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PETITIONER: RAMANATHAN

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT18/04/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR 1204            1978 SCR  (3) 694  1978 SCC  (3)  86  CITATOR INFO :  R          1978 SC1770  (2)

ACT: Identification  parade,  object  of-Prosecution  leading  no evidence  to  prove that the accused was  kept  "ba  parda", whether an infirmity in favour of the accused-Identification of Prisoners Act (Act XXXIII) of 1920. Evidence  Act, (Act 1), 1872-Section 45-Opinion of  experts, relevancy  of-Fire Arms identification, use  of  photographs through comprised microscope.

HEADNOTE: The  appellant was convicted of offences under Sections  302 (,on two counts), 307 and 460 I.P.C., and sentenced to death by  the  trial court, for illegally entering  a  residential house  and causing two murders by shooting.  He was  noticed by   the  deceased  Natrajan’s  wife  and   neighbour,   who identified  him in a test-parade. The High  Court  confirmed the  death sentence.  The appellant, inter-alia,  challenged the  propriety of his identification by the  witnesses,  and also  the  identification  of  the  fire-arm  used  for  the murders. Dismissing the appeal, the Court. HELD : 1. Identification parades have been in common use for a  very long time, for the object of placing a suspect in  a line up with other persons for identification is to find out whether he is the perpetrator of the crime.  This is all the more  necessary  where  the  name of  the  offender  is  not mentioned  by  those who claim to be eye  witnesses  of  the incident but they claim that although they did not know  him earlier,  they  could  recall  his  features  in  sufficient details  and would be able to identify him if and when  they happened  to see him.  The holding of a test  identification in   such  cases  is  as  much  in  the  interest   of   the investigating  agency or the prosecution as in the  interest of  the  suspect or the accused.  For while it  enables  the investigating  officer  to  ascertain  the  correctness   or otherwise of the claim of those witnesses who claim to  have seen  the  perpetrator of the crime, and their  capacity  to identify him, and thereby fill the Zap in the  investigation regarding the identity of the culprit, it saves the  suspect or  the accused from the sudden risk of being identified  in

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the dock by the self same witnesses during the course of the trial.  The line up of the suspect in a test  identification parade  is, therefore, a workable way of testing the  memory and veracity of witnesses in such cases and has worked  well in actual practice. [703 A-D] (2)The argument that the evidence regarding the holding of a test identification parade would be of no consequence  and would suffer from a fatal defect if the prosecution has  not led  any evidence to prove that the appellant was  kept  "ba parda", is not correct.  After referring to the decision  in Dhokal  Singh  and Anr. v. The State, I.L.R. (1953)  3  Raj. 762, their Lordships approved of the view taken in State  of Rajasthan v. Ranjitha, A.I.R. 1962, Raj 78 (FB) in which the earlier  decision  in  Dhokal Singh’s  case  was  adequately reexamined. [701 H, 702, 703A] (3)A comparison microscope is the most important and most- widely  used  scientific instrument in comparing  the  crime cartridge  with  the  test cartridge,  but  there  has  been considerable  difference  of opinion  amongst  investigators regarding  these photographs in a court for the  purpose  of illustrating the matching of the markings, and while it  may be  that  microscopic photographs, when taken with  the  due care and in the best of conditions, may enable the  evidence to be placed on the record in a visible form, a court  would not  be justified in rejecting the opinion of an expert  who has  examined the markings under the  comparison  microscope simply  for the reason that he has not thought it  necessary to take the photographs. [705 F-706 A-B] 695 The  State of Gujarat v. Adam Fateh Mohmed Umative  &  Ors., [1971] 3 SCR 208, differentiated.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 483  of 1976 Appeal  by Special Leave from the Judgment and  Order  dated the 19th February 1976 of the Madras High Court in Crl.   A. No. 669/75 ,and Reference Trial No. 46 of 1975 Frank  Anthony, S. C. Agarwal, P.  Ramachandran,  Aruneshwar Gupta and Sushil Kumar for the Appellant. A. P. Rangam for the Respondent. The Judgment of the Court was delivered by SHINGHAL,  J.   This  appeal by special  leave  is  directed against the judgment of the Madras High Court dated February 19, 1976, convicting appellant Ramanathan of offences  under section 302 (on two counts), section 307 and section 460  of the Indian Penal Code, and section 27 of the Arms Act.   The High,  Court  has confirmed the sentence of  death  for  the offences under- section 302, and has upheld the sentence  of imprisonment for life for the offence under section 307,  of ,rigorous  imprisonment for 10 years for the  offence  under section  460 and of rigorous imprisonment for 3  years  for the offence under section 27 of the Arms-Act. Nataraj an (deceased) who was a well to do yarn merchant  of Nagercoil  used  to live there in his own  house  in  Kumari Colony.  His wife Smt.  Nagammal (P.W. 1) used to live  with him in that house.  Their second son Varadarajan  (deceased) was  21  years old and was studying in fourth  year  in  the Medical  College at Palayam Kottai.  As September  19,  1974 was Vinayakchaturthi day, he took leave of absence for a day and came to his father’s house in Nagercoil on September 18, 1974.   On the following day (September 19, 1974)  Natarajan returned home from his shop, in his car, at about 9 p.m. His

