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PETITIONER: RAMESHWAR SINGH

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR

DATE OF JUDGMENT07/09/1971

BENCH: DUA, I.D. BENCH: DUA, I.D. SHELAT, J.M. ROY, SUBIMAL CHANDRA

CITATION:  1972 AIR  102            1972 SCR  (1) 627  1971 SCC  (2) 715  CITATOR INFO :  RF         1988 SC 345  (10)

ACT: Criminal    Trial-Accused   not   known   to    witnesses-No identification  parade or description of accused in  F.I.R.- Weight of Identification in Court. Code of Criminal Procedure (Act 5 of 1898), ss. 161 and  162 Statements to police during investigation-Use of.

HEADNOTE: The  appeallant  was convicted of the offence of  murder  by shooting  and the High Court confirmed the’  conviction  and the sentence of death. In appeal to this Court, HELD : The conviction and the sentence should be set aside. (1)The  substantive evidence of a witness is his  evidence in  the  trial court.  But then the accused  person  is  not previously known to a witness when the identification of the accused by the witness soon after the former’s arrest is  of vital  importance because it furnishes to the  investigating agency an assurance that the investigation is proceeding  on right lines, in addition to furnishing corroboration of  his own evidence in court. [631 A-C] In  the. present case, the evidence of the witness who  gave the F.I.Rshowed that he did not give any description of  the person who was alleged :to have fired the shots.  Nor did he state  in the F.I.R. that he knew the appellant  previously. There  was  no  evidence  to  show  that  the  witness   had identified the accused in the Committing Magistrate’s Court. Therefore,  his identification in the Sessions Court of  the accused  without  any  previous  identification  at  a  test parade,  and  without  any  description  in  the  F.L.R.  to corroborate  it, is far too slender a piece of  evidence  to support the’ appellant’s conviction. [631 F; 633 B-E; 635 D, F] (2)Some  of.the  witnesses  had stated in  their  evidence that they had heard the name of the accused being called but neither this fact nor the name of the accused was  mentioned in  the F.I.R. The High Court was in error in  taking  into- consideration the contents of the statements recorded  under s.  161,  Cr.P’.C.,  of the various  witnesses,  during  the

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course   of  .investigation,  km  the  purpose  of   finding corroboration of their statements. in court that the name of the accused was disclosed to the police.  If. the  accused’s name  was really disclosed soon after the  occurrence  steps would  have been taken by the investigating  authorities  to arrest him immediately but no such action was in fact taken. [634 D; 636 C-D]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  3  of 1971. Appeal  by special leave from the judgment and  order  dated October  30,  1970 of the Jammu-and Kashmir  High  Court  in Criminal Appeal No. .12 of .1969 and Criminal Reference  No. 10 of 1969- 628 Ram  Asray Misra, Risi Ram, O. P. Rana and R. Bana, for  the appellant. D. Mukherjee and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Dua,  J.  Only  two points were argued at the  bar  in  this appeal  by  special  leave  because if  we  agree  with  the appellant’s learned counsel on these points then the  appeal must  succeed ,and the appellant must be  acquitted  without going  into  the other points relating  to  the  appellant’s guilt  intended to be raised on his behalf by  his  counsel. The  relevant facts of the ease necessary  for  appreciating the  two  important points relating to the legality  of  the appellant’s conviction may briefly be stated On the morning of October 7, 1967 a football match was being played  at  the Srinagar Stadium between  the  Kashmir  Uni- versity  and  the  Punjab  University  teams.   The  Kashmir University  team  (hereafter called the home team)  was  the first to secure one goal against the Punjab University  team (hereinafter called the visiting team).  The players of  the home  team were naturally ,cheered by the  spectators,  when they  scored  the  first goal.  After  ;a  few  minutes  the visiting team equalised the score and a little later secured another  goal against the home team.  This in  turn  brought cheers   and  applause  for  the  visiting  team  from   the spectators.   It appears that some of the more  enthusiastic spectators  rushed  to the football ground and are  said  to have  made some provocative gestures towards the players  of the home team.  This apparently annoyed not only the players of  the  home team but also their sympathisers  amongst  the spectators   and   a  clash  between  the  rival   sets   of sympathisers  of  the  two  teams  amongst  the   spectators followed.  As usually-happens on such occasions stones  were thrown  at each other by the two rival groups.  These  rival groups are stated to be those of Kashmir is on the one  side and Punjab is on the other.  The headquarters of the  P.A.C. (Police Armed Constabulary) are also stated to be located in the  Stadium and some members of that force were present  at the match.  The young men of the P.A.C. came to the spot and with  their  dandas put the people to flight.   Up  to  this stage  there seems to be no controversy.  According  to  the prosecution  case as stated by P. W. Abdul Gani  Sheikh,  on April  24,  1969 when the people bad left  the  Stadium  the appellant,   to  use  the  words  of  the  witness  in   his examination-in-chief.               "....was  seen  descending the  bund,  in  the               direction  of  the  stadium  cycle-shed.   The               accused  carried a gun in the hand.  He had  a

