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PETITIONER: SURENDRA NARAIN @ MUNNA PANDEY

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT:       07/11/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 7TH DAY OF NOVEMBER, 1997 Present:                Hon’ble Mr.Justice M.M.Punchhi                Hon’ble Mr.Justice M.Srinivasan Arvind Kumar)  Adv (Ms. Manisha Bhardwaj) Adv. for Ms. Laxmi Arvind, Advs for the appellant Vishwajit  Singh,   Adv.  for   A.S.Pundir,  Adv.   for  the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: SRINIVASAN.J      This appeal  by special  leave is  directed against the judgment of the High Court of Allahabad confirming the order of conviction  passed by  the III Additional Sessions Judge, Kanpur n  a charge  under Section  302  I.P.C.  against  the appellant and sentence for rigorous imprisonment for life. 2.   The case of the prosecution was as follows:      On April  7, 1977  at about  3.30 P.M. the victim Shree Prakash was  gong in  rickshaw with  is servant  Nanhu Singh (PW-3) followed  by Balkrishan  Bajpai (PW-1) and (PW -2) in another rickshaw  in the  crossing of  Alumandi, Cooperganj, Kanpur within  the area of the police station Anwar ganj. At that time  the appellant  arrived at the spot sitting on the pillon of  a motor  cycle driven by another person, shot the victim with  a pistol and sped away. The witnesses proceeded to the  police station  which was  very near  the  place  of occurrence and lodged  a complaint around 3.45 PM The victim was taken  to the hospital where he was declared dead. While PW 1 stayed at the police station for giving a statement, PW 2 went  to inform  the sister of the victim. The name of the appellant was  mentioned by  PW 1  in the  FIR who could not however give  the name  of the  person who  was driving  the motor-cycle though  he claimed that he could identify him on seeing his  face. The  appellant could not be traced till he surrendered in Court on 13.5.1977 3.   On that  date itself the appellant moved an application before the  C.M.M.Kanpur claiming  that witnesses  were  not known to  him and  that  a test identification parade should be ordered.  The C.M.M.  dismissed it on the ground that the offence being  one exclusively triable by Court of Sessions,

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he could  not pass orders thereon. That order was challenged in the  Court of  Session, Kanpur.  The latter  allowed  the prayer by  order dated 14.6.77 and directed the appellant to be up  for identification. But the identification parade was not held. 4.   The trial  went on and the prosecution examined as many as  nine  witnesses,  including  three  eye  witnesses.  The accused  while  putting  forward  a  case  of  total  denial examined three  witnesses. The trial judge accepted the case of the  prosecution and  found the  accused guilty of murder punishable under  Section 302  I.P.C. On  appeal,  the  High Court confirmed the same. 5.   In  this   appeal,  learned   counsel  has  urged  five contentions -  (1) The  failure of  the police to put up the appellant for  identification parade  inspite of an order of the Court  of Sessions  is fatal to the prosecution inasmuch as the appellant has challenged the claim of PWs 1 to 3 that they knew  his  already.  (2)  The  non-examination  of  the rickshaw pullers  is a vital factor omitted to be considered by courts below; (3) The evidence of PW3 runs counter to the medical evidence  and  deserves  to  be  rejected;  (4)  The ’conduct of  PW 1  after the occurrence was unnatural and he should have  been disbelieved;  (5) There  was no motive for the appellant to commit the offence. 6.   We will  presently consider  them seriatim.  The  first contention is pressed rather strongly by the learned counsel on the  basis of  an observation made in Shri Ram Versus The State of  U.P. (1975)  3 S.C.C.  495. The Court said in that case that  the circumstance that the accused had voluntarily accepted the  risk being  identified in  a  parade  but  was denied that  opportunity  was  an  important  point  in  his favour. In  that case  the trial court was influenced by the aforesaid circumstance  and acquitted the accused. On appeal the High  Court rejected  the  same  as  inconsequential  by observing that   oral  testimony of  witnesses, eve  if  not tested by  holding an identification parade, can be made the basis of  conviction if  the request  made by the accused is groundless and  the witnesses  knew the accused prior to the occurrence. This  Court while  holding that  no rule  of law required that  the oral  testimony of  a witness  should  be corroborated by  evidence of  identification and  that  such evidence is itself a weak type of evidence observed.      "But the  point of  the  matter  is      that the Court which acquitted Shri      Ram was  justifiably influenced  by      the consideration  that  though  at      the earliest  stage  he  had  asked      that the  identification parade  he      held, the demand was opposed by the      prosecution  and   the  parade  was      therefore not held."      Moreover, in  that case  there was  serous infirmity in the testimony  of the  eye witnesses who deposed against the accused and  this Court  found  it  to  be  unrealistic  and unacceptable. 7.   The purpose  and evidentiary  value  of  identification parade have  been considered  in a  number of  case. In Inre Sangiah 49  Cr. L.J.89 Rajamannar, J discussed the matter at length and said thus:      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

