06 May 1970
Supreme Court


Case number: Appeal (crl.) 199 of 1969






DATE OF JUDGMENT: 06/05/1970


CITATION:  1970 AIR 1321            1971 SCR  (1) 564  1970 SCC  (3) 128  CITATOR INFO :  D          1972 SC2478  (5)  RF         1978 SC1770  (25,26)

ACT: Evidence  Act (1 of 1872),s.9-Identification  parades-Manner of  holding-Weight  to be  attached-Constitution  of  India, 1950, Art. 136-Evidentiary value attached to  identification parades-Erroneous Interference by Supreme Court.

HEADNOTE: The  two appellants B and N, along with two others who  were acquitted  by the High Court, were charged with the  offence of  murder by shooting the deceased, committed on  September 12, 1967.  The evidence against them mainly consisted of six witnesses who had identified them at test parades.  The High Court rejected the evidence of three of them and relied upon the evidence of the remaining three.  Two of them claimed to be present at the time of the occurrence and the third  came on the scene after hearing pistol shots and the alarm raised by  others.   The  appellants  were  strangers  to  all  the witnesses. One of the eye witnesses (P.W. 1) gave the first information to  the  police,  but  there  was  no  description  of   the assailants in it.  The P.S.J. recording the report also  did not question the informant for the purpose of securing  more information about the description of the assailants in order to  be  able to take measures to discover and  arrest  them. P.W.  1  identified  the appellants  at  two  identification parades  conducted  by  a  Magistrate.   The  identification parade  in respect of N was held on October 21, 1967 and  in respect  of B on October 28, 1967.  In the form relating  to the identification parade, there is a footnote stating  that it is very useful to note whether the witness knew the  name of the person he had come to identify or only described  him and that the witness should not be asked in a general way to identify  whomsoever he knew.  The Magistrate gave  evidence that  he  had asked witnesses who had come to  identify  the accused (named) as to what he had seen the accused doing and recorded whatever the witness told him.  Whatever the  first witness  bad told him was recorded word for word  and  since the other witness bad repeated the same thing he noted  down



against their names the words as above.  The  identification memorandum  as  regards the other accused, prepared  by  the Magistrate  at  the time of his identification  parade,  was similar.  There was also unexplained error as to the date on which  appellant  B  was admitted into the  jail.   In  both identification   memos  there  were  no-  remarks   by   the Magistrate  in  respect  of  the steps  taken  by  the  jail authorities  to ensure proper conduct of  proceedings.   The eye witnesses also did not specify in court the accused  who had actually fired the pistol. The second eye witness admitted in cross-examination that he had  gone to the jail for identification on three  occasions and that on two occasions be had identified the accused  but on  the  third  occasion be did not identify  any.   He  was unable  to  state as to which accused he identified  in  the first and which in the second parade. The third witness deposed that he bad identified the accused who had a jhola in his hand (he was alleged by) by the three witnesses to have 565 taken a pistol from the Jhola) at one identification  parade and the other accused at the second identification parade. Appellant  ’N’ had stated during the  identification  parade that  he had been shown to the witnesses and had  also  been photographed. On the question whether the conviction could be sustained on this evidence :- HELD  :  Facts which establish the identity  of  an  accused person  are  relevant under s. 9 of the Evidence  Act.   The substantive  evidence of identification is the statement  of the witness in court.  But the evidence of identification at the  trial for the first time is from its very nature  weak. A prior test identification, therefore serves to corroborate the  evidence  in  court.   The  purpose  of  identification parades which belong to the investigation stage is to enable the witnesses to identify persons concerned in the  offence, who are not previously known to them, and thereby to satisfy the  investigating officers of their bona fides by  pointing out  the persons they recognise as having taken part in  the crime.    These   parades,  thus  furnish   evidence   which corroborates  the testimony of the identifying witnesses  in court.    These  parades  do  not   constitute   substantive evidence.   Keeping  in view the purpose  of  identification parades,   the   precautions  to  eliminate   suspicion   of unfairness and to reduce chances of testimonial error.  They must take intelligent interest in the proceedings bearing in mind  two considerations : (i) that the life and liberty  of an  accused may depend on their vigilance and  caution,  and (ii)  that  justice should be done  in  the  identification. Generally,  the  Magistrates  must  make  a  note  of  every objection raised by an accused at the time of identification and  the  steps  taken by them to  ensure  fairness  to  the accused,  so that the court which is to judge the  value  of the identification evidence may take them into consideration in the appreciation of that evidence.  The persons  required to  identify  an accused should have had no  opportunity  of seeing  him  after  the  commission  of  crime  and   before identification  and  secondly  that  they  should  make   no mistakes   or  the  mistakes  made  are   negligible.    The identification  to be of value should also be  held  without much delay.  The number of persons mixed up with the accused should  be  reasonably large and their bearing  and  general appearance not glaringly disincline. [570 H; 571 A-H; 572 A- C] In  the present case the evidence shows that the  Magistrate