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driver  parked the car in the compound of his house,  locked the  gate  of the compound wall, delivered its key  to  Smt. Nagammal  and went away.  The other servants also went  away at  about 6 p.m. as usual.  Smt.  Nagammal locked the  outer gate  of  her house as well as the grill door of  the  front verandah.  Natarajan, his wife Smt.  Nagammal and their  son Varadarajan  took  their food at about 10  p.m.  Varadarajan went to the office room, which was adjacent to the bed  room of  his parents, for study.  Smt.  Nagammal retired to.  her bed  room  and went to sleep.  She woke up and went  to  the bath  room at about 1.30 a.m. She saw that  Varadarajan  was sleeping  on the cot which was there for the purpose in  the office room.  One leaf of the door of that room was open  at that  time.  Smt.  Nagammal went back to her, bed  room  and slept  there leaving one of the doors of her bed room  open. A zero watt bulb was burning in her bed room. It  is alleged that at about 2.30 a.m. she heard a loud  cry from the direction of her son’s room and thought that he was shouting  in his dream.  But she heard the sound of  a  shot immediately  thereafter.  She woke up her husband  Natarajan and asked him to go and look in 696 Varadarajan’s  room.  Natarajan opened the door  leading  to the  drawing ball which was adjacent to his bed room.   Smt. Nagammal  heard  the sound of another gun  shot.   She  went towards  the  drawing  ball  and  saw  appellant  Ramanathan standing at a distance of about 1-1/2 feet from the door  of the  drawing hall and firing his pistol at her  husband  who was  standing  near the eastern window of that  room..  Smt. Nagammal raised an alarm shouting "ayyo".  Her husband moved to catch the appellant who went near the western portion  of the  drawing  hall and fired at Smt.   Nagammal.   The  shot grazed  her body just above her stomach.   Natarajan  caught hold  of the hands of the appellant and there was  a  tussle between  them.  The appellant shot at Natarajan  repeatedly. Natarajan fell down but rose up.  He dashed against the wall of the drawing hall.  Smt.  Nagammal went to his rescue, and the appellant shot at her stomach.  She turned to go to  the other  room to use the telephone but the appellant  hit  her with the pistol on her head.  The appellant then pressed the head  of  her husband with his pistol and went  towards  the front  verandah.  Smt.  Nagammal again shouted "  ayyo"  and ran after him.  She put on the verandah lights and the front light  of  her house and shouted "ayyo" and cried  that  the thief  was running away after shooting.  She found that  one of  the grill doors of the verandah was open at  that  time. The  appellant  ran through it, picked up a  bag  from  near Natarajan’s car, scaled over the front compound wall and ran away on the road.  Rajagopal (P.W. 2) who was living in  the opposite  house  heard  the reports of the  shots  and  Smt. Nagammal’s   shouts  and  came  running  so  quickly   that, according  to him, he was able to see the appellant when  he was  getting down from the front verandah of the  house  and was  scaling the compound wan.  Smt.  Laxmi, who lived  near Rajagopal’s   house,  also  reached  there.    They   seated Natarajan on a sofa in the drawing hall.  Muthu (P.W. 3) who lived  only  three  houses  away  and  was  a  relation   of Natarajan,  also heard the shots and Smt.  Nagammal’s  shout for  help  and reached there.  He  immediately  brought  Dr. Samson (P.W. 13) at about 3.15 a.m. He examined  Varadarajan on his cot in the room and found that he had died.  He  went to  the drawing hall and found Natarajan sitting on  a  sofa with gun shot injuries on his chest and some injuries on his head.  He was however not able to talk and was sitting  with a  "stunned appearance" and was bleeding.  Dr. Samson  found

