07 December 1970
Supreme Court


Case number: Appeal (crl.) 55 of 1970






DATE OF JUDGMENT: 07/12/1970


CITATION:  1971 AIR  363            1971 SCR  (2) 917  1970 SCC  (3) 918  CITATOR INFO :  F          1975 SC1814  (4)

ACT: Evidence  Act,  1872, s. 9--Identity  of  accused--Witnesses claiming to have known accused from before--Accused  denying claim  and  requesting test identification-Refusal  of  test identification whether vitiated trial.

HEADNOTE: The appellants were accused of an offence under, s. 302 read with  s. 34 of the Indian Penal Code.  Apart from P who  was injured  in  the  incident  there  were,  according  to  the prosecution,  two other eye-witnesses M and D who. knew  the appellants  from before.  The names of the  appellants  were mentioned  in  the First Information Report  but  not  their parentage.  The appellants, at the stage of inquiry, made an application to the Additional District Magistrate (Judicial) requesting  that  a  test  identification  parade  be  held. According to the appellants P knew them from before but  not the   other  two  alleged  eye-witnesses.   The   Magistrate rejected the application on the ground that the charge sheet had, already been filed.  The same request made at the trial stage to the Sessions Judge was again rejected on the ground it  was not bona fide.  The trial court, believing  the  eye witnesses, convicted the appellants.  The High Court  upheld their  conviction  and did not accept their  plea  that  the trial had been vitiated because they had been denied a  test identification  parade. In appeal to this Court  by  special leave, HELD:     As   laid   down   by  this   Court   in   Perkash Chand Sogani’s case the absenceof test identification in all cases  is not fatal, andif the accused person is  well-known by  sight  it  would  be waste of time to  put  him  up  for identification.  But if there is any doubt in the matter the prosecution  should hold an identification parade  specially if  an  accused says that the alleged eyewitnesses  did  not know  him  previously.  It may be that there is  no  express provision  in  the Code of Criminal  Procedure  enabling  an accused  to  insist on an identification parade but  if  the accused’  does make an application and that  application  is



turned down and it transpires during the course of the trial that the witnesses did not know the accused previously,  the prosecution  will, unless there is some evidence,,  run  the risk of losing the case on this point. [924 G-925 C] Perkash  Chand  Sogani- v. State of  Rajasthan,  Cr.   A.No. 92/1956 dt. 15-1-1957, applied. Sajjan Singh v. Emperor, A.I.R. 1945 Laj. 48, State of  U.P. v. Jagnoo, A.I.R. 1962 All. 333, In re Sangish, A.I.R.  1948 Mad. 113, Awadh Singh & Ors. v. Patna State, A.I.R. 1954 Pat 483,  Provash Kumar Bose v. The King, A.I.R. 1951 Cal.  475, Kanta  Prasad  v. Delhi Administration [1958]  S.C.R.  1218. 1221, referred to. In  the  present  case it could be said  about  D  that  his knowledge  of the accused was very scant.  The claim of  the other witness M that he had known the accused for about four years was not challenged in crossexamination.  Therefore  on the facts of the case the trial of the appellants. 918 Could  not be held to be vitiated because of the  denial  of test  identification  although  the  reason  given  by   the Magistrate  for refusing it, namely, that  the  cbarge-sheet had already been filed, was wrong. [925 G-926 C]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 55  of 1970. Appeal  by special leave from the judgment and  order  dated September  26, 1969 of the Allahabad High Court in  Criminal Appeal No. 1037 of 1969 and Referred No. 82 of 1969. Yogeshwar Prasad, S.  K. Bagga and Sureshta Bagga, for the appellants. O. P. Rana, for the respondent. The Judgment of the Court was delivered by. Sikri,  J.-This appeal by special leave is directed  against the  judgment of the High Court of Judicature  at  AllAhabad confirming conviction of the two appellants by the  Sessions Judge,  Mainpuri, under s. 302/34 of the Indian Panel  Code. Appellant  Jadunath  Singh  was sentenced to  death  by  the Sessions  Judge and appellant Girand Singh was sentenced  to undergo imprisonment for life. In  order to appreciate the points raised before us  by  the learned counsel for the appellants it is necessary to  state a  few facts.  It is alleged against the appellants that  on February  26,  1968, at about 7.30 a.m., in  furtherance  of their common intention, they murdered one Ram Swarup  Pandey by repeatedly stabbing him to death, when he was passing  on the Grand Trunk road in the town of Bewar to catch a  truck. As  many  as 34 injuries were found on the deceased  at  the postmortem conducted on his body on the same day at about  3 p.m. The  prosecution case in brief is as follows : It is  common ground that there was great enmity between the deceased  and Laturi Ahir and his sons, the two appellants.  The  deceased apprehended  danger to his life from them, and  on  November 23,  1967, be sent an application to the Superintendent  of Police,  Mainpuri,  ;alleging  that  Laturi  and  his   son, Jadunath,   Brahma,  Panna  Lal  and  Anokhey,   et&.   were terrorising  the weaker and poorer sections of  the  village community  and  declaring openly that they  would  kill  the deceased to silence his opposition for ever.  He prayed that an  enquiry  may be made and suitable action  taken  against them. (On February 25, 1968 ( the deceased came to Bewar  in the  evening to  meet the A.D.O.  in  connection  with  an