paid scant attention to the direction in the  identification memos.  The memos do not show that the parades were held  by the  Magistrate  with  the degree  of  vigilance,  care  and anxiety  their importance demanded, and they were filled  up in  a very casual manner.  They could only have  a  somewhat fleeting  glimpse  of the assailants.  The  prosecution  has also  not explained why the second eve witness had to go  to the  jail  for  identification a third time.   The  two  eve witnesses did not state in evidence what particular part the two appellants played in the occurrence.  The third  witness who  come on the scene on hearing the alarm could only  have had a still more fleeting glimpse. [572 F-G; 573 D-E; 577 C- D] The  statements of the three witnesses were  also  otherwise unimpressive  and  coupled with the fact that  there  was  a possibility of their having seen at least one of the accused (appellant   B)  outside  jail  gates  a  week  before   the identification  parades were held, the  test  identification parades  could  not  be  considered  to  provide  safe   and trustworthy  evidence  on which the  appellants’  conviction could be sustained. [577 E] (2)  The  entire  case  depended on  identification  of  the appellants and the identification was founded solely on test identification parades.  The 5 66 High  Court  did not correctly  appreciate  the  evidentiary value  of  the  parades  and  proceeded  on  the   erroneous assumption that it is substantive, evidence and that on  the basis  of  that  evidence  alone  the  conviction  could  be sustained.  The High Court also ignored. important  evidence on  the  record  in  regard to  the  manner  in  which  test identification   parades   were  held  and   the   connected circumstances suggesting that they were held more or less in a  mechanical  way without the necessary  precautions  being taken to eliminate unfairness.  This is an erroneous way  of dealing  with test identification parades and since  it  has caused  failure  of  justice, this  Court  is  justified  in interfering under Art. 136 [577 H; 580 C-G]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  199 and 200 of 1969. Appeals  by special leave from the judgment and order  dated April  28,  1969  of the Allahabad High  Court  in  Criminal Appeal No. 2623 of 1968 and Referred No. 160 of 1968. K.   Baldev  Mehta, for the appellant (in Cr.A. No.  199  of 1969). G. L. Sanghi, P. N. Tiwari, J. B. Dadachanji,0.      C. Mathur and Ravinder Narain, for the appellant (in Cr. A.No. 200 of 1969). O. P.  Rana, for the respondent (in both the appeals). The Judgment of the Court was delivered by Dua,  J.-These two appeals by special leave arise out  of  a joint  trial  of  the present  appellants  and  Jagdish  and Sugriv.   All the four accused were convicted by  the  trial court; the present appellants were sentenced to death  under S. 302 read with s. 34 I.P.C. and Jagdish and Sugriv to life imprisonment  under  S. 302 read with s.  109,  I.P.C.  They challenged  their  conviction  by separate  appeals  to  the Allahabad  High  Court.  By means of a common  judgment  the High  Court dismissed the appeal of the  present  appellants (Crl.   A. No. 2623 of 1968) and allowed that of  their  co- accused Jagdish and Sugriv (Crl.  A. No. 2648 of 1968).  The



sentence of death imposed on the present appellants under s. 302, I.P.C. for the murder of Lala Hazarilal was confirmed. According  to  the  prosecution  story  Jagdish  and  Sugriv related  to  each  other  as  cousins  belonged  to  village Bidrika.   They used to harass the poor inhabitants of  that village  whereas  deceased Hazarilal used to  espouse  their cause.   As a result, there was not much love  lost  between Jagdish  and  Sugriv on the one side and  Hazarilal  on  the other.  Some years ago Jagdish, along with some others,  was prosecuted  for forging accounts of a  Co-operative  Society and  was found guilty the Assistant Sessions  Judge,  though released on probation under the U.P. First Offenders’ Pro- 567 bation  Act.  Bhoodev, at whose instance,  that  prosecution was  initiated,  presented a revision petition in  the  High Court  ’against  the order of the Assistant  Sessions  Judge challenging  the  benefit given to Jagdish  under  the  U.P. First Offenders’ Probation Act.  The High Court allowed  the revision  on  July  26,  1967  and  imposed  on  Jagdish   a substantive sentence of rigorous imprisonment for two years. Bhoodev had the support of Hazarilal in the trial court  and the revision to the High Court was also preferred by him  at the instance of Hazarilal.  This further enraged Jagdish and Sugriv  and Jagdish is stated to have  threatened  Hazarilal with death about ten days before his ’murder.  This happened before Jagdish was taken into custody pursuant to the  order of  the  High  Court  imposing  on  him  the  sentence   of, imprisonment.   This was alleged to be the immediate  motive for Hazarilal’s murder.  In 1962 also Jagdish and Sugriv had also  been prosecuted by Hazarilal under s. 452/326  and  s. 147,  I.P.C.  but  they were acquitted.   Ever  since  then, according  to the prosecution, Jagdish and Sugriv  had  been harboring  ill  feelings towards Hazarilal and  planning  to have him murdered through hired assassins.  On September 11, 1967 Ghaziuddin (P.W. 2) is stated to have gone to the house of Jagdish and saw Jagdish and Sugriv in the company of four unknown persons and over-heard Jagdish saying that the  said four  persons  had left the job unfinished though  they  had visited the village often and telling them that the  balance would  be paid to them only after the job was  accomplished. The  following  day at about 10 a.m. when it  was  drizzling Hazarilal  was sitting in his Gher also described as  Nohara on  a cot and his brother Inderjit (P.W. 1) and  Kanwar  Sen (P.W.  3) were squatting on a heap of fodder  nearby.   They were  all  sitting in the Duari because that  was  the  only place  ;which  provided protection against  rain.   Suddenly four  unknown persons entered the Nohra through  the  Duari. Two  of them caught hold of Inderjit and Kanwar Sen, one  of them  sat on the cot of Hazarilal and pressed his  legs  and the  fourth who was carrying a red jhola in his  hand,  took out  a  pistol from the jhola and fired  at  Hazarilal  from point blank range.  Hazarilal fell down.  The fourth man re- loaded his pistol and fired another shot which hit Hazarilal on  the  chest killing him  instantaneously.   Inderjit  and Kanwar  Sen  raised alarm.  On hearing their alarm  and  the sound of pistol fire, Ram Singh, Imam Khan and Ranchor (P.W. 4)  came  to  the  scene of  occurrence  and  saw  the  four assailants  running away from the Nohra.  According  to  the prosecution, the four unknown assailants murdered  Hazarilal at the instigation of Jagdish and Sugriv.  First information report  was  lodged by Inderjit at  police  station  Iodged, about  ten miles away from the place of occurrence  at  2.35 p.m. the same day (September 12. 1967).  On his return  from the  police  station Inderjit met Ghaziuddin (P.W.  2)  from whom  he learnt, what he (Ghaziuddin) had seen and  heard  a