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that  Smt.  Nagammal had also received gun,  shot  injuries. As  it was a medico-legal case, the matter was  referred  to the  Police  and  Muthu (P.W. 3)  took  Natarajan  and  Smt. Nagammal in his car to the hospital of Dr. Balasundram (P.W. 14).  First aid was given to Smt.  Nagammal, while Natarajan was  taken to the operation room.  Inspector  Narayana  Nair (P.W. 30) reached there and recorded the statement (Ex.   P. 1)  of Smt.  Nagammal at about 4.30 a.m. and registered  the case. Smt.   Nagammal  narrated  the  incident  in  her  aforesaid statement (Ex P. 1) and specifically stated that the culprit was aged 30 or 35 years, he appeared to be stout, and seemed to  have a beard.  She categorically recorded that  although his  name was not known to her, she could identify  him  "if seen. 697 Dr. Balasundaram (P.W. 14) x-rayed the injuries of Natarajan and  performed an operation.  He gave blood transfusion  and intravenous fluids, but Natarajan succumbed to his  injuries on  September 24, 1974.  Dr. Balasundaram had  examined  the injuries  of Smt.  Nagammal (P.W. (1) on September 20,  1974 at  about 4.30 a.m. and found that two of her  injuries  had been caused by a bullet, another injury by the grazing of  a bullet,  and yet another injury by a hit with the  butt-head of a revolver.  She was taken to the Government hospital  on September   24,   1974,  but  was  brought   back   to   Dr. Balasundaram’s nursing home and was discharged on  September 25, 1974. Investigation of the case was taken up by Inspector Narayana Nair (P.W. 30).  He found blood stains at several places  on the  cement  floor of the front verandah and  the  rooms  of Natarajan’s  house.   He found three spent  bullets  in  the drawing hall and one in the bed room.  He also recovered the lock  which was lying near the sofa of the drawing  hall  as well  as a screw-driver.  He found some bullet  marks  also, and prepared the inquest reports.  He searched the house  of the appellant at Nagercoil on September 20, 1974 at 10  p.m. after  sending prior information to the Magistrate, but  did not  find  him  there.  He sent special  search  parties  to search for him.  Deputy Inspector of Police  Balasubramaniam (P.W.  26) searched for the appellant at several  places  in Madras  from September 28, 1974 to October 5, 1974, but  did not find him.  He traced him to several places in Delhi from October  7, 1974 to October 19, 1974, but to no  avail.   He learnt  that the appellant was at Madras and left  Nagercoil for  Madras  where  he  learnt that  the  appellant  was  in Hyderabad.   He reached Hyderabad on November 11,  1974  and learnt  that  the appellant was in-patient in  Sarojini  Eye Hospital,  Hyderabad.   He went there and arranged  for  his discharge from that hospital.  He was ultimately arrested on November 14, 1974 by Inspector Sadasivan Nair (P.W. 31).  An identification  parade was held soon after, on November  16, 1974, by Kanagasabapathy (P.W. 27) Judicial- Magistrate. lie was  correctly  identified  by  Smt.   Nagammal  (P.W.   1), Rajagopal (P.W. 2), Samraj (P.W. 9) and Vasantha (P.W.  10). The  Investigating Officer took the help of  the  ballistics expert  also.  Ultimately the appellant  was  charge-sheeted and was tried and convicted as aforesaid. It  has been argued by Mr. Anthony, learned counsel for  the appellant,  that Smt.  Nagammal (P.W. 1) knew the  appellant before  the incident as he used to reside in  Nagercoil  and there  were  civil and criminal cases between  him  and  her husband.  Our attention has particularly been invited to the copy  of  a  notice sent by the appellant  to  Natarajan  on December  24 (26 ?), 1969, in which he had stated that  when

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he  came  to  see  him, be was told  by  his  wife  that  he (Natarajan)  had gone to Trivandrum, that he would  come  in the night and that the would fix the price and complete  the transaction of the property which was the bone of contention between  the  appellant and the deceased.  We  find  however that when such a suggestion was made to Smt.  Nagammal (P.W. 1), she categorically denied having seen the appellant prior to the date of the incident.  She in fact stated that  while she  had  heard  his name, she had not met  him  before  the incident. 10-315SC1578 698 It  has  been argued, and has not been  disputed,  that  the aforesaid  notice  was not exhibited or  proved  during  the course  of the trial, and does not really form part  of  the record.   The High Court has, all the same, taken  the  view that  even if it were assumed that Smt.  Nagammal (P.W.  (1) saw the appellant on one occasion in December, 1969, at  her house,  in the casual manner referred to in the  notice,  it was quite likely that she did not note hisfeatures    and may not have remembered them after a lapse of morethan four  years.   Then  there  is the  further  fact  that  the appellant hashimself stated that he did not even know that her  house was situated in Kumari Colony, Nagercoil.  So  if that  was the position regarding his contact with the  house of  the husband of Smt.  Nagammal, the High Court cannot  be blamed for arriving at the conclusion that she did not  know the  appellant  at  the  time of the  incident  and  had  to describe the assailant with reference to his physiognomy. An  ancillary  argument  has been  made  that  as  Natarajan (deceased) undoubtedly knew the appellant, the fact that  he did  not name him to his wife Smt.  Nagammal (P.W.  1),  his neighbour Rajagopal (P.W. 2), his relation Muthuswami  (P.W. 3),  Dr. Samson (P.W. 13) or to Dr. Balasundaram  (P.W.  14) even  though  he died after four days of  the  incident,  is sufficient  to  rule  out the possibility that  it  was  the appellant  who had committed the murders.  It has also  been argued that if Natarajan could shout "ayyo" at least once as stated  by his wife, he could as well shout his name at  the time  when he saw him for the first time, during the  course of the incident.  We have gone through the statements of all these witnesses and we find that all of them were questioned in  this respect and have given categorical  answers.   Smt. Nagammal  (P.W. 1) has stated that her husband was not  able to  talk "on account of the shock".  Rajagopal (P.W. 2)  has stated  that when he reached the house of the  deceased,  be found  that there was blood on the injuries which  had  been caused to him by gun shots, "he was stupefied" and "did  not talk  about anything".  When he was cross-examined  further, he stated that when he saw Natarajan for the first time  "he was in a stupor" and that he did not say anything about  the person  who  had attacked him.  As the witness  reached  the place immediately on bearing the gun shots, so much so that, according  to him, he was able to see the appellant when  he was  getting down from the front verandah of the  house  and was  scaling the compound wall, his statement  is  important and fully corroborates the statement of Smt.  Nagammal (P.W. 1) Muthuswami (P.W. 3) also reached the place of  occurrence soon after, on hearing the shouts of his aunt Smt.  Nagammal (P.W.  1)  He has stated that be asked  Natarajan  what  had happened,  but  he  was in "a shock"  and  "never  replied". Muthuswami  (P.W. 3) reached the house of Dr.  Samson  (P.W. 13)  at  about 3.15 a.m. and both of them  returned  to  the house  of the deceased in about 5 or 7 minutes.  Dr.  Samson (P.W.  13)  has stated that he  found  Natarajan  (deceased)