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    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 witnesses in      the  Court.   The   fact   that   a      particular  witness  identification      parade  is   only  a   circumstance      corroborative of the identification      in a  Court. If  a witness  has not      identified  the   accused  at   the      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  wh ch  confers a right on      the  accused  to  demand  that  the      investigation should  be  conducted      in a  particular way. As M.W.N. 427      "Identification  Parades  are  held      not  for   the  purpose  of  giving      defence advocates  material to work      on,  but   in  order   to   satisfy      investigating officers  of the bone      fine of  the prosecution witnesses"      In AIR  1948 Lah  303  Blacker,  J.      held thus:      "Whenever   an    accused    person      disputes   the   ability   of   the      prosecution witness  to    identify      him, the  Court  should  direct  an      identification parade  to  be  held      save  in   the   most   exceptional      circumstances"      With great  respect to  the learned      Judge  I  am  unable  to  find  any      provision of  law which compels the      Court the so direct a parade. It is      not clear from the judgment whether      the  Court  making  an  enquiry  or      holding the  trial should  stay its      proceedings and  direct the  In may      opinion  it   does  not  take  into      account the  important fact that an      identification parade  is a part of      the investigation and once the case      has reached the stage of an enquiry      before    the     Magistrate    the      investigation is at an end all that      takes place  in Court  form part of      the record of the case.      Now  it   is   quite   clear   that      statements     made      at      an      identification   parade   are   not      substantive evidence  at the trial.      It must be very embarrassing to the      Magistrate making  an enquiry    to      listen to  statements made  by  the      witnesses  at   an   identification      parade which  will not  be evidence      at the  enquiry. Further  it is not

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    incumbent  on  the  prosecution  to      examines all the witnesses cited by      them and all these who took part in      the identification  parade. It will      then mean  that the  Magistrate has      heard the  statement  of  witnesses      who will  not be  examined  at  the      enquiry. If on the other hand it is      suggested    that    a    different      Magistrate    should    hold    the      identification parade it appears to      me  that   there  is  no  provision      whatever for  such a  course when a      particular Magistrate  is seized of      the case.  The observations  In AIR      1946  Lah   48  are   rally  obiter      because  that  case  dealt  with  a      regular    appeal    against    the      conviction by  a Court  of Session.      In that  case  the  Magistrate  who      made   the   enquiry   refused   an      application  by   the  accused   to      arrange   for   an   identification      parade  on  the  following  grounds      viz. that  the witnesses  knew  the      accused   before   and   that   the      application was  made only  for the      purpose  of   delay.  The   learned      Judges held  that the reasons given      by the  magistrate were  not sound.      It is  true that  they went  on  to      observe  that  should  any  serious      question of  identity arises during      the course of the trial the ability      of the  witnesses to  identify  the      accused may  be put  to tost before      the trial.  With great respect I do      not agree.  If a case is posted for      trail any test as to the ability or      creditability  of   the   witnesses      should be decided only in Court and      not by  means of  an identification      parade, the  proceedings  at  which      will not form part of the record of      the Court. 8.   In Kanta  Prashad Versus  Delhi Administration AIR 1958 SC  350,   this  Court   held  that  failure  to  hold  test identification  parade   does  not   make  inadmissible  the evidence of  identification in  Court and that the weight to be attached  to such  identification is  a  matter  for  the Courts of  fact and  it is  not for  the  Supreme  Court  to reassess  the   evidence  unless   exceptional  grounds  are established necessitating such a course. 9.   In State versus Dhanpat AIR 1960 Patna 582 cited before us, it  was held  that if the witnesses do not give the name of  any   accused,  it   is  necessary   to  hold   a   test identification parade  and where a witness gives the name of the accused,  ordinarily no  such parade  is necessary.  The Court however  said that if any accused hold out a challenge and says  that he will not be identified by the witnesses or makes  a   prayer  that   he  should  be  put  upon  a  test identification parade,  such a parade must always be held in order to meet the challenge. The Court also said that if the accused was  arrested on  the spot  and was  in custody from that time upto the date of trial, there could be no question