day previous, 568 at  the house of Jagdish.  S. K. Yadav,  Sub-Inspector  with whom  the  F.I.R.  was  lodged  reached  the  scene  of  the occurrence  at  6.15  p.m.  the  same  day.   He  found  one discharged  cartridge  and  two wads at  the  place  of  the occurrence.   He recorded the statements of some  witnesses, including   Ghaziuddin  on  the  following   day.    Further investigation was conducted by Sub-Inspector Harcharan Singh (P.   W.  21).   Jagdish and Sugriv on  whom  suspicion  had fallen were not traceable with the result that warrants  for their   arrest  were  made  over  to  Sub-Inspector   Yadav. Proceedings  under  ss. 87 and 88, Cr.   P.C.  were  started against them but soon thereafter they surrendered themselves in  court on September 29, 1967.  During  investigation  the Investigating  Officer  learnt about the complicity  of  the present  appellants  and Naubat was arrested on  October  9, 1967.   Budhsen,  however, was arrested in  connection  with some  other  case  on  October 14,  1967  by  Sasni  police. Magistrate Pratap Singh (P.W. 20) held identification parade of Naubat on October 21, 1967 and of Budhsen on October  28, 1967. The  trial  court came to the conclusion  that  Jagdish  and Sugriv  had abetted the murder of Hazarilal  and  appellants Naubat  and Budhsen, had committed the murder.   Naubat  and Budhsen were, therefore, Sentenced to death and Jagdish  and Sugriv to life imprisonment. On  appeal  the High Court re-summoned  Lakhan  Singh,  Head Constable of Thana Sasni, District Aligarh, who had  already appeared at the trial as P.W. 14 and recorded his additional statement.   Lakhan  Singh had taken Budhsen in  custody  at police  station Sasni.  His statement as P.W. 14  left  some doubts in the minds of the Judges of the High Court to clear which  it was considered necessary to examine him  again  in the  High Court.  After considering the entire evidence  the High  Court acquitted Jagdish and Sugriv but maintained  the conviction  and sentence of Budhsen and Naubat,  appellants. The statement made by Ghaziuddin, (P.W. 2) was not  believed by the High Court and his version was described as unnatural and  improbable.   That court also ignored the  evidence  of Chandrapal  (P.W.  5),  Girendra  Pal  Singh  (P.W.  7)  and Lakhanpal  (P.W.  8)  on the ground of  their  being  either irrelevant   or  unreliable.   The  existence  of   inimical relations  between  Jagdish  and  Sugriv  on  one  side  and Hazarilal   on  the  other  was  not  considered  to  be   a sufficiently strong circumstance against Jagdish and  Sugriv so as to hold them guilty of instigating Hazarilal’s murder. As against Naubat and Budhsen, appellants in the opinion  of the  High  Court primary evidence consists  of  their  iden- tification  by some of the witnesses.  The court  took  into consideration  the identification parade for Naubat held  by Magistrate  pratap  Singh on October 21, 1967 and  that  for Budhsen  on  October  28,  1967.   It  was  principally  the evidence of identification on which reliance was placed  for holding the present appel- 569 lants  to be responsible for the murder of  Hazarilal.   The three   witnesses  on  whose  evidence  in  regard  to   the identification  the High Court relied are  Inderjit,  Kanwar Sen  and Ranchor.  The additional evidence recorded  by  the High Court consisted of the statement of Lakhan Singh.  That court  also  inspected the original entries in  the  general diary of the police as well as their carbon copies.   Lakhan Singh  stated  in the additional evidence that he  had  made entry at sl. no. 9 of the general diary of the original  re-