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sitting  on a sofa-cum-bed, he had gun shot injuries on  his chest  and some injuries on his head, and that be  was  "not able  to  talk  to  me" and  was  "sitting  with  a  stunned appearance’.  The witness asked Natarajan what had happened, but  ’he did not reply.  Then there is the statement of  Dr. Balasundaram (P.W. 14) who 699 examined  all the injuries of Natarajan at about 4.15,  a.m. He  has  categorically stated that Natarajan was  not  in  a position to speak at that time, and that he asked  questions to him but "he could not respond".  The witness has  further stated  that Natarajan was unable to speak from the time  of his  admission  in his Nursing Home, that he  was  not  res- ponding  even to painful stimuli even though he  could  sit, and  that the same condition continued till his death.   The witness  denied  the  suggestion  that  Natarajan   regained consciousness. and was able to talk.  He has stated that  he was  "dazed" and even though there was no serious injury  on his  head, there may be other reasons for which he  was  not able  to  talk even though his centres of  speech  were  not affected. It would thus appear that the High Court has taken all  the relevant evidence into consideration in taking  the view  that Natarajan was not able to name the  appellant  at the time of the incident, or thereafter. Dr.  Natarajan  (P.W.  15), who was  Professor  of  Forensic Medicine,   performed   the   postmortem   examination    on Natarajan’s body.  He has mentioned the numerous injuries on the dead body.  In particular, he has stated that the  right lobe of the lever was pale and cirrhotic with laceration  in the  middle of the right lobe and contusion  around.   There was another laceration in the right lobe of the lever.   The 4th rib was found cut and was absent.  There was  communited fracture  of  the 5th rib above the middle  portion  with  a number of bits of the bone along with clots of blood.  There were fractures of the 6th and 8th ribs also and there was  a long  contusion.   Then  there  was  another  equally   long contusion on the right parietal pleura along with ribs  Nos. 1 to 6 in the middle.  There was a very long contusion along ribs 1 to 8 on the left side measuring 20 cm. x 6 cm. in the left  parietal pleaura.  The witness has stated the  serious condition of the lungs and has stated that Natarajan died of haemorrhagic shock resulting from the injuries sustained  by him.   The brain surface vessels had congested and  the  cut sections of the brain disclosed patchial haemorrhages.   The injuries  which were inflicted on Natarajan  were  therefore very serious, and we are unable to think that the High Court went  wrong  in reading the evidence while arriving  at  its finding  that  Natarajan was not in a position to  name  his assailant. It has further been argued in this connection that there was no sufficient light which could enable Smt.  Nagammal  (P.W. 1) and Rajagopal (P.W. 2) to identify the appellant.  It  is true that there was no light in the drawing hall, or in  the office room where Varadarajan was sleeping, or in the  front grill  verandah from which the appellant is alleged to  have broken  into the house.  Smt.  Nagammal (P.W. 1)  and  Raja- gopal  (P.W. 2) have however stated that two mercury  street lights, each having two tubes, were burning in front of the verandah,  and it is not disputed that the distance  between them   and  the  verandah  was  not  more  than   29   feet. Rajarathinam  (P.W.  8) has stated that he had  put  on  the street light switch on the preceding evening at 6.30 p.m. and  that all the three street lights on Kumari Colony  road were burning.  Moreover, Smt.  Nagammal (P.W. 1) has  stated that  the  street light was flowing through  the  half  open