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             helmet on the bead.               629               Getting  down the bund, the accused  got  near               the cycle shed.  There he did something for  a               minute  or  a half.  Forthwith he  opened  the               door  of  the cycle-shed and  came  out.   The               accused  was facing the Militia wall.   As  he               turned  his face that side, he fired  a  shot.               The  shot  hit the Militia wall.  I was  at  a               distance of nearly 50 yards from the  accused.               After firing the shot, the accused came on the               main  road  which leads to the  aerodrome.   A               zamindar was going on it.  At the sight of the               accused he stopped.  The accused fired a  shot               at him.  He fell along the drain adjoining the               Militia  wall.  Thereafter the accused  turned               to  the right side.  There, on the other  side               of  the road, in the direction of Hazuri  Bagh               Maidan,  a  young man in suit  and  boots  was               going  there.  At the sight of the accused  he               too stopped.  There was exchange of some  talk               between  him and the accused.  I did not  hear               what he spoke.  However, I saw that man facing               the  accused,  with. folded hands.   Then  the               accused  fired  a shot at him.  He  fell  down               immediately  on receiving the shot.  Then  the               accused again turned towards that Zamindar, at               whom  he had fired the first shot.   He  fired               another shot at him.  Thereafter, the  accused               turned towards a boy, aged 15 or 16 years, who               was going towards Mira Kadal.  He fired a shot               at  him.   The boy did not fall down,  may  he               took to his heels.  He ran in the direction of               the  tonga-stand  on the side of  Mira  Kadal.               Thereafter he fired again at the Young man  in               suit and boots, at whom he had already fired a               shot.  Thereafter he fired another shot at the               Zamindar.   The  accused fired more  shots  as               well after that.  In the meantime, three  more               men  appeared there.  They were the  accused’s               men.  Besides. a sardar of the K. A. P..  also               appeared  at the spot.  They got hold  of  the               accused and took him inside.  They were trying               to snatch the rifle from the accused.  Another               person  held  the rifle and  the  accused  was               taken inside the stadium.  I made a report  of               this occurrence at police station Sher  Ghari,               which  may be at a distance of 150 yards  from               the  place  of  occurrence.  I  made  an  oral               report.   I  have heard the  contents  of  the               first   information  report.   The  same   are               correct.   The police recorded what I  stated.               I affixed my signatures to it.               It  is correct. (Note : It is marked Ext.   P/               I)" The  learned  Sessions Judge, Srinagar, Qazi  Mirajudin,  in whose  court the appellant was tried for offences under  ss. 302  and  307, I.P.C. convicted him for  both  the  offences imposing 630 the sentence of death under s. 302 and rigorous imprisonment for  five  years under S. 307, I.P.C. Charges under  S.  302 related to the death of Ghulam Mohd.  Fuchey who died in the hospital on the day of the occurrence and also to the  death of  Aziz Teli who died two days later on October 9, 1967  at