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at all about his identity. 10.  A Division Bench of the Allahabad High Court dealt with the entire  subject of  identification Parade  in Ashrafi  & Anr. Versus  The State  1961 (1)  Crl. L. J.340. It was held that the  identification of  an accused who is already known to the identifier is futile. 11.  In Budhsen  & Anr.  Versus State  of U.P. AIR 1970 S.C. 132 it  was held  that identification  parades belong to the investigation stage  and generally  held  with  the  primary object  of   enabling  the  witnesses  to  identify  persons concerned in  the offence  who were  not previously known to them, The  legal effect of identification parades was stated as follows:      ".....that certain  person are  brought to jail or some other place  and makes  statements either express or implied that a  certain individuals  whom they point out are persons whom they  recognized as having been concerned in the crime. They do not constitute substantive evidence" 12.  In Tek Chand Versus State AIR 1965 Punjab 146, cited by learned counsel,  a Division Bench of  the Punjab High Court held that  the accused cannot compel the prosecution to hold their identification  during the  investigation and there is no law  or procedure  under which  the Magistrate could pass such an  order. The  Bench proceeded  to hold that if such a prayer is  made by  the accused  and the prosecution opposes the same,  it exposes  the witnesses  of identification to a genuine criticism  that they  would probably not be label to identify the offenders correctly if the parade was held. The Court held  that when  the request for identification parade was refused for no valid reason and the court identification was made long afterwards, the identification evidence in the court could not be relied on, unless it was a corroborated. 13.  In Jadunath Singh Versus State of H.P. AIR 1971 S.C.363 a Bench of Three Judges this Court held that failure to hold test identification  of accused  is not  fatal in all cases. The Bench  referred to the case law on the subject including the decision  of the Madras High Court in the Sangiah’s case and held as follows:      "It seems  to us  that  the  reason      given by  the pubic  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  the chargesheet had been      received and  the accused  had been      named by  P.Ws was no justification      for not  having  ordered  the  test      identification. But on the facts of      this case  it is  clear that PW2 at      least  knew   that   accused   from      before. As regards PW 3 although he      claims to  have known  the accused,      it is  clear that  his knowledge of      the accused  was very  scant and if      had not  been for  the evidence  of      PW2  we   would  not   have  placed      reliance on the evidence of PS 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.415d  as      follows:

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    "In criminal  cases it  is improper      to identify  the accused  only when      in  the  dock:  The  Police  should      place him,  before hand,  with  the      orders, and ask the witness to pick      him out.  Nor should  the witness e      guided in  any way,  nor asked  "is      that the  main"?" We  consider that      the same  is the  law in  India, if      the identify 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.      The same Bench dealt with the State of U.P. Versus Raju AIR 1971  S.C. 708  and held  that in the absence of request from accused,  State is  not bound  to  hold  identification parade when they were arrested on the spot. 14.  In Golam  Majibuddin Versus  State of  West Bengal 1972 Crl. L. J. 1342, another Bench of three Judges of this Court held that  when the  witness stated that he already knew the accused before the day of occurrence and it was not the case of the  accused  that  he  was  not  known  to  the  witness previously, test  identification would serve no purpose. The same Bench  had not  consider a  converse case in "Rameshwar singh Versus  State of  J &  K AIR  1972 S.C. 102. The Bench stated the law thus:      "Before dealing  with the  evidence      relating to  identification of  the      appellant it may be remembered that      the  substantive   evidence  of   a      witness is  his evidence  in  Court      but when  the accused person is not      previously  known  to  the  witness      concerned then  the  identification      of the  accused by the witness soon      after the  former’s  arrest  is  of      vital   importance    because    it      furnishes to  investigating  agency      an assurance that the investigation      is  proceeding  on  right  line  in      addition   furnishing corroboration      of the  evidence to be given by the      witness  later   in  Court  at  the      trial. From  this point  of view it      is a  matter  of  great  importance      both for  the investigating  agency      and for  the accused and a fortiori      for the  proper  administration  of      justice  that  such  identification      delay  after   the  arrest  of  the      unreasonable delay after the arrest      of the  accused and  that  all  the      necessary      precautions      and      safeguards are effectively taken so      that the  investigation proceeds on      correct line for punishing the real      culprit. It  would, in addition, be      fair to  the witness  concerned who      was  a   stranger  to  the  accused      because in  that event  the chances      of his  memory fading  are  reduced      and he  is required to identify the      alleged  culprit   a  the  earliest

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    possible  opportunity   after   the      occurrence. It  is  thus  and  thus      alone that  justice and  fair  play      can be  assured both to the accused      and   to   the   prosecution.   The      identification    during     police      investigation, it may be re-called,      is not  substantive evidence in law      and  it   can  only   be  used  for      corroborating   and   contradicting      evidence of  the witness  concerned      as    given     in    Court.    The      identification          proceeding,      therefore,  must  be  go  conducted      that the  evidence with  regard  to      them  when   given  at  the  trial,      enable the  Court  safely  to  form      appropriate judicial  opinion about      its  evidentiary   value  for   the      purpose   of    corroborating    or      contradicting the  statement in the      Court of the identifying witness."      On the facts of the case, it was found that the name of the accused  was not  mentioned in the FIR. This Court found the witnesss  to be  untruthful. This  Court found  that the High Court  had erroneously  relied upon statements recorded under Section  161 Cr. P.C. for the purpose of corroboration of certain  statement made  in Court.  On  that  basis,  the judgment of  the High  Court was set aside and the appellant was acquitted. 15.  In Dharamvir  Versus State of M.P. (1974) 4 S.C.C. 150, it was  held that no identification parade was called for as the victim mentioned the names of the accused in the FIR. 16.  In Mahtab  Singh  versus The State of M.P. (1975) 3 SCC 407 the  Bench held  that the need for identification parade arises only if the assailants are not previusly known to the witnesses. It  is to  be noticed  that it  is the  very same Bench which dealt with "Shri Ram’s case (supra) relied on by the appellant and referred to by us in the beginning. 17.  In Harbhajan  Singh Versus State of J & K AIR 1975 S.C. 1814 a Bench of Three Judges followed Jadunnath Singh’s case (supra) and  held that  failure of  investigating officer to hold identification parade is not necessarily fatal. 18.  In Kanan  Versus State  of Korala,  AIR 1979 S.C. 1127, the Court  held that  where a  witness identifies an accused who is  not known to hm in the Court for the first time, his evidence is  absolutely valuless  unless there  has  been  a previous test  identification parade  to test  his power  of observation. 19.  In Narendra  Singh Versus State of H.P. (1987) 2 S.C.C. 236, the attack on deceased was witnessed by an uninterested and independent  witness who  knew the accused already. That witness snatched  from the accused the Kirpan and the turban when he  escaped  and  deposited  the  same  in  the  police station. the  FIR was  lodged  within  15  minutes  and  the accused was  named therein. The Court held that the question of identification was of no consequence. 20.  In Romesh  Kumar Versus State of Punjab, 1993 Crl. L.J. 1800,  a   Bench  of   Two  Judges   held  that  holding  of identification parade  was not  necessary as the murder took place in  the rickshaw  and the  rickshaw puller stated that the knew  the accused and that conviction based primarily on his testimony was proper. 21.  On a  perusal of the above rulings it is clear that the failure to  held the test identification parade even after a