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front  door of the drawing hall and that a white  zero  watt bulb was burning in her bed room.  She has also 700 stated that there was a ventilator just above the window  of the drawing hall through which the light was coming.  As has been  stated,  the  verandah had a grill, and  even  if  Mr. Anthony’s  argument  is accepted that the  shutters  of  the window  of the drawing hall had been closed and  the  street light  did not pass through them, the High Court  cannot  be blamed for holding that there was sufficient light to enable Smt.   Nagammal  to  see  and notice  the  features  of  the appellant. An  effort was made to argue that as Smt.  Nagammal did  not mention  in her statement Ex.  P. I that her  assailant  was wearing a turban, the description was quite insufficient and should   have   been  rejected.   We  have   examined   Smt. Nagammal’s  statement in Ex.  P. 1. She has stated that  the assailant  was about 30 or 35 years old, he appeared  to  be stout (hefty ?) and seemed to have a beard.  The High  Court has  taken the view that the description  was  satisfactory, and we see no justification why it should be rejected merely because Smt.  Nagammal did not state, at that time, that her assailant  was wearing a turban.  Her explanation  that  she could not make a mention of the turban in Ex.  P. I  because of  "anguish"  cannot be said to  be  unsatisfactory.   Then there  is the further fact that a mention had been  made  of the turban even at the time of the inquest report which  was drawn up, the same day.  It would thus appear that when  the other  description in Ex.  P. 1 was quite  satisfactory,  it could  not have been rejected merely because Smt.   Nagammal did not state that the assailant was wearing a turban. The  prosecution  has examined Smt.  Nagammal (P.W.  1)  and Rajagopal  (P.W.  2)  as  the  main  witnesses  against  the appellant.  We have made a mention of the description of the assailant given by Smt. Nagammal in her report Ex.  P. 1 and its reiteration in her statement in the trial court with the further statement that the assailant was wearing a turban at the  time  of  the incident.  In  both  the  statements  she claimed  that  she would be able to identify him  on  seeing him.   As has been stated, there is no reason to  disbelieve her  statement  that  she had not seen him  on  any  earlier occasion.  The incident involved two murders, and the firing of  at  least eight shots including the two which  hit  Smt. Nagammal  from  close proximity.  All that must  have  given sufficient  opportunity  to  Smt.  Nagammal  to  notice  the features of her assailant who was out to destroy her family. There  was  sufficient light to enable her to do so  and  it therefore remained for the Investigating Officer to  arrange for  a test identification parade.  We shall deal with  that aspect of the evidence in a while. Rajagopal  (P.W. 2) was the Vice Chairman of  the  Nagercoil Municipality  and  was  living just across the  road,  at  a distance  of  not more than 40 feet from the  house  of  the deceased.   He  has  stated that he immediately  got  up  on hearing the two gun shots and put on the light of his house. He  went and saw both in fro,-it and backward but could  not see anything at his house.  He again went to bed.  Two minu- tes later be heard 4 or 5 shots from Natarajan’s house.   He immediately  put  on the light of the drawing  ball  of  his house  and  came  to this front  verandah.   He  heard  Smt. Nagammal  (P.W. 1) raising an alarm, and saw  the  appellant getting down from the front varandah of her house, 701 going north, towards her car-shed and then scaling the front compound  wall  of her house and jumping  and  running  away