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5-50  p.m.  The charge under S. 307, I.P.C; related  to  the injuries caused to P.    W. Abdul Ghani Sheikh. On  appeal,  the  High Court which had before  it  also  the sidered  it  necessary to examine the ballistic  expert  for elucidating  certain  points.   That  Court  permitted   the appellant  also to examine another ballistic expert  Siyaram Gupta  by name and also Shri Ratan Sahgal and C.  L.  Wasan, Commandant  (U.P.  P.A.C.). ,C. L. Wasan was allowed  to  be examined even though he had already been examined earlier as a prosecution witness.  It may also be stated here that  the appellant wanted to produce some more witnesses in  defence, but  permission to do so was declined by the High Court  and the appellant’s Counsel before us raised a grievance on this score  as-  well.   The High Court,  after  considering  the evidence, dismissed the appeal and confirmed the sentence of death.   An  oral prayer for certificate to appeal  to  this Court was declined. On behalf of the appellant it is not disputed before us that somebody did resort to firing during the disturbance in  the course  of  the football match on October 7,  1967  and  two persons were actually killed as a result thereof.  The first question raised before us in- this connection is that  there is no legal evidence that it was the appellant who fired the fatal  and other shots in question on this  occasion.   This indeed  is the principal point urged.  And the second  point which arises out of discussion on this point relates to  the scope  and  effect  of ss. 161 and 162, Cr.   P.C.  and  the admissibility at the trial of the statements made by some of ’the  witnesses to the police during investigation under  S. 161, Cr.  P.C. The High Court appears to have relied on such statements  in their entirety for seeking  corroboration  of the statement made by the prosecution witnesses in court and ultimately  for  the purpose of sustaining  the  appellant’s conviction.    Incidentally,   the  manner  in   which   the investigating  agency  conducted the investigation  of  this case also came up for serious criticism at the hands of  the appellant’s  counsel, it being urged that the  investigation was  not  objective and impartial but smacked  of  prejudice against  the  appellant  and was,  therefore,  unfair.   The investigation  was  however, sought to be justified  by  the counsel  for the State.  The evidence of  identification  of the appellant on which the courts below placed reliance  for convicting the appellant has to be with great care in  order to see if such evidence is 631 legally  admissible  and on the facts and  circumstances  of this case this scrutiny must, in our opinion, include within its  purview  the manner in which the investigation  of  the alleged offences was conducted by the authorities concerned. Before dealing with the evidence relating to  identification of  the appellant it may be remembered that the  substantive evidence of a witness is his evidence in court but when  the accused  person  is  not previously  known  to  the  witness concerned then identification of the accused by the  witness soon  after  the  former’s arrest  is  of  vital  importance because   it  furnishes  to  the  investigating  agency   an assurance  that  the investigation is  proceeding  on  right lines  in  addition  to  furnishing  corroboration  of   the evidence  to be given by the witness later in court  at  the trial.   From  this point of view it is a  matter  of  great importance  both  for the investigating agency and  for  the accused  and  a fortiori for the  proper  administration  of justice  that such identification is held without  avoidable and  unreasonable delay after the arrest of the accused  and that  all  the  necessary  precautions  and  safeguards  are

