put for its identification parade which was conducted by the Executive Magistrate and 23 the Document Ex.P/49 was issued by the investigating officer to conduct the identification of the ornaments seized from the accused persons. 23. PW-15, Madhukar Sirmore is the Executive Magistrate, who conducted the test identification parade of the ornaments at Veer Sawarkar Bhawan, Jagdalpur and prepared the identification memo Ex-P/5, Ex-P/6, Ex-P/7, Ex- P/8 and Ex-P/9 in presence of the witnesses. In cross-examination, he admitted that the ornaments which were mentioned in the Document Ex.P/5 to Ex.P/8 were given by the police and the other ornaments were given by the Police to mix it at the time of identification. There was no marka either in the ornaments put for its identification or the ornaments which were given for mixing it. He admitted that there were some difference in the ornaments. He denied the suggestion that the identification of the ornaments were conducted in the Police Station and in absence of any witnesses. From the evidence of this witness, the identification of the ornaments seized from the accused persons were identified by the complainant that it was the looted ornaments and the identification of the ornaments remain unrebutted. 24. The submission of learned counsel appearing for the respective appellants that in the Dehati Nalishi (Ex.P/4) and FIR (Ex.P/3), the complainant has stated that there was a marka in the looted articles, however, the ornaments which were produced for identification, there was no marka and therefore, the ornaments seized from the accused persons are not the ornaments allegedly looted from the complainant. The complainant PW-3 has explained that some of the ornaments were having marka and some was not. He would also stated he could identify the ornaments by its design. The investigating officer PW-19, have also admitted in Para -44 of his cross-examination that in the suggestion given by the defence that there was no marka in the ornaments seized through the seizure memo Ex.P/10 to Ex.P/14. Even the ornaments which were produced for identification and the ornaments which were brought for mixing, were not having any specific marka, yet the 24 complainant PW-3 has identified his ornaments. Further the difference in weight of the ornaments cannot be given much weightage for the reason that exact weight was not disclosed by the complainant at the time of lodging of the report. At that time he was injured and suffered by the incident of loot. His mental and physical condition was not sound at that time so that he cannot disclosed he exact weight or any description of his ornaments particularly when the huge quantity of ornaments of his shop carrying by him. When he realized the weight of his ornaments, he informed the police about the approximate weight of looted ornaments. 25. With respect to the seizure of pistol and live cartridges from the accused Shiba Rao is concerned. The witness (PW/19) Dhananjay, who was the investigating officer has proved the memorandum statement of the accused Shiba Rao (Ex-P/8) and based on his memorandum statement, the seizure panchanama (Ex-P/11) and seizure memo (Ex-P/16) was prepared in presence of the witnesses. Although, in the seizure panchanama (Ex-P/11) and seizure memo (Ex-P/16), it has been mentioned that in the body of the pistol, it is embossed as “7.65mm, Made India, only army supply” which was sent for its examination to armorer along with the memo (Ex-P/52). The armorer had given its report (Ex- P/53) and as per the armorer’s report, the said pistol was manufactured in India and it was in working condition. The armorer has referred for firing test which was to be conducted from State FSL, Raipur. He resealed the said weapon and return it to the Station House Officer, P.S. Bodhghat. 26. PW/21, Smt Sikha Tiwari, who is the Joint Director of State FSL, Raipur has stated in her evidence that she received the ammunition for its examination on 22.10.2021, which was sealed by the seal of armorer and when she opened the packet, one country made pistol was there in the packet and it was described that it was seized from accused Shiba Rao on 18.08.2021 which was found in packet-A. In Packet- B, three live cartridges of 17 mm 25 caliber were found. In packet-C one fired cartridge was found and in packet- D, one fired cartridge was found and in packet- E one full shirt and one full paint was found. She further stated that while examining the said ammunition/ country made pistol, she found that it was embossed with Made USA and only army supply having the embossing of figure of a bird. The said pistol was found in active condition. Her report is (Ex-C/2). The defence has not put any question to this witness with respect to marking found in the said pistol. The defence also could not ask any question in the cross-examination of the investigating officer (PW/19) Dhananjay Sinha, as to when in the seizure memo, the pistol was found embossed in Made India, then under what condition the pistol made in USA were sent for examination to regional FSL, Raipur and also does not put any question as to the pistol seized from the accused Shiba was not put for its examination and seizure of the Ammunition from Shiba is suspicious. The only suggestion given by the defence that the investigating officer had sent the old pistol for its examination which was lying in the Police Station and the other details of the said pistol are similar in the details mentioned in the document (Ex-P/16) and the details found by (PW/21) while its examination. The defence has not challenged and has not put any question from the investigating officer with respect to any discrepancies in the seizure of the said pistol from accused Shiba and also found examination report (Ex-C/2) given by the witness (PW/21). The accused cannot benefited that the same pistol was not sent for its examination. 27. In the present case, there are ample evidence against the accused persons that on 18.07.2021, in the night when the complainant returning back to his house along with the golden and silver ornaments, after closing his shop, on the way near Kalibadi school, the accused persons wrongfully restrained him and looted his golden ornaments and seriously injured him by gun shot fire. The accused persons were duly identified by the complainant and a huge 26 quantity of golden ornaments have been seized and from the accused Shiba, the pistol has also been seized by which gun shot fire was made. The accused persons have been duly identified during the court proceeding which corroborated the ornaments seized from the accused persons which were also identified by the complainant in test identification conducted by the Executive Magistrate. The injuries found on the body of the complainant has also been proved by the doctor (PW/18) Dr. Manish Kumar Meshram and (PW/2) Dr. Abhishek Bhargav. There may be some minor omission and contradictions in the evidence of prosecution witnesses but in the opinion of this Court, those are trivial and does not affect the credibility of the witnesses. The involvement of the accused persons in the alleged offence of dacoity and attempt to murder of the complainant and also causing grievous injuries by ammunition has been found proved by the learned trial Court in which this court does not find any infirmity or perversity, accordingly, the appeal filed by the appellants are liable to be and hereby dismissed. 28. The appellants are reported to be in jail since 18.08.2021. They shall serve the entire sentence awarded by the learned trial Court. 29. Registry is directed to sent a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 30. Let a copy of this judgment and the original records be transmitted to the trial Court forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge sagrika