enquiry  on a complaint made against Munshi Lal  Pradhan  of the village.  He could not meet the A.D.O. as he was out  of station.  He stayed during the                             919 night  with  Prem  Narain,  P.W. 1, who  happened  to  be  a brother-inlaw  of his cousin Gulati Ram.  According to  Prem Narain, both of them got up in the morning at 6.45 a.m.  and since  it was Shivratri that day the deceased did  not  take any  food  and they left for the bus stand at  Bewar.   When they  reached  the bus-stand at about 7.10 a.m.  they  found that the bus for Etah via Sultanganj had already left.   The next  bus  was due to go at 9.30 a.m. but, as  the  deceased thought that he could get a seat in some truck near the Prem Hotel  and the Octroi barrier, they left the  bus-stand  for the  Octroi barrier.  When they reached the house of  Kotwal Singh  on  the way, both the accused attacked  the  deceased with chhuri and knife, respectively; Jadunath had the chhuri and Girand Singh had the knife.  Both the deceased and  Prem Narain were unarmed.  On hearing the, cries of the  deceased Prem Narain asked the appellants why they were attacking the deceased.   Then Girand Singh, appellant,  advanced  towards him  and  gave  a  knife cut at his  right  wrist.   On  the deceased falling down both accused persons attacked him with their  respective weapons.  On his raising the alarm  Mahesh Chandra  and  Dwarka Prasad who were coming along  the  same road  came and they shouted at the appellants.   On  hearing their shouts the accused ran away.  The deceased died on the spot. The  First  Information  Report was lodged at  8  a.m.,  the Police  Station  being only two furlongs from the  scene  of occurrence.  In the First Information Report, in the  second column,  under the heading "Name and residence of  accused", it was stated as follows               "1.  Jadu Nath Singh, father’s name not  known               and               2. Girand Singh father’s name not known.               Ahirs by caste, residents of Garhia  Kishunpur               P.S. Bewar, Distt.  Mainpuri."               The accused surrendered on March 12, 1968, and               it  appears that an application was  filed  by               the advocate on their behalf that they be kept               ba pardah as they might claim  identification.               Another  application was put in on  March  25,               1968,   in  which  it  was  stated  that   the               witnesses   other   than  Prem   Narain   were               strangers  and they applied that there  should               be  an  identification parade.  On  April  19,               1968,  the then Public Prosecutor submitted  a               report  to the Additional District  Magistrate               as under               "Accused  Jadu Nath Singh and Girand Singh  in               case Cr. No. 24 under Section 302 I.P.C., P.S.               Bewar,  have applied for identification,  vide               application  herewith  attached.   It  may               be submitted that they are named in the F.I.R.               and  charge sheet against them has also  been               received.  The applications are moved to delay               this case.  Submitted for n.a."               920               The Additional District Magistrate  (Judicial)               passed the following order on the application,               on April 20, 1968 :               "As charge sheet has already been received and               the  accused have been named by  P.Ws.,  there               appears  to be no justification  for  ordering