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towards  the  north of the main road.  The witness  did  not know the appellant earlier, but he saw that he was having  a beard  and  had tied a circular turban.  He  clearly  stated that  he could see him because of the tube lights and  which were  burning  at  that  time and  the  light  in  front  of Natarajan’s  varandah.  The investigating Officer  therefore Wanted to test his capacity for identification also, as soon as the culprit was arrested. It  will  be recalled that the appellant could  be  arrested only  on November 14, 1974, and it is disputed that  a  test identification  parade was held soon after on  November  16, 1974.  It cannot therefore be said that there was any  delay in   holding   the   parade.  The   parade   was   held   by Kanagasahapathy  (P.W.27), who was a Judicial Magistrate  at Nagercoil.   He  has stated that he selected  eleven  under- trial   prisoners   from   the   sub-jail   for   the   test identification  parade who were almost of the same size  and complexion  as the appellant, and that as the appellant  was having  a  slight beard, three of the  selected  under-trial prisoners  were persons having slight beards "just like  the accused".    It   appears  from  the  memorandrum   of   the identification  parade that the persons who were mixed  with the  appellant were persons of the same status (or  position in life).  The appellant was allowed to change his place (or number)  of  each  occasion when a  witness  was  called  to identify  him.  The Magistrate has given all the details  of the identification parade and has stated that the  appellant was  correctly identified by Smt.  Nagammal. and  Rajagopal, as  well  as  by  the two  other  witnesses.   No  effective argument  has  been  made  why the  evidence  of  the  +Lest identification  parade should not have been believed by  the trial court and the High Court in these circumstances. An attempt was made to argue that the witnesses were able to identify  the appellant because his photograph had  appeared in  a local newspaper on November 16, 1974.  Smt.   Nagammal (P.W.1) has however stated that she was not in the habit  of reading  a  newspaper  and  did  not  even  know  about  the publication  of any such issue.  Rajagopal (P.W.2) was  also cross-examined  in this respect and he has also stated  that he  had  not  noticed  any  such  publication.   It   cannot therefore  be said that the parade was a farce or was a  got up affair. It  has  however  been  argued  further  that  as  only  the appellant  was wearing a white dhoti and a white shirt,  the test  identification  parade was of no consequence  and  the High  Court  erred  in taking a contrary view.   It  may  be pointed  out  that when such, a suggestion was made  to  the Magistrate  who  held  the test  identification  parade,  he denied  it,  and it cannot be said that there was  any  such infirmity  in  the  parade.   There  is  also   satisfactory evidence  to  prove  that  the  appellant  was  not  wearing spectacles as his pair was given to another prisoner  before the witnesses were called in for his identification. Mr.  Anthony has however argued that as the prosecution  had not led any evidence to prove that the appellant was kept ba parda’, the test identification parade was of no consequence because of that fatal infir- 703 The  appellant cannot therefore derive any benefit from  the decision  in Dhokal Singh’s case which has  been  adequately re-examined in Ranjita’s case. Identification  parades have been in common use for  a  very long time, for the object of placing a suspect in a line  up with other persons for identification is to find out whether

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he  is the perpetrator of the crime.  This is all  the  more necessary where the name of the offender is not mentioned by those who claim to be eye witnesses of the incident but they claim that although they did not know him earlier they could recall his features in sufficient details and would be  able to  identify him if and when they happened to see him.   The holding of a test identification in such cases is as much in the interest of the investigating agency or the  prosecution as in the interest of the suspect or the accused.  For while it  enables  the  investigating  officer  to  ascertain  the correctness or otherwise of the claim of those witnesses who claim  to have seen the perpetrator of the crime  and  their capacity  to  identify him and thereby fill the gap  in  the investigation  regarding  the identity of  the  culprit,  it saves  the suspect or the, accused from the sudden  risk  of being  identified  in the dock by the  self  same  witnesses during the course of the, trial.  The line up of the suspect in a test identification parade is a workable way of testing the  memory and veracity of witnesses in such cases and  has worked well in actual practice. In the present case where there was satisfactory evidence to prove  that  at  least two  of  the  witnesses  emphatically claimed  from the very beginning of the incident  that  they bad  noticed the culprit and had in fact described  him  and had  claimed that they could identify him, the holding of  a test  identification parade was absolutely  necessary.   The fact  that  such a parade was held within two  days  of  the arrest  of  the  appellant,  and  was  held  by  a  Judicial Magistrate   with   all  the   necessary   precautions   and arrangements, leaves no room for doubt trial the evidence of the test identification was of considerable importance.  The appellant knew about that evidence from the date the  parade was held, and if he wanted to demolish it, it was for him to do so by effective cross-examination of the witnesses and/or by   examining  his/own  witnesses  in  rebuttal.   As   the appellant  has  not succeeded in doing so, it is  futile  to contend  that we should reject this important piece of  evi- dence  merely because the prosecution did not lead  evidence of  the nature referred to in Dhokal Singh’s  case  (supra). The trial court and  the High Court have placed reliance  on the  statements  of Smt.  Nagammal and  Rajagopal  and  have found that the identification parade was held "properly  and fairly".  No satisfactory argument has been advanced why  we should interfere with that finding. it  has next been argued that although the evidence  of  the prosecution  showed that eight shots were fired at the  time of  the  incident,  the High Court erred  in  accepting  the opinion  of Ramiah (P.W.23) who was the Fire Arms Expert  of the  Tamilnadu Forensic Science)’-and  Chemical  Laboratory, Madras,  that all of them were fired from one and  the  same fire arm.  It has been urged that as no "empties" were found at the place of the incident, the eight shots could not have been fired from a 704 pistol  and the expert’s opinion that they could  have  been fired from a revolver should not have been accepted as, even according  to him, such revolvers with eight  chambers  were rare.   It  has also been argued that the  evidence  of  the expert could not have been accepted because he did not  take photographs for the purpose of comparing the land and groove markings on the bullets and contended himself by their  com- parison under a "comparison microscope". We  do not think there is any real basis for this  argument. Even  if it were assumed for the sake of argument  that  the crime  revolver bad only six chambers and  an  eight-chamber