port  under  s.  307,  I.P.C. and s. 25  Arms  Act  made  by Pannalal  against  Budhsen (Ex.  Ka. 10).   He  denied  that blank space had been left in the general diary for  entering the particulars of the pistol (tamancha) and cartridges etc. In  regard  to this denial in Lakhan Singh’s  statement  the High  Court observed that the weapon of offence  with  which the  offence  under  s. 307, I.P.C. was said  to  have  been committed  by Budhsen was probably a later  addition  though the  court  did  not consider it proper  to  record  a  firm finding to that effect.  A major part of the judgment of the High  Court  is confined to the evidence in  regard  to  the identification  parade  and  to  the  question  whether  the identifying  witnesses  had  an opportunity  of  seeing  the appellants before their identification.  Holding that  there was no opportunity for those witnesses to see the appellants before  their  identifications  the  court  confirmed  their conviction and sentence as already observed. In this Court Shri Sangi and Shri K. Baldev Mehta  addressed us  in  support of the appeals of their  respective  clients Naubat  and  Budhsen.   According to  their  submission  the evidence  in regard to the identification parades is  of  an extremely   weak  character  and  is   wholly   uninspiring. According  to them it does not bring home to the  appellants the offence of murder beyond reasonable doubt.  It was  also urged  that  according  to  the  prosecution  evidence  four unidentified, persons having participated in the unfortunate murder  of Hazarilal there is no reliable  evidence  showing that  any one of the present appellants actually  fired  the fatal shot.  Evidence regarding any specific part played  by the  appellants, they contended, is also not forthcoming  on the  record.  On this ground it was emphasised that  in  any event the extreme penalty of death is uncalled for. Since  according  to  the High Court  the  primary  evidence against  the appellants is that of their  identification  by the  witnesses  the  crucial point seems to  us  to  be  the admissibility  and’  value  of the  evidence  regarding  the identification  of the appellants.  We accordingly  consider it  necessary, on the facts and circumstances of this  case, to  examine  that evidence.  The High  Court,    as  already observed by us, has ignored the evidence of Chandrapal (P.W. 5)  Girendrapal  (P.W.  7) and Lekhraj (P.W.  8)  as  either irrelevant   or  unreliable.   The  identification  of   the appellants is. 57 0 thus confined to the testimony of Inderjit (P.W. 1),  Kanwar Sen  (P.W.  3) and Ranchor (P.W. 4).  Turning first  to  the evidence of Inderjit it is important to bear in mind that he claims  to be present at the time of the alleged  occurrence along with Kanwar Sen. He also lodged the first  information report  at 2.35 p.m. on the day of the occurrence.   In  the report,  this  is  what  P.W. I  stated  in  regard  to  the identification of the alleged assailants and the  respective parts played by them in the commission of the offence:               "Today at about 10 O’clock in the day I and my               brother  Hazari  Lal and his  partner  (Sajhi)               Kumar  Sen son of Chidda Jatav of  my  village               were present at the Gher, and it was raining a               little, that four persons dame to the Gher and               out  of them, one man sat on the cot  near  my               brother and two persons caught hold of me  and               Kumar Sen and the fourth man having taken  out               the Katta (pistol) from inside the Jhola which               he was carrying in his hand, fired shot at  my               brother  Hazari  Lal.  My brother  jumped  and               fell  down the cot, and he fired another  shot



             at  my brother, who had fallen down which  hit               Hazarilal at his chest as a result whereof  he               died.   We both raised alarm.  On hearing  our               alarm Imam Khan son of Lal Khan, Ranchor Jatav               and  Ram Singh tailor of my village also  came               up  and then the accused persons  having  come               out  and  ran away.  These persons  have  also               seen  the four accused persons,  while  coming               out of the gher and running away.  Jagdish and               Sugriv  having  called, these  four  Badmashes               have  got committed the murder of my  brother.               We all can recognise these Badmashes on  being               confronted." This description of the assailants could hardly provide  the investigating authorities with any firm starting point  from which they could proceed to take the necessary measures  for the  discovery  and  arrest  of  the  alleged  offenders  as required  by  S. 157, Cr.  P.C. It is unfortunate  that  the Sub-lnspector  S.  K. Yadav, (P.W. 19) did not care  to  get more  information  about  the  description  of  the  alleged assailants by questioning the informant.  Of course, Jagdish and  Sugriv were mentioned in the F.I.R. as the persons  who had employed the four assailants for murdering the  deceased but having been acquitted they do not concern us. Now, facts which establish the identity of an accused person are  relevant under S. 9 of the Indian Evidence Act.   As  a general  rule,  the substantive evidence of a witness  is  a 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 evidence in order to carry conviction 571 should   ordinarily  clarify  as  to  how  and  under   what circumstances  he  came to pick out the  particular  accused person and the details of the part which the accused  played in the crime in question with reasonable particularity.  The purpose of a prior test identification, therefore, seems  to be  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   proceeding.    There   may,   however,   be exceptions  to  this general rule, when,  for  example,  the court  is  impressed  by  a  particular  witness,  on  whose testimony  it  can safely rely, without such or  other  cor- roboration.   The  identification  parades  belong  to   the investigation  stage.   They are generally held  during  the course of investigation with the primary object of  enabling the witnesses to identify per’sons concerned in the offence, who  were  not  previously known to them.   This  serves  to satisfy the investigating officers of the bona fides of  the prosecution  witnesses  and  also  to  furnish  evidence  to corroborate   their  testimony  in  court.    Identification proceedings  in  their legal effect amount simply  to  this: that certain persons are brought to jail or some other place and  make statements either express or implied that  certain individuals  whom  they  point out  are  persons  whom  they recognise  as having been concerned in the crime.   They  do not  constitute  substantive evidence.   These  parades  are essentially  governed  by s. 162, Cr.  P.C. It is  for  this reason that the identification parades in this case seem  to have  been  held  under the  supervision  of  a  Magistrate. Keeping  in view the purpose of identification  parades  the Magistrates  holding them are expected to take all  possible