             test  identification.   Accused  be   informed               accordingly.  The jail authorities be informed               not to keep them ba parda." We  have  set  out these facts in detail  because,  as  will presently appear, one of the points raised by the   learned counsel   is  that  failure  to  put  up  the  accused   for identification  either vitiated the trial or, in  any  case, rendered  the evidence of, P.W. 2, Mahesh Chandra, and  P.W. 3, Dwarka Prasad, useless. We may here notice that portion of the evidence of Dr. N. K. Mital, who conducted the postmortem examination and on which one other point is sought to be founded.  He found that  the stomach  was empty and the small intestines were  half  full and  the  large intestines were also half full.   In  cross- examination he stated that since the stomach was empty,  the deceased should have taken his last meal about 4 to 6  hours before the infliction of the injuries." He was asked:  "’The evidence is that the deceased took puris and vegetable at  8 p.m.  on  25-2-68;  and  according  to  the  case  for   the prosecution  his murder took place at 7.30 a.m. on  26-2-68. At  the time of post mortem the stomach was found empty  and both  the small and large intestines were found  half  full. Does  it  not indicate that in all likelihood  the  man  was murdered between 3 and 4 a.m. ?" To this question Dr.  Mital answered               "No.   It is not an indication of  this  fact.               After  finishing his meal at about 8  or  8.30               p.m.  on  25-2-68 the stomach could  have  got               empty  by  2 or 2.30 a.m.  The  digested  food               material   should  have  come  in  the   small               intestine  by  about 2 or 2.30  a.m.  Complete               digestion    takes   place   in   the    small               intestine......  And  if he had  answered  the               call of nature the preceding evening fully and               completely, even then the small and large- in-               testines might be half full and stomach  empty               if  he  had taken puries with vegetable  at  8               p.m. on 25-2-68."’ The  learned  Sessions Judge believed the evidence  of  Prem Narain, corroborated as it was by the injuries sustained  by him  in the course of the occurrence at the hands of one  of the assailants, namely, Girand Singh.  He also believed  the evidence of Mahesh Chandra, P.W. 2, and Dwaraka Prasad, P.W. 3.  He relied on the fact that the appellants had  absconded immediately after the crime and had only appeared before the Court as late as March 12,                             921 1968,  after proceedings under ss. 87 and 88 of the Code  of Criminal  Procedure had been taken against them.   Regarding the  claim of the appellants for identification the  learned Sessions   Judge   observed  that  during  the   course   of investigation  both  Mahesh Chandra and  Dwarka  Prasad  had named  the  accused persons, and it would indeed  have  been surprising if the Additional District Magistrate  (Judicial) had   directed  the  accused  to  be  paraded  at   a   test identification  parade  in the jail.  He observed  that  the evidence  indicated  that  the  accused  persons  were   not strangers  even to Mahesh Chandra and Dwarka Prasad  at  the time  of the occurrence.  Mahesh Chandra had stated  in  his evidence  that he had known the accused persons for about  4 years and that they were living at village Garhiya lying  at a  distance  of three furlongs from Bewar, and  that  Girand Singh was reading at the Amar Shaheed Inter College,  Bewar. Dwarka  Prasad had stated that he had seen  Girand  visiting Bewar before that day.  He had also seen Jadu Nath Singh  at