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revolver  was  not  available  for  the  commission  of  the murders,  there  was nothing to prevent the  appellant  from reloading  the revolver after firing the first two shots  on hearing  which Smt.  Nagamal (P.W.1) came from threshold  of her  bed  room  to the drawing hall.   Ramiah  (P.W.23)  has stated  that  if the person using the revolver bad  been  an expert, he would have required about a minute to reload  it. The prosecution has led satisfactory evidence to prove  that the  appellant was an expert who had taken regular  training in the use of firerms and had passed it with credit.  If  it would  take  a minute for an expert to reload  all  the  six chambers,  it  would  have  taken less  than  that  time  in replacing  the two cartridges which were used in  the  first two  shots.  As it is, the evidence on the record  does  not exclude  the  possibility of such a reloading, and  when  an assasin  who  has received training in the  use  of  firearm trespasses  at night into the house of his enemies with  the intention  of murdering them, it would be quite natural  for him  to replace the discharged cartridges.  Much  would  not therefore turn on the question whether the appellant used  a six  or an eight-chamber revolver in the commission  of  the crime In  support of his argument regarding examination under  the comparison  microscope without the aid of  photographs,  Mr. Anthony has placed reliance on The State of Gujarat v.  Adam Fateh Mohmed Umativa and others(2).  In that case the expert did  not  take photographs of the misfired  cartridges,  and admitted that the photographs were necessary for comparison. In  that context this, Court made a reference  to  Burrad’s, "The  identification of Firearms and  Forensic  Ballistics", 3rd edition, 1956, page, 173, where it has been stated  that any  evidence  of  identification Which  is  unsupported  by photographs cannot be regarded as being anything morel  than an expression of opinion, and held that it did not establish that the test cartridges and the empty cartridges were fired from  the  same weapon or that the  misfired  cartridge  was fired from the same weapon.  That was therefore a  different case  which has decided on its own facts.  It  also  appears that  there  was no evidence in that case to show  that  the comparison   had  been  with  the  help  of   a   comparison microscope.   The evidence of the expert therefore  suffered from an inherent infirmity and was not satisfactory. Counsel  for  the appellant however tried to refer  to  some observations   from   Hatcher’s   "Fireams    Investigation, Identification and Evidence" for the purpose of showing  the importance   of   photography  and  the  use   of   enlarged photographs  in  such cases.  Hatcher has  devoted  a  whole chapter  to photography in investigation of firearms  crimes and (1)  [1971] 3 S.C.R. 208. 705 while  discussing the history of firearms identification  he has pointed out the reasons why consideration importance was given  to, such photographs for the visual  satisfaction  of the  Judge  and  the  jury.   But  while  referring  to  the importance   of  photographs  taken  directly  through   the comparison  microscope,  he has devoted a paragraph  to  the decline  in the use of micro comparison photographs and  has gone on to state as follows,-               "There  are also photographic reasons for  the               almost  entire abandonment of this  method  of               presentation.  Unfortunately, the lenses of  a               camera  do  not adjust in the,  way  that  the               human eye adjusts.  The depth of field is  ex-               tremely  limited.   Unlike  the  human  eve  a

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             photographic  film has far less  tolerance  to               variations   in  lighting.   Photographs   are               almost always unsatisfactory to the Expert who               has  made  a positive comparison  through  the               microscope.  You photograph only what you  can               see  at  one single time.  The  camera  cannot               move  along the surface of bullets to pick  up               identity after identity."               The  position  has been stated as  follows  in               section  178 (page 260) of Ehrlich and  Jones,               "Photographic Evidence", 1967 edition.,-               "Usually more can be seen through a microscope               than  can be photographed through  it.   There               are  several reasons for this  superiority  of               visual  perception.  In the first  place,  the               eye looking through a microscope can scan  the               field and change focus at different points  of               the field.  In, addition, the eye can see  any               movement present, and, with the aid of  mental               "filling  in",  is able to perceive  form  and               detail    that    may    not    be    recorded               photographically.   Moreover, the lens  system               of  the microscope produces- a curved  fields;               this  works out nicely for the eye  since  the               retina  is curved, but does not work  so  well               photographically since the film plane is flat.               Due  to  this latter defect, not  all  of  the               field will be photographed to the same  degree               of  sharp  focus, and some distortion  may  be               produced in the photograph." It cannot therefore be doubted that a comparison  microscope is  the  most  important and  most  widely  used  scientific instrument  in comparing the crime cartridge with  the  test cartridge.   Such microscope are of various types  but  they have  been  described as follows, in Volume I  of  Mathews’s "Firarms Identification" at page 38,-               "A comparison microscope consists  essentially               of two compound microscopes, having  identical               optical  system,  so that they give  the  same               magnification,   connected   by   an   optical               "bridge"  containing a combination  of  prisms               such that by viewing two separate objects (one               under   each  microscope)  through  a   single               eyepiece  the two objects may be  compared  by               bringing  the  images of parts  of  each  into               juxtaposition." It  has further been stated that when the desired  condition is attained for purpose of comparison, the bullets are  said to be "matched", and correct opinion can be given thereon. 706 It  is true that there his been considerable  difference  of opinion        amongst  investigators regarding the  use  of photographs in a court for         the      purpose       of illustrating the matching of the markings, and while it  may be  that microscopic photographs, when taken with  due  care and in    the best of conditions, may enable the evidence to be placed on the         record in a visible form, it cannot be denied that a court would not be     justified         in rejecting  the  opinion of an expert who  has  examined  the markings  under  the comparison microscope  simply  for  the reason  that  he has not thought it necessary  to  take  the photographs. It is therefore       not  possible for  us  to reject   the   exidence  of  Ramuiah  (P.W.  23)   who   has categorically  stated  that  he had compared  the  land  and grovee markings on the bullets under a comparson microscope,