precautions to eliminate any suspicion of unfairness and  to reduce   the  chance  of  testimonial  error.   They   must, therefore,  take  intelligent interest in  the  proceedings, bearing  in mind two considerations : (i) that the life  and liberty  of  an accused may depend on  their  vigilance  and caution  and  (ii)  that  justice  should  be  done  an  the identification   Those  proceedings  should  not   make   it impossible  for the identifiers who, after all, have,  as  a rule, only fleeting glimpses of the person they are supposed to identify.  Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time  of identification  and  the  steps  taken  by  them  to  ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them  into consideration  in  the appreciation of that  evidence.   The power to identify, it may be kept in view, varies  according to  the  power  of  observation and  memory  of  the  person identifying  and  each case depends on its  own  facts,  but there are two factors which seems to be of basic  importance in  the evaluation of identification.  The persons  required to  identify an accused should have bad no,  opportunity  of seeing him after the commission of the crime and 572 before identification and secondly that no mistakes are made by   them  or  the  mistakes  made  are   negligible.    The identification  to be of value should also be  held  without much delay.  The number of persons mixed up with the accused should  be  reasonably large and their bearing  and  general appearance  not  glaringly dissimilar.  The evidence  as  to identification  deserves,  therefore, to be subjected  to  a close and careful scrutiny by the Court.  Shri Pratap Singh, Magistrate,  who conducted the identification, has  appeared at the trial as P.W. 20.  The identification memo in respect of  Naubat, appellant, is Ex.  Ka 20 dated October 21,  1967 and  in respect of Budhsen is Ex.  Ka 21, dated October  28, 1967. In Ex.  Ka 20 we find a note that Naubat had stated that  he had   been  shown  to  the  witnesses  and  had  also   been photographed.  Column 7 of the memo requires to be  inserted therein  the name or description of the person  the  witness came to identify and this is to be recorded in the words  of the witness.  In Ex.  Ka 20, Inderjit said "I  saw the accused while committing the murder.  I did  not know him before." As  against  the  other five witnesses  namely  Kanwar  Sen, Ghaziuddin, Imam Baksh, Chandrapal and Ranchor we only  find the word "Do" In this connection the note at the foot of the printed form containing the following direction seems to  us to be, of some importance:               "N.B.-It  is very useful to note  whether  the               witness  knew  the name of the person  he  had               come  to identify or he only described him  in               some  such way as the man who was standing  at               the  door  at the time of  the  dacoity.   The               witness  is not to be asked in a general  way,               identify whomsoever you know." It  is obvious that scant attention was paid to  the  letter and  spirit of this note.  Shri Pratap Singh (P.W  20)  when cross-examined on behalf of Naubat said:"               "I  asked  the  witnesses  who  had  come   to               identify  accused Naubat as to what  they  had               seen Naubat doing.  Whatever they told me  was               recorded  by  ’me  in  col.  7  of  the  memo.               Whatever  the first witness Inderjit told  was               recorded  word  for word by me and  since  the



             other  witnesses  repeated the  same  thing  I               noted down the word ’as above’ (uparyukt)".               The  remarks  of  the  Magistrate  were   also               required against the enquiry on point no. 2 at               the  bottom of the first sheet of Ex.   Ka  20               which  relates to the step taken by  the  jail               authorities to ensure the               5 7 3               proper conduct of the proceedings.  We do  not               find  any  remarks by the Magistrate  on  this               point  in  Ex.   Ka 20.   His  remarks  ’would               certainly have provided helpful information on               an important point without which the court  is               left only to guess.               In  the  identification  memo  in  respect  of               Budhsen (Ex.  Ka 21) in column 7, against  the               name   of  Inderjit,  witness,  we  find   the               following entry:               "I  came to identify the person who  committed                             the murder of my brother".               Against  the  name of Imam Baksh we  find  the               following entry:               "Came to identify the person who committed the               murder".               Against  the  names  of  the  remaining   four               witnesses,  who were the same as mentioned  in               Ex.  Ka 20, we find the word "Do".  This means               that their answer is the same as that of  Imam               Baksh.  In this form also there are no remarks               by  the  Magistrate in respect  of  the  steps               taken by the jail authorities to ensure proper               conduct  of  proceedings.  The  memos  of  the               identification  parades do not show  that  the               parades  were held by the Magistrate with  the               degree  of vigilance, care and  anxiety  their               importance  demanded.   The casual  manner  of               filling  the identification memos  is  further               apparent   from   the   fact   that   Budhsen,               appellant’s  admission into the jail is  shown               therein as October 15, 1967 instead of October               14,  1967.  This mistake was admitted by  P.W.               20  in cross-examination without offering  any               explanation for the mistake.               We may here appropriately point out that  Shri               Pratap  Singh (P.W. 20) was called upon  as  a               Magistrate only to conduct the  identification               proceedings  and  it was beyond  his  duty  to               interrogate the witnesses for eliciting  other               facts or to require them to make any statement               beyond mere identification.               This   takes  us  to  the  evidence   of   the               identifying  witnesses.   Imam Baksh  was  not               produced  at the trial.  The  other  witnesses               except three, were not relied upon by the High               Court.  We need, therefore, confine  ourselves               only to those three witnesses.               Inder  it  (P.W.  1) brother  of  Hazari  Lal,               deceased,   deposed  at  the  trial  that   on               September  12, 1967 at 10 a.m. he, Kanwar  Sen               and Razarilal were sitting in the Gher,  about               50  paces  towards  the east  of  the  village               abadi.   Hazarilal  was sitting on a  cot  and               Kanwar  Sen and the witness were sitting on  a               heap  of- fodder nearby in the  Duari  because               that  was  the only  place  affording  shelter