Bewar  but  only once or twice before that.  For  all  these reasons   the   learned  Sessions  Judge   held   that   the applications claiming identification were not bona fide  and were  intended to protract the proceedings, and  accordingly he  was  unable to draw any adverse  inference  against  the prosecution  for the omission to parade the accused  persons at a test identification parade in the jail. The High Court believed the three eyewitnesses, Prem Narain, Mahesh Chandra and Dwarka Prasad.  The High Court held  that "Mahesh  and Dwarka Prasad are wholly independent  witnesses having  no  affinity with the deceased and  entertaining  no animosity  towards the appellants." The High Court  observed that  these’  witnesses  had  claimed  to  have  known   the appellants for the last six or seven years as they had  been frequently  visiting the town of Bewar, and  the  appellant, Girand Singh, was a student in a college at Bewar. The learned counsel for the appellants raised two  principal points before us (1)  Since the accused were denied identification the  trial was vitiated; (2)  The   medical   evidence  is  in  conflict   with   the prosecution case about the time of the assault. The learned counsel further urged that the number and nature of  injuries  belie  the prosecution  story,  and  that  the application by the deceased to the Superintendent of  Police was  nothing  but  a  peshbandi.  He  urged  that  the  eye- witnesses were not reliable and the courts below had  missed the  point  that the appellants could not  have  anticipated that  the deceased would be at this particular spot at  that time. 922 The learned counsel relied on the following observations  of the Lahore High Court in Sajjan Singh v. Emperor(1)               "If an accused person is already well-known to               the witnesses, an identification parade would,               of  course,  be  only a waste  of  time.   If,               however, the witnesses claim to have known the               accused previously, while the accused  himself               denies  this, it is difficult to see  how  the               claim  made by the witnesses can be used as  a               reason for re using to allow their claim to be               put  to the only practical test.  Even if  the               denial  of  the accused is false, no  harm  is               done,  and the value of the evidence given  by               the  witnesses may be increased.  It  is  true               that  it is by no means uncommon  for  persons               who  have been absconding for a long time  to.               claim  an  identification parade in  the  hope               that their appearance may have changed  suffi-               ciently for them to escape recognition.   Even               so,  this is not in itself a good  ground  for               refusing  to  allow  any sort of  test  to  be               carried out.  It may be that the witnesses may               not  be  able to identify a person  whom  they               knew   by  sight  owing  to  some  change   of               appearance or even to weakness of memory,  but               this is only one- of the facts along with many               others,  such as the length of time  that  has               elapsed,  which  will have to  be  taken  into               consideration   in  determining  whether   the               witnesses are telling the truth or not."               State of U.P. v. Jagnoo (2 ) refers to  Sajjan               Singh v. Emperor(1) with approval.               In  re Sangiah(3) the decision of  the  Lahore               High Court in Sajjan Singh v. Emperor  (Supra)



             was dissented from Rajamannar, J., observed :               "I am unable to find any provision in the Code               which  entitles an accused to demand  that  an               identification  parade  should be held  at  or               before   the   enquiry  or  the   trial.    An               identification parade belongs to the stage  of               investigation  by the police.   The,  question               whether  a witness has or has  not  identified               the  accused during the investigation  is  not               one which is in itself relevant at the  trial.               The  actual evidence regarding  identification               is  that  which  is given by  the  witness  in               Court.  The fact that a particular witness has               been  able  to  identify  the  accused  at  an               identification  trade is only  a  circumstance               corroborative of the identification in  Court.               If a witness has               (1) A.I.R. 1945 Lab. 48, 50.   (2) A.I.R. 1968               All. 333,               (3)   A.T.R. 1948 Mad. 113,               923               not  identified  the accused at  a  parade  or               otherwise  during the investigation  the  fact               may  be relied on by the accused, but  I  find               nothing  in the provisions of the  Code  which               confers a right on the accused to demand  that               the  investigation  should be conducted  in  a               particular way."               In  Perkash  Chand  Sogani  v.  The  State  of               Rajasthan (1) (an unreported decision of  this               Court) in connection with the point  regarding               identification, it was observed :               "Much  is  sought to be made out of  the  fact               that no identification parade was held at  the               earliest  opportunity  in order  to  find  out               whether P.W. 7 Shiv Lal could have  identified               the  appellant  as the person who was  at  the               wheel of the car and drove it and reliance  is               placed upon Awadh Singh & Others v. The  Patna               State(2)  Provash Kumar Bose and Another  v.               The  King(3)  and also Phipson on the  Law  of               Evidence,  9th  Ed.,  p. 415  to  justify  the               contention  that in criminal cases it  is  not               sufficient  to  identify the prisoner  in  the               dock  but  the  police  should  have  held  an               identification parade at the earliest possible               opportunity  to show that the  accused  person               had been connected with the crime.  It is also               the  defence case that Shiv Lal did  not  know               the  appellant.   But  on  a  reading  of  the               evidence  of P.W. 7 it seems to us clear  that               Shiv Lal knew the appellant by sight.   Though               he made a mistake about his name by  referring               to  him as Kailash Chandra, it was within  the               knowledge of Shiv Lal that the appellant was a               brother  of Manak Chand and he identified  him               as such.  These circumstances are quite enough               to show that the absence of the identification               parade  would  riot vitiate the  evidence.   A               person,  who  is well-known by  sight  as  the               brother  of  Manak  Chand,  even  before,  the               commission of the occurrence, need not be  put               before an identification parade in order to be               marked out.  We do not think that there is any               justification  for  the  contention  that  the