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simply because he  did  not think it necessary to  take  the photographs.      It  has  next  been  argued by  Mr.  Anthony  that  the appellant could     not  possibly have committed the murders as he had written a letter to      the  Magistrate informing him that he was involved in two motor-cycle  accidents    in 1948  and 1963, three car accidents in 1906, 1970 and  1974. and had been injured in 1969 when a constable stamped on his leg, and had lost his vision in the accident etc.  Reference in  this connection has also been made to the  statement  of the  Investigating  Officer  showing that  the  accused  was brought  to the Court of Session by supporting him  with  an arm,  and  to the fact that he found by the police  in.  the Sarojini  Eye Hospital after the present incident.  We  find that  a similar argument was urged for the consideration  of the trial court          as  well as the High Court, but  it was rejected for satisfactory reasons. Sreenivasan (P.W. 16) who  was  the  Inspector incharge  of  the  Civilian   Rifle Training Centre, at Nagercoil, has stated that the appellant was  one of the members of the Centre who received  training under  him  from  January  2, 1972 to March  12,  1972,  and passed the test having   secured a high percentage of marks. The witness has stated that the appellant was in a fit state of health, that his vision was all right, and that he  could shoot the rifle by triggering it only with his left hand. He has further stated that the appellant used to take aim  with his left eye and press the trigger with his left  forefinger and  that  a person who knows bow to fire a rifle  can  also fire  a revolver. There is therefore no occasion for  us  to re-examine  the  finding  of the two  courts  regarding  the ability of the appellant to commit the crimes. An  attempt  has also been made to argue that there  was  no justification for the High Court to take into  consideration the evidence) regarding the movement of the appellant  after the  occurrence and that be did not in fact abscond and  his statement that he had gone to, Madras to see off  Subramania Thevar’s  son on September 20, 1974, as he was  leaving  for America,  should have been accepted.  This argument is  also of  no  consequence  in view of the  detailed  statement  of Deputy Inspector Balasubramanian (P.W. 26) who was placed on special duty in the months    of   September,  October   and November, 1974, to trace out the appellant. The  prosecution has  examined  some  other  witnesses  also  regarding   the movements  of  the  appellant, but  even  the  statement  of Balasubramaniam (P.W. 26) is sufficient to justify the  High Court’s view in the matter. 707 The prosecution has led evidence to prove the motive for the crime,  and it has been argued that the High Court erred  in taking the view that the dispute in regard to the resale  of the coconut tope was a "burning issue" between the appellant and  the deceased at the time of the incident.  Even if  the other  evidence on the record is left out of  consideration, there  can be no doubt that the deceased had  purchased  the coconut tope from the appellant’s brother and the  appellant was not only challenging his possession but was pressing him for  a  resale.   The evidence relating  to  the  civil  and criminal cases between the parties justifies the  conclusion arrived  at  by the High Court which, we have  no  doubt  is essentially correct. It  has  lastly  been  argued  that  although  a  number  of fingerprints were obtained by the Investigating Officer  and others, ’the High Court did not take into consideration  the fact that those prints did not compare with the fingerprints of  the  appellant.  It has been pointed out that  the  High

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Court erred in thinking that the fingerprints of  Varadarain were  got  obtained by the police even  though  the  inquest report  showed that the prints had been taken.  It  is  true that the, evidence on the record goes to show that a  number of  fingerprints  were  obtained during the  course  of  the investigation,  and it may well be that the identity of  the appellant  could not be established on that basis, but  that could not be said to be enough to justify his acquittal when there was overwhelming evidence against him to establish his guilt. It  would  thus  appear that the  learned  counsel  for  the appellant has not been able to advance any such argument  as would justify this Court’s interference with the  concurrent findings  of the trial court and the High Court against  the appellant.  The appeal fails and is dismissed. S.R.                      Appeal dismissed. 708