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effectively  taken  so that the  investigation  proceeds  on correct lines for punishing the real culprit.  It would,  in addition,  be  fair  to  the witness  concerned  who  was  a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the  alleged  culprit at the earliest  possible  opportunity after  the  occurrence.   It is thus  and  thus  alone  that justice and fairplay can be assured both to the accused  and to  the  prosecution.   The  identification  during   police investigation,  it  may  be  recalled,  is  not  substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given  in court.   The identification proceedings, therefore, must  be so conducted that evidence with regard to them when given at the  trial,  enables the court safely  to  form  appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court  of the identifying witnesess. We may now turn to the evidence on the record.  Abdul  Ghani Sheikh  who claims to be the eye witness to  the  occurrence lodged the first information report (Ex.  P-1) at 11-30 a.m. at  the  police station only about 200 feet  away  from  the stadium.   In order to appreciate the value of  this  report and  the value of the testimony of this witness in court  in regard to the description of the alleged culprit we consider it proper to reproduce the whole of this report.  It says -               "At  the  Stadium a football match  was  being               plaved.  From there the P.A.C. men chased  and               turned  out the people.  All the  people  came               out from the gates on               632               the  East  and North.  They  were  going  back               through the Hazuri Bagh Road.  I was  standing               near the cycleshop which is situated close  to               the Stadium chowk.  A P.A.C. jawan came out of               the main gate.  He carried a rifle.  He  fired               a  shot  towards  the road.  It  went  in  the               direction of the Militia wall.  Thereafter the               P.A.C. Jawan came on the road and fired shots.               lie   went  towards  the  Militia   gate   and               inflicted  bullet  injuries on  three  of  the               persons  going  on the Road.   Then  a  P.A.C.               Sardar  and a B.S.F. Jawan with  three  P.A.C.               men who carried Dandas in the hands, got  held               of  the said Jawan.  They took him inside  the               Stadium.   The  said Jawan fired nine  or  ten               shots  recklessly, though the way-farers  were               going on the road in a peaceful manner.  There               was no crowd, nor was there any breach.*      *     * In  the trial court in his examination-in-chief  he  deposed that he had seen the accused coming down the bund with a gun in  his  hand and helmet on his head and that he  fired  the fatal  and  other shots.  The relevant portion  has  already been  reproduced  earlier  in  this  judgment.   In   cross- examination he stated that apart from the first  information report he did not make any statement to the police excepting that  he  signed  the  seizure memos.   He  also  could  not remember if he had stated to the police that the accused was known  to  him.  He was further unable to  remember  if  the police had asked him this question.  After the occurrence he saw  the accused only in court and he was never required  to identify putting on a helmetand  had  also grown  a  beard when seen in court though at thetime  of  the  occurrence the accused had a helmet on his head. At this stage we may

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appropriately  point out that according to P.  W.  Chaudhuri Ghulam  Nabi  Mir,  S.R.O.,  Maharajganj,  who,  on  hearing reports of gun shots while he was in the police station, had come  out on the road, the statement of Abdul  Ghani  Sheikh was actually recorded by him.  This, according to the S.H.O. was recorded near the Stadium gate at the chowk’ which means the  police-beat  where three roads meet.   On  this  report witness  endorsed a note to the thana for drawing up  F.I.R. Chaudhri   Ghulam  Nabi  Mir  has  also  stated  in   cross- examination  that  he recorded the statements  of  the  pro- secution  witnesses during investigation under S.  161,  Cr. P.C.  Curiously  all  those  statements  were  admitted   in evidence  and  marked  as  exhibits  by  the  trial   court. According to the concluding part of Ghulam Nabi Mir’s cross- examination  in court, Abdul Ghani Sheikh had at  first  met him near the verandah of the 633 police station and since he was leaving in the direction  of the  place  of occurrence Abdul Ghani Sheikh  followed  him. From the statements made to the police which were  exhibited in  evidence  we find that Abdul Ghani Sheikh  also  made  a statement  on  October 7, 1967 marked as Ex.   D-2.   It  is important  to  point  out that,  according  to  Abdul  Ghani Sheikh, he had not made any statement to the police  besides the  report  Ex.  P-1.  From the testimony of  P.  W.  Abdul Ghani  Sheikh  it  is  obvious that  he  did  not  give  any description of the person alleged to have fired the shots in question  in Ex.  P-1 which was the first information  given by  him  to  the  police and  on  which  the-  investigation started;  nor  did  he state in Ex.  P-1 that  he  knew  the appellant  previously.   He was never made to  identify  the accused.   He has obviously told lies on a vital point  when he  says in the witness box that excepting Ex.  P-1  he  had made no other-statement to the police.  Though the  contents of  those  statements cannot be used for any  purpose  other than  that laid down in s. 162, Cr.  P.C. the fact  of  that statement having been made can certainly be relied upon  for the purpose of showing how untruthful Abdul Ghani Sheikh  is or at least, taking a charitable view of this  contradiction on his part, how undependable his memory is.  No attempt was made  on  behalf  of the State before us  to  show  if  this witness  had  identified  the  accused  in  the   committing magistrates  court.   We have referred to the  statement  of this witness under S. 161, Cr.  PC. because- the High  Court seems  to  have  taken  into  consideration  not  only   the statement  of  this  witness under s.  161,  Cr.   P.C.  for seeking  corroboration  of his testimony in  court  but  the statements  of  a  large number of  other  witnesses  during investigation have also been used for this purpose.  This is what the High Court has said in its judgment :               "Lastly it was contended that although some of               the   eye  witnesses  have  stated  that   the               appellant Rameshvwar Singh was called by  name               at  the  spot  by his  fellow  constables  and               saying  that  he would get involved,  yet  the               name of the appellant was not mentioned in the               FIR,  nor was the fact that the appellant  was               called  by  name  and  warned  by  his  fellow               constables  stated therein. This  circumstance               in  our opinion is not sufficient to  demolish               the prosecution case or cast any serious doubt               thereon.  To begin with, the first  informant,               Abdul  Ghani  Sheikh, has not  stated  in  his               evidence  about the fact of the accused  being               called  by  name  by  his  fellow  constables.