             against rain.  The cot on which Hazarilal  was               sitting was               574               in the middle of the Duari.  What the  witness               next  stated  now  be reproduced  in  his  own               words:               "Four  unknown persons entered the Duari  from               outside.  One of them sat down by the headside                             of my brother and another proceeded to wards the               charpoy of my brother.  Of the remaining  two,               one caught hold of me, while the other  caught               hold   of  Kunwar  Sen.  Kunwar  Sen   and   I               immediately  raised an alarm The  person,  who               proceeded  towards the charpoy of my  brother,               took  out a country made pistol from  the  bag               and  shot  at my brother.  It was he  who  was               holding the bag in his hand.  The shot hit  my               brother  and  he jumped from the  charpoy  and               fell down.  The person who was sitting by  the               headside  of my brother pressed  my  brother’s               legs  with his legs.  The person,  armed  with               the  pistol, again loaded the pistol and  shot               at  my  brother’s  chest.   My  brother   died               immediately."               On  hearing my shouts and the sound of  pistol               firing  Ram  Singh,  Imam  Khan  and   Ranchor               arrived.   The Badmashes escaped  through  the               Duari and ran away towards the east." It  is  noteworthy that this witness  has  not  specifically stated  that Naubat, appellant, had fired the  pistol  shot. It  is  only by reference to the person holding a  bag  from which  the  pistol  was taker out that it is  sought  to  be implied  that Naubat had fired the shot In court Naubat  was not specifically identified as the person firing the shot or even  as a person holding the bag the witness has  also  not stated  as  to what part the other appellant played  in  the occur rence.  A little lower down the witness proceeds :               "I  never saw before the four persons who  had               come  to  my  brother’s gher on  the.  day  of               occurrence.  I bad come to the District  Jail,               Aligarh to identify them. (The witness, having               touched   the  accused  Naubat  and   Budhsen,               stated) I identified them in jail.  I saw them               for  the first time on the day  of  occurrence               and thereafter I saw them in jail at the  time               of   identification.   I  did  not  see   them               anywhere in. the intervening period. The  question  naturally  arises if on  this  state  of  his testimony the identification made by Inderjit can be held to be  a reliable piece of evidence on which the conviction  of the   appellants  can  be  sustained.   In  evaluating   his testimony   we  may  appropriately  consider  bow  far   his description of the actual occurrence inspires confidence  We are  asked  to believe that one of the four  assailants  sat down near the head of Hazarilal and pressed the legs of  the latter with 5 7 5 his  own legs and he and the deceased were in this  position when      one  of  the assailants fired at.  Hazarilal,  who thereupon jumped         down from the cot. When we  picture to ourselves the occurrence        as narrated we find it to be unrealistic and, therefore, untrust  worthy,    if    not fantastic.  There is undoubtedly considerable  embellishment in  the court version as compared to what was stated by  the



witness in the F.I.R. This embellishment does not add to the credibility of the story but it certainly suggests that  the witness has         a highly imaginative mind and is capable of playing on his imagi  nation.   We,  therefore,  do   not consider it to be safe to hold on  his evidence that the two appellants  were  among the assailants and that  Naubat  had fired  the fatal shots. Kanwar Sen (P.W. 3) deposed that  on the day of the occurrence he was sitting in the Nohra  of Hazarilal  who was sitting on a cot.  He and  Inderjit  were sitting   on  the  fodder  because  it  was  drizzling.  The statement  in regard to the occurrence may now be  described in his own words               "Four  unknown persons came, one of  whom  had               ared  jhola. One of them sat down on  headside               of Hazarilal and another proceeded ahead.  The               remaining two caught hold of me and  Inderjit.               Inderjit  and  I raised an alarm.  The  person               having the red Jhola took out a pistol   from               the Jhola and fired at Hazarilal. On being hit               with  the  shot,  Hazarilal  fell  down.   The               badmash,  who was sitting on the  headside  of               Hazarilal,  pressed  his legs with  his  legs.               Having  loaded  the pistol, the  person  armed               with  pistol,  fired  a  shot  at   Hazarilal.               Hazarilal  died.  Ram Singh Ranchor  and  Imam               Khan arrived at the spot. The  badmashes  went               away through the eastern side.               I  did  not know all the four  badmashes  from               before.  (Having touched Budh and Naubat,  the               witness  stated)  Identified them in  jail.  I               saw  these  two accused at the  spot  for  the               first  time and thereafter in jail. I did  not               see them anywhere in the intervening period." In   cross-examination   the  witness  admitted   that   the assailants has      been seen by him only for about three or four minutes. He had gone to the jail for identification  on three occasions. On two occasions he identified the  accused persons  in separate parades but did not identify anyone  on his third visit. The third visit deposed by him seems to  us to be a somewhat suspicious circumstance and the prosecution has not cared even to attempt to explain this statement. The witness was also unable to state as to which accused   had been identified by him in the first parade and which in  the second-. He was further unable to tell the dates on which he had       gone to the jail for identification. According  to him he had gone to the jail at about II or 12 O’clock during the day time. -576 These  two  witnesses  claimed  to  have  seen  the   actual occurrence which took three or four minutes.  Two assailants held  these  two  witnesses and one sat on the  cot  of  the deceased  and pressed the legs of the deceased with his  own legs and the fourth one fired two shots having re-loaded the pistol  after  the  first  shot.   Their  glimpses  ,of  the assailants  would  of course be somewhat  fleeting  but  the different   parts  played  by  the  four  assailants   would certainly have left on their minds a fairly firm  impression as  to  what  part the two appellants had  played  in.  that sordid  drama.   The power to  identify  undoubtedly  varies according  to  the power of observation and  memory  of  the identifier  and  an  observation may  be  based  upon  small minutiae  which a witness, especially a  rustic,  uneducated villager  may not be able to describe or explain.   In  this case  we  find  that  P.W.  4  Ranchor  does  not  know  the difference  between  a minute and a second.   An  illiterate