             absence  of  the identification  parade  or  a               mistake   made  as  to  his  name,  would   be               necessarily  fatal to the prosecution case  in               the circumstances." In Awadh Singh v. The State(2) it was held that "the accused person  may  or may not have legal right to claim  for  test identification and the holding of test identification may or may  not  be a rule of law, but it is a  rule  of  prudence. Test  identification parade should be held  especially  when the accused persons definitely as- (1)  Criminal Appeal No. 92 of 1956, decided on January  15, 1957. (2) A.I.R. 1954 Patna 483, (3) A.I.R. 1951 Cal. 475, 924 sert  that  they were unknown to the  prosecution  witnesses either by name or by face and they requested the authorities concerned to have the test identification parade held." In  Provesh Kumar Bose v. The King(1), a Division  Bench  of the Calcutta High (Harries C.J., & Das Gupta, J.) held:               "The  fact that the witnesses have  identified               in  Court  the  accused  is  of  very   little               consequence  in  a prosecution under  s.  384,               Penal  Code, when none of the  witnesses  knew               the  accused  from  before........  the   cor-               roborative  evidence which one is entitled  to               expect in cases of this nature is the evidence               of  the witnesses having pointed  the  accused               whom  they identified in Court from the  midst               of other persons with whom they were mixed  up               at a test identification parade.  The evidence               of  their having identified such persons at  a               test identification parade has no  substantive               value, but is very important corroboration  of               their evidence in Court."               In Kanta Prasad v. Delhi Administration ( 3  )               a point was made regarding non-holding of test               identification  parade by the police and  this               Court observed :               "As for the test identification parade, it  is               true  that no test identification  parade  was               held.   The appellants  were  known  to  the               police  officials who had deposed against  the               appellants  and the only persons who  did  not               know  them  before were the persons  who  gave               evidence  of  association, to which  the  High               Court  did  not attach  much  importance.   It               would  no  doubt have been prudent to  hold  a               test  identification  parade with  respect  to               witnesses who did not know the accused  before               the  occurrence,  but failure to hold  such  a               parade   would  not  make   inadmissible   the               evidence  of  identification  in  court.   The               weight  to be attached to such  identification               would  be a matter for the courts of fact  and               it  is  not  for this Court  to  reassess  the               evidence   unless  exceptional  grounds   were               established necessitating such a course." It  seems to us that, it has been clearly laid down by  this Court  in Perkash Chand Sogani v. The State of  Rajasthan(3) that the absence of test identification in all cases is  not fatal  and if the accused person is well-known by  sight  it would be waste of time to put him up for identification.  Of course if the prosecution fails to hold an identification on the  plea that the witnesses already knew the  accused  well