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             Furthermore,  this  was  a  matter  of  minute               detail  and  since the FIR  was  lodged  imme-               diately  after the occurrence, it may be  that               this  particular detail was not  mentioned  in               the  FIR  by  the  informant.   What  is  more               important is that all the eye               634               witnesses   including   the   informant   were               examined  by the police immediately after  the               occurrence  was over and the defence  has  not               cross-examined  the investigating  officer  on               the question that the fact mentioned above was               not  stated  by  the eye  witness  before  the               Investigating  Officer at that time.  Thus  it               should  be  taken for granted that  this  fact               though  not mentioned in the FIR  was  clearly               stated  by the eye witnesses in  their  state-               ments before the police soon after the FIR was               lodged.   In  fact the statements of  the  eye               witnesses  recorded by the police  which  have               been marked by the court below as Exs.  D-1 to               6  clearly show that the above mentioned  fact               was  stated before the police when  they  were               examined soon after the FIR was lodged.   Thus               the  charge  that  said  fact  appears  to  be               belated one appears to us to be groundless." The  High  Court  was  clearly  in  error  in  taking   into consideration  the contents of the statement recorded  under s. 161, Cr.  P.C. during the course of investigation for the purpose  of finding corroboration of the statements made  in court.  Section 162, Cr.  P.C. lays down the limited use  of such statements.  It says               "Statements to police not to be signed; use of               statements in evidence.               in  the course of an investigation under  this               Chapter  shall,  if reduced into  writing,  be               signed by the person making it; nor shall  any               such statement or any record thereof,  whether               in a police diary or otherwise, or any part of               such  statement  or record, be  used  for  any               purpose (save as hereinafter provided) at  any               inquiry  or  trial in respect of  any  offence               under  investigation  at the  time  when  such               statement was made;               Provided  that when any witness is called  for               the  prosecution  in  such  inquiry  or  trial               whose. statement has been reduced into writing               as  aforesaid, any part of his  statement,  if               duly  proved, may be used by the accused,  and               with  the  permission  of the  Court,  by  the               prosecution to contradict such witness in  the               manner  provided by Section 145 of the  Indian               Evidence  Act, 1872 and when any part of  such               statement  is  so used, any part  thereof  may               also be used               635               in the re-examination of such witness, but for               the  purpose  only of  explaining  any  matter               referred to in his cross-examination.               (2)   Nothing in this section shall be  deemed               to  apply to any statement falling within  the               provisions  of Section 32, Clause (1)  of  the               Indian  Evidence Act, 1872, or to  affect  the               provisions of Section 27 of that Act." The  language of this section is plain and explicit  and  it