villager  may  also at times be found to be  more  observant than an educated man and his identification in a given  case may  impress  the court without the witness’ being  able  to formulate  his reasons for the identification.  But  on  the peculiar  facts  and circumstances of this  case  one  would expect  these  two witnesses to state what  particular  part these two appellants played in the course of the occurrence. Without  some  clear indication to that effect it  would  be difficult for a judicial mind to rely for conviction on  the general assertion of these witnesses that the     appellants were among the assailants who murdered the deceased.   Ranchor (P.W. 4) gave his version as follows:               "It happened 131 months ago.  It was 10 a.m. I               had gone to the shot) of Sannu Lal Patwari  to               make purchases.  Ram Singh, Darzi, was present               at that shop along with me.  I heard an  alarm               from  the eastern side in which direction  lay               the Nohra of Hazarilal.  I heard the sound  of               a  fire.  Ram Singh and I rushed  towards  the               Nohra.  When both of us were at a distance  of               15 Dacron from the Nohra, I heard the sound of               another  fire.  I saw four  unknown  badmashes               coming  out of the Nohra of  Hazarilal.   They               ran  away towards the east.   There  badmashes               were empty handed and one of the badmashes had               a  Katta in his right hand and a red jhola  in               his  left hand.  I went to the Nohra  and  saw               that Hazarilal was lying dead and Tnderjit and               Kanwar Sen were present there.  Imam Khan also               reached the Nohra of Hazarilal after me.               I  had gone to the District Jail in  order  to               identify  the  badmashes (Having  touched  the               accused   Naubat  and  Budhsen,  the   witness               stated)  I  identified them  in  the  District               Jail.   At first 1 saw them running away  from               the Nohra.  Thereafter, identified them in the               District Jail.               5 77               I  never saw them in the  intervening  period.               (Having  touched Naubat, accused, the  witness               stated).  He had a Katta in his right had  and               a jhola in his left hand." In  cross-examination  he  stated that he had  gone  to  the District  Jail, Aligarh twice for identification.   In  the, first  identification  he identified the person who  had  ’a jhola  in  his  hand and at  the  second  identification  he recognised  the other, Budhsen.  He also stated that  before identification  Proceedings, the Deputy Sahib  had  enquired from him as to whom he had come to identify to which he  had replied  that  he had come to identify the persons  who  had committed  the murder of Hazarilal.  This witness  only  saw the assailants when they were running away after the alleged murder.  Normally speaking, therefore, his would be a  still more fleeting glimpse of the assailants as compared to  that of the two earlier witnesses.  To sustain the conviction  on his evidence as to identification one would certainly expect a more firm an( positive reference to the appellant, who was holding   a  jhola  and  A  pristol  (katta).   during   the identification parade.  Vithout such corroborative  evidence the statement in court identifying Naubat, appellant,  would be of little value. This  is not all.  The statements of these  three  witnesses are  otherwise also unimpressive and coupled with  the  fact that  the possibility of these persons having seen at  least Budhsen  on  October 21, 1967 outside the, jail  gates  whom



they  are supposed to have identified a week later the  test identification parades cannot be considered to provide  safe and trustworthy evidence on which the appellants’ conviction has been sustained by the high Court. Shri O. P. Rana on behalf of the State very strongly  argued that under Art. 136 of the Constitution this Court does  not interfere  with  the  conclusions of  facts  arrived  at  on appreciation  of evidence and in this case on  consideration of the evidence relating to the test identification  parades two courts below have come to a positive conclusion that the appellants  were two out of the four unknown  assailants  of Hazarilal,  deceased.   This Court, so argued  the  counsel, should  affirm that conclusion in the absence of any  proved legal infirmity.  In regard to the sentence the counsel con- tended  that this is a matter which rests in the  discretion of  the  trial  court  and when the  sentence  of  death  is confirmed by the High Court this Court should not  interfere on appeal under Art. 136. It  is undoubtedly true that under Art. 136 this Court  does not  ordinarily interfere with conclusions of fact  properly arrived at by the High Court on appreciation of evidence  on the  record.  except  where there is  legal  error  or  some disregard  of the forms of legal’ process or a violation  of the principles of natural justice resulting 13 Sup.  Cl/70-8 578 in  grave  or substantial injustice.  In Tej Narain  v.  The Stale  of U.P. (1) this Court, after examining its  previous decisions  in which this Court had not  accepted  concurrent findings or had re-examined the evidence for itself, said               "The above cases show that this Court has  not               accepted concurrent findings of fact if  there               is no evidence for the finding or if there has               been  an  omission to notice  material  points               while appreciating evidence or to bear in mind               relevant   considerations  which   swing   the               balance in favour of the accused.  It has also               on  occasions reexamined the evidence in  view               of the fact that the case against the  accused               was  based on circumstantial evidence  and  it               was  of an extraordinary nature.  In the  case               before us, as we will show presently the, High               Court  appears to have  completely  overlooked               the variation in certain important aspects  by               P.W. 3, while deposing at the trial from  what               he  had stated earlier’ and  consequently  the                             High  Court could not apply its mind to  their               significance.   In view of this  infirmity  in               the  judgment and other  considerations  which               will  be  pointed out later we  are  satisfied               that  this is one of the exceptional cases  in               which  we should undertake the examination  of               the entire evidence and appraise it." In that case the following observations of Hidayatullah  J., (as the present Chief Justice then was) from the judgment in Anant  Chintaman  Labu  v.  The State  of  Bombay  (2)  were reproduced with approval:               "Ordinarily,  it is not the practice  of  this               Court  to  reexamine  the  findings  of   fact               reached  by the High Court particularly  in  a               case  where  there is concurrence  of  opinion               between  the two Courts below.  But  the  case               against  the  appellant is entirely  based  on               circumstantial  evidence,  and  there  is   no