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demand by the accused is not always fatal and it is only one of the  relevant factors  to  be  taken  into  consideration alongwith the  other evidence on record. if the claim of the ocular witnesss  that they knew the accused already is found to be true, the failure to hold a test identification parade is inconsequential. 22.  Turning to the facts of this case, it is seen that PW 1 had mentioned  the name  of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW  2 and  PW3 also  knew the accused previously. The crucial  factor is  that  the  accused  previously.  The crucial factor  is that  the  accused  was  related  to  the deceased as  a son   his "Sala" and PW 1 was also related to the deceased. The accused had never denied the relationship. As the  trial Judge has observed, " there is not a scintilla of evidence"  that PW  1 had  a grudge  against the accused. There is  also no evidence that the wife of the deceased had any enmity  with the  accused. She  would not have allowed a false case  to be  foisted on her brother’s son. The accused was not  traceable from  7.4.77 to  13.5.77. On the facts of the case, his application for the test identification parade on his  surrender after  such a long time does not appear to be bone  fide. In  any event,  the  evidence  on  record  as accepted by  the Courts  below is  sufficient to  prove  the guilt of  the accused.  Further the  point does  not seem to have been  argued before  the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold  a test  identification parade in spite of  an order passed  by   the  Sessions   Court  is   not  fatal  to  the prosecution. 23.  The  second   contention  is  without  any  merit.  The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted. 24.  The third  contention is  based on the statement of PW3 in his  deposition that Shri Prakash sustained injury in the back whereas  the medical  report showed  that  two  gunshot wounds were  in the  left side chest upper part and inner to nipple. Another  gunshot wound was found in the spine medial part in thoracic region. The fact that PW3 was travelling in the same rickshaw as his master, the deceased is established beyond doubt.  His clothes  which got  stained by  the blood which oozed  out of the wounds of the deceased were taken by the investigating  officer. The High Court has discused this aspect of  the matter  at some  length and we agree with the reasoning of  the High  Court. As  pointed out  by the  High Court the  witness having seen the exit wound on the back of the deceased  bleeding, thought that he had been  hit in the back. Hence we reject this contention. 25.  The fourth contention is equally without any substance. The argument  is that  PW1 would  have in the first instance taken the  victim to  the hospital instead of police station and in  any  event  would  have  accompanied  PW  3  to  the hospital. According  to the learned counsel the fact that PW 1 stayed  in the  police station  to given a statement after sending  PW3   and  the   victim  to   the  hospital  throws considerable suspicion  on his credibility. We are unable to accept this  contention. The  evidence shows that the victim died immediately  after the  firing. The witness thought fit to stay  back at  the police  station to  get his  complaint registered. Here  again, the  reasoning of the High Court is unassailable and we agree with the same. 26.  The fifth  and the  last contention  that there  was no

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motive for  the appellant  t  commit  the  offence  is  also without any merit. There is ample evidence on record to show that there  was a  dispute between  the  appellant  and  the deceased which  romainod unsettled.  The way  in  which  the deceased  was  killed  shows  that  the  appellant  had  the intention to  commit the  offence of  murder and accordingly carried out  the same.  But it is well settled that when the fact of  murder has been proved. there is necessity to prove motive. 27.  In sum,  the appeal  has to  suffer a  dismissal and is accordingly dismissed.