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admits of no doubt as to its meaning.  We do not consider it necessary  to refer to a large catena of decisions  reported in  law  reports and cited in text-books stating  the  legal position   with  regard  to  the  restricted  use  of   such statements as laid down in s. 162, Cr.  P.C. prohibiting the court from using them as corroborative of the statements  in court. Once this part of the reasoning of the High Court is  elimi- nated  all  that  is left is the statement  of  Abdul  Ghani Sheikh in court and his report Ex.  P-1 made to the  police. That  report,  it  is not disputed,  does  not  contain  any description  of the alleged culprit.  Had the witness  known the culprit earlier, one would have reasonably expected  him to so state in the report. if, however, without knowing  him earlier he had formed a distinct impression of the culprit’s looks  and bearing so as to ’be able to identify him  later, then  also one would have expected this witness to  give  in the report the description of the culprit as seen by him  so as  to provide the investigating authorities with  something tengible as guideline to start with the investigation.   His identification in court without any previous  identification at a test parade and without any description in Ex.  P-1  to corroborate  it, is far too slender a piece of  evidence  to base  the appellant’s conviction thereon.  So,  Abdul  Ghani Sheikh’s evidence seems to us to be of no value in  bringing home the offence to the appellant. In the opinion of the High Court the evidence of Abdul Ghani Sheikh  and of Noor Hussain is corroborated by  P.Ws.  Abdul Hamid and Noor Mohammed Sheikh.  This is what the High Court says               "The evidence given by Abdul Ghani Sheikh  the               informant  and also Noor Hussain, a resume  of               which has been given above is corroborated  by               Abdul Hamid and Noor---Mad.  Sheikh PWs in all               material  particulars.  All  these  witnesses,               Noor Hussain, Abdul Hamid and Noor Mohd.  have               stated  that they know the accused before  the               occurrence  and they had occasion to  see  him               before.   They  disclosed  the  name  of   the               accused on the               636               very  date  of occurence when they  said  that               they  heard his three companions  shouting  at               him "Ramesh what are you doing, don’t be  mad,               you  will be involved." Ghulam Nabi Mir,  S.I.               P.W.  has  clearly stated that it was  on  the               very  day  of  occurrence  that  the  name  of               Rameshwar  Singh,  accused, was  disclosed  by               Abdul Hamid and by some other witnesses." Here  again, the High Court has committed the same error  in seeking corroboration from the statements said to have  been made  to  the  police by Abdul  Hussain  and  others  during investigation.   We  have  also  to  consider  further   the circumstance  that  the High Court has not adverted  to  the omission  on  the part of the investigating  authorities  to take  steps to arrest the appellant soon after  the  alleged disclosure  of  his  name to them  by  the  said  witnesses, According  to Ch.  Ghulam Nabi Mr. S.H.O.,  the  appellant’s name was disclosed on the very day of the occurrence.  There is  no plausible reason discernible on the record as to  why such  steps were not taken if the appellant’s identity as  a result  of  the disclosure of his name became known  to  the authorities the same day.  The High Court appears to us  not only  to  have erroneously disregarded the  forms  of  legal process but has also failed to advert to important and vital