             direct evidence that he administered a poison,               and  no poison has, in fact, been detected  by               the  doctor,  who  performed  the   postmortem               examination, or by the Chemical Analyser.  The               inference  of  guilt having been drawn  on  an               examination of a mass of evidence during which               subsidiary  findings  were given  by  the  two               Courts  below, we have felt it  necessary,  in               view of the extraordinary nature of this case,               to  satisfy ourselves whether each  conclusion               on  the  separate  aspects  of  the  case,  is               supported by evidence and is just and  proper.               Ordinarily, this Court is not required to               (1)   Crl.  As.  Nos. 81, 112 and 132 of  1964               decided on 23-10-1964.               (2)   [1960] 2 S.C.R. 460.               579               enter  into  an elaborate examination  of  the               evidence, but we have departed from this  rule               in  this  particular  case,  in  view  of  the               variety of arguments that were addressed to us               and   the  evidence  of  conduct   which   the               appellant  has  sought  to  explain  away   on               hypotheses   suggesting   innocence.     These               arguments, as we have stated in brief, covered               both  the  factual  as  well  as  the  medical               aspects  of the case, and have necessitated  a               close examination of the evidence once  again,               so  that we may be in a position to  say  what               are the facts found, on which our decision  is               rested " In  Mahebub  Beb v. The State of Maharashtra(1)  this  Court observed :               "We   have  been  taken  through  the   entire               evidence  of  all the important  witnesses  by               counsel for the appellants and we do not think               that  the conclusion recorded by the  Sessions               Judge and confirmed by the High Court was  one                             which  could  not reasonably be arrive d  at  by               those  Courts.  There are undoubtedly  certain               discrepancies  in the statements of  the  four               witnesses, Anna, Kisan, Sahebrao and  Sukhdeo.               But  what  weight should be  attached  to  the               evidence  of the witnesses was  essentially  a               matter with which the Court of first instance,               before  whom the witnesses were  examined  was               concerned, and if the view taken by that Court               is confirmed by the High Court, even  assuming               that  this Court may, if the case  were  tried               before  it,  have  taken  a  different   view,               (though  we  do not say that in this  case  we               would have so done) we would not be  justified               in   making  a  departure  from  the   settled               practice  of this Court and proceed to  review               the evidence." In  Brahmin  Ishwar  Lal Manilal v.  The  State  of  Gujarat (2) Court stated the position thus :               "We  have  dealt  with the  arguments  of  Mr.               Shroff  at some length but we wish to  restate               that  this Court will not examine  for  itself               evidence  led in a criminal case unless it  is               made  to  appear that justice  has  failed  by               reason  of some misapprehension or mistake  in               the reading of the evidence by the High Court.



             The  High Court must be regarded as the  final               court  in  criminal jurisdiction  and  special               leave  given  in  a  criminal  case  does  not               entitle the person to whom the leave is  given               to canvass the correctness of the findings  by               having the evidence read and ra-               (1)   Crl.  A. No. 120 of 1964 decided on 19th               March, 1965.               (2)   Ctl.   A.No.  129  of  1963  decided  on               August 10, 1965.               580               appraised.    There  must  ordinarily   be   a               substantial  error  of law or procedure  or  a               gross   failure  of  justice  by   reason   of               misapprhension  or  mistake  in  reading   the               evidence or the appeal must involve a question               of principle of general importance before this               Court  will  allow  the oral  evidence  to  be               discussed." In G. V. Subbramanyam v.  State. of Andhra Pradesh (1)  this Court appraised the evidence on the plea of self-defence and allowed the appeal because the approach of the High Court on this plea was found to be incorrect.  Again, in Raja Ram  v. State  of  Haryana  (2 ) because of  special  features  like rejection  by  the  court below of a  considerable  mass  of evidence  on  serious charges, this Court  looked  into  the evidence  to  see  how far the case as  framed  against  the appellant could be held proved. Before  us the entire case depends on the identification  of the appellants and this identification is founded solely  on test identification parades.  The High Court; does not  seem to have correctly appreciated the evidentiary value of these parades  though  they  were considered  to  be  the  primary evidence  in support of the prosecution case.  It  seems  to have proceeded on the erroneous legal assumption that it  is a  substantive  piece of evidence and that on the  basis  of that  evidence alone the conviction can be  sustained.   And then  that  court  also ignored important  evidence  on  the record   in  regard  to  the  manner  in  which   the   test identification  parades  were  held,  and  other   connected circumstances suggesting that they were held more or less in a  mechanical  way without the necessary  precautions  being taken to eliminate unfairness.  This is clearly an erroneous way of’ dealing with the test identification parades and has caused failure of justice.  Shri Rana laid great emphasis on the fact that there is no enmity shown between the witnesses and  the appellants.  In our opinion, though this factor  is relevant  it  cannot  serve as  a  substitute  for  reliable admissible  evidence required to establish the guilt of  the accused beyond reasonable doubt.  The evidence in regard  to identification having been discarded by us as legally infirm and  which does not connect the appellants with the  alleged offence  it cannot by itself sustain the conviction  of  the appellants.  Non-disclosure on the record as to how and when the Investiga to the lacuna in the prosecution case.   These appeals are allowed and the accused acquitted. Y.P.                                                 Appeals allowed.. (1)  [1970] 1 S.C.C. 225. (2)  crl.  A. No. 62 of 1968 on March 26, 1970 5 81