and it transpires in the course of the trial (1) A.I.R. 1951 Cal. 475.   (2) [1958] S.C.R. 1218,1221. (3) G.A. No. 92 of 1956 decided on 15-1-1957. 925 hat  the witnesses did not know the accused previously,  the prosecution would run the risk of losing its case.  It seems to  us  that  if  there  is any  doubt  in  the  matter  the prosecution  should hold an identification parade  specially if  an  accused says that the alleged eyewitnesses  did  not know  him  previously.  It may be that there is  no  express provision  in  the Code of Criminal  Procedure  enabling  an accused  to insist. on an identification parade but  if  the accused  does  make an application and that  application  is turned down and it transpires during the course of the trial that  the witnesses did not know the accused previously,  as pointed out above the prosecution will, unless there is some other  evidence,  run the risk of losing the, case  on  this point. In  the present case, however, it is clear that P.W.  Mahesh Chandra  knew the accused persons for about four  years  and said :               "I  know the accused persons,  Jadunath  Singh               and Girand Singh for about 4 years.  They live               at  village  Garhiya lying at  a  distance  of               three  furlongs from Bewar.  Girand  Singh  is               reading  at  the Amar Shaheed  Inter  College,               Bewar."               No  cross-examination  was  directed  on  this               point.  P.W. 3, Dwarika Prasad, stated               "I had seen Girand visiting Bewar before  that               but I had seen Jadunath at Bewar only once  or               twice  before that day.  Identifies  both  the               accused  persons  in  the  dock.   Lays   hand               correctly  on Jadunath; and also  lays  hands-               correctly on Girand in the, dock."               In cross-examination he stated               "I  had seen Jadunath accused at Bewar at  the               shop  of one Chhakku once or twice before  the               occurrence.  I had seen him two or 2-1/2 years               back." It  seems  to  us  that  the  reason  given  by  the  Public Prosecutor  in  the  report  and the  reason  given  by  the Additional  District  Magistrate  (Judicial)  in  the  order directing that identification requested for be not held were not  valid.  The fact that a charge sheet had been  received and the accused had been named by P.W.s was no justification for not having ordered the test identification.  But on  the facts of this case it is clear that P.W. 2 at least knew the accused from before.  As regards P.W. 3, although he  claims to have known the accused, it is clear that his knowledge of the  accused was very scant and if it had not been  for  the evidence of P.W. 2 we would not have placed reliance on the 926 evidence  of P.W. 3 in view of the fact that the police  did not ask him to identify the appellant.               It  is  stated  in  Phipson  on  the  Law   of               Evidence, 9th Ed., p. 415, as follows :               "In criminal cases it is improper to  identify               the accused only when in the dock; the  police               should  place him, before hand,  with  others,               and  ask  the witness to pick  him  out.   Nor               should  the witness be guided in any  way  nor               asked "Is that the man We  consider  that  the same is the law  in  India,  if  the identity is in doubt.



Accordingly on the facts of this case we are of the  opinion that the trial was not vitiated because the accused  persons were denied identification. Regarding  the second point, we have already  extracted  the evidence of the doctor, and it is quite clear to us that the evidence  is not in conflict with the prosecution case.   If the  occurrence  took  place  at about  7.30  a.m.  and  the deceased had not taken any food in the morning, his  stomach would  still be empty at 7.30 a.m. If anything  the  medical evidence  destroys the case of the defence that  the  murder took  place  at about 3 in the morning.  We  are  unable  to think  that the deceased would leave with Prem Narain  at  3 a.m.  to catch a bus which was supposed to leave at about  7 a.m. This  appeal  is by special leave and this  Court  does  not reappropriation  the evidence.  The, other points raised  by the  learned  counsel are of that nature, and  at  any  rate there is no substance in those points. The appeal accordingly fails and is dismissed. G.C.                    Appeal dismissed. L694SupCI/70-2500-29-4-72-GIPF. 1