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aspects, thereby causing serious prejudice to the appellant. In  view of what has just been stated prima facie grave  and substantial  injustice  cannot  but be  considered  to  have resulted from the infirmities in the impugned judgment. Let us now see if the evidence of Noor Hussain, Abdul  Hamid and  Noor Mohd.  Sheikh in any way advances the case of  the prosecution.   Abdul  Hamid (P.W. 2) who has  a  cycle  shop about  9 or 10 yards from the Stadium chowk claims  to  have gone  to see the match in question.  When the  P.A.C.  young men  are said to have turned the people out of  the  Stadium during the course of the trouble this witness also went out. He  claims  to have watched the entire occurrence  from  the roof  of  his shop through the window panes because  he  was afraid of being seen in the open lest he may also, be  fired at.  It is from there that he claims to have heard when  the P.A.C. men addressed the appellant : "Have you turned mad  ? Ramesh,  have you turned mad This seems to us to  be  wholly unacceptable and it appears to us that these words have been introduced in the, evidence for the purpose of providing the missing link of identification of the appellant.  Noor Mohd. Sheikh  is the brother of Abdul Ghani Sheikh.  He  also  did not  know  the  appellant and he never  saw  him  after  the occurrence  till  he came to court,  several  months  later. Though  he  claims  to have given  the  description  of  the culprit to the police and to have also expressed his ability to  identify  him, he was for reasons not disclosed  on  the record, never 637 made  to identify the appellant at any  test  identification parade,,  He also claims to have gone to the police  station with  Abdul  Ghani Sheikh though the latter claims  to  have gone  there  all alone.  Now, if he had actually  heard  the name  of  the appellant being shouted by the P.A.C.  men  as claimed by him and had accompanied his brother to the police station then there is no reason why the name of the  culprit was  not  disclosed to the police and not  included  in  the report,  Ex.  P-1.  Noor Hussain has also stated that  three young  men  of  the appellant’s unit came to  the  place  of occurrence  after the appellant had fired 8 or 9  shots  and they shouted addressing the appellant : "Ramesh what are you doing,  you will ’be implicated" and according to  him  they continued  shouting these words for some time,  before  they secured  the appellant and took him inside.  In  his  cross- examination  he  has  admitted  that  on  the  day  of   the occurrence no police officer asked him whether he was an eye witness.   When he was approached by the police later he  is stated to have told them : "The whole of the occurrence  has taken place, outside the thana and you are not aware of  it" Beyond   this  remark  there  was,  according  to  him;   no conversation  between  him  and the  police  and  indeed  he asserts  that no statement was taken from him on the day  of the occurrence.  In fact his position is that the  statement in court was the only statement he had ever made relating to the  occurrence.   It  is  interesting  to  note  that   his statement  before the police purporting to be under s.  161, Cr.  P.C. is exhibited as D-6 and is dated October 7,  1967. We are wholly unable to place any reliance on the  testimony of  anyone of these witnesses, who seem to us to be  clearly untruthful. Further,  it appears from the evidence of C. L. Wasan  (D.W. 2) who was again examined in the High Court that an informal identification  parade  of all the constables  belonging  to U.P. (P.A.C.) contingent had been held on October 7, 1967 in which  the appellant was also present.  Some members of  the public  were  also  there who were  asked  to  identify  the

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culprit  but none of them were able to do so., We  need  not dilate on this evidence as there was no formal record of any such test identification parade. The significant fact, however, which casts serious doubt  on the truth of the story of disclosure of the appellant’s name to the police on October 7, is the admitted omission by  Ch. Ghulam  Nabi  Mir,  S.H.O.  to  summon  the  appellant   for interrogation soon after the alleged discovery of his  name. No   convincing   or  even   intelligible   explanation   is forthcoming  for interrogating the other P.A.C. men  on  the 8th  and  9th  October.   Such  investigation  can  scarcely inspire confidence. 638 As  a result of the foregoing discussion we do not  consider it  Possible to uphold the conclusion of the High  Court  on the legal evidence existing on this record.  In the  absence of  any,  test  ’identification parade  and  excluding  from consideration the statements made under s. 161, Cr.  P.C. we find   no  reliable  material  on  which   the   appellant’s conviction can be sustained.  The High Court was in error in affirming  the  appellant’s conviction for  the  offence  of murder and confirming the sentence of death.  It was equally in-error in upholding his conviction and sentence-under  The appeal  accordingly-succeeds.  and  allowing  ,the  same  we acquit the appellant. V.P.S.                       Appeal allowed.. 639