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CASE NO.:

Appeal (crl.) 1156-57 of 2001

PETITIONER:

DANA YADAV @ DAHU & ORS.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 13/09/2002

BENCH:

UMESH C. BANERJEE & B.N. AGRAWAL

JUDGMENT:

JUDGMENT

2002 Supp(2) SCR 363

The Judgment of the Court was delivered by

B.N. AGRAWAL, J. The appellants along with accused Rajendra Yadav and Madan

Dusadh were convicted by the trial court under Sections 302/149 of the

Penal Code and sentenced to undergo imprisonment for life. They were

further convicted under Sections 307/149 and 436 of the Penal Code and

sentenced to undergo rigorous imprisonment for a period of ten years and

seven years respectively.The sentences were, however, directed to run

concurrently. The other five accused were acquitted by the trial court. On

appeals being preferred, convictions and sentences of the appellants have

been upheld by the High Court whereas accused Rajendra Yadav and Madan

Dusadh have been acquitted.

The prosecution case, in short, is that the informant Shambhu Prasad Komal

(PW.14), who was worker of Revolutionary Group of Forward Bloc, along with

his companions was undertaking a padyatra from 22nd April, 1983 to 27th

April, 1983 which was led by their leader Balmukund Rahi. In the evening of

25th April, 1983 they held a meeting at Guraru and after the same was over

PW-14 along with 150 workers went to Village Karma for night halt where

they stayed in the house of one Ramratan Yadav (PW.12) and after taking

dinner when some of them were sitting inside the Baithaka and Ors. outside,

at about 9-9.15 P.M., they heard slogans coming from towards South of the

village. In the meantime, nearly 150-200 members of Naxalite group came,

surrounded the house of PW-12, amongst whom accused Dara Singh @ Kamdeo

Yadav and appellant Bindeshwar Yadav were carrying guns and pointing

towards the prosecution party saying "be careful and raise your hands"

whereupon out of fear some of the members of the prosecution party went

inside the house and closed the door from within. Thereafter, they heard

sounds of bullet firing and bomb explosion and the house in which they were

hiding themselves was set on fire. When the members of the prosecution

party found that they were exposed to the risk of being roasted alive as a

result of fire, they came out of the house and at that point of time the

accused persons surrounded them and took them to the south-eastem direction

where they were forced to sit. Out of the members of the prosecution party,

Balmukund Rahi, Chandradeo Yadav and Ganesh Yadav (PW.l) were taken to

eastern direction by the appellants Bindeshwar Yadav and Bhuvneshwar Bind

besides accused Dara Singh, Madan Dusadh, Dhudheshwar Dusadh and Gupta

Yadav. Out of them appellants Bindeshwar Yadav and Bhuvneshwar Bind apart

from accused Dara Singh and Dhudheshwar Dusadh were said to have cut

throats of Balmukund Rahi and Chandradeo Yadav with pasuli whereas PW-1 was

inflicted injuries on the head by phrasa but he managed to escape.

Appellants Dana, Rambilas, Doman and Ramchandra along with eight other

named accused persons and several other unknown were alleged to have

surrounded other members of the prosecution party and assaulted Bal Govind

(PW.8), Chandrika (PW.4) and Ramratan Yadav (PW.12) who received injuries.

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Thereafter the accused persons took to their heels. Motive for the

occurrence disclosed was that members of the prosecution party had

undertaken padyatra against terror spread by the naxalites. Stating the

aforesaid facts, fardbayan of the informant (PW-14) was recorded by the

Sub-Inspector of Police on the same day at 11 P.M. in the village on the

basis of which formal first Information report was drawn up against 14

named accused persons, including the appellants, excepting Deo Nandan, and

the police, after registering the case, took up investigation, during the

course of which appellant Deo Nandan was also made accused in the case and

on completion thereof, submitted charge sheet, on receipt whereof the

learned Magistrate took cognizance and committed 14 accused persons,

including the appellants, to the Court of Sessions to face trial.

Defence of the accused persons, including the appellants, was that they

were innocent and had no complicity with the crime, but were falsely

implicated.

During trial, the prosecution examined 15 witnesses in all and several

documents were exhibited whereas defence failed to adduce any evidence.

Upon the completion of trial, the learned Additional Sessions Judge

convicted the accused persons, as stated above, and the High Court upheld

the convictions and sentences of the seven accused and acquitted two of

them, as mentioned above. Hence these appeals by special leave. Out of

seven appellants, name of appellant no. 5 Bhuvneshwar Bind was deleted, as

such we are required to consider in these appeals cases of six appellants.

Shri Prabha Shankar Mishra, learned Senior Counsel appearing on behalf of

the appellants in support of the appeals raised several points. It has been

submitted that Deo Nandan (appellant No. 3) was not named in the first

information report and neither known to the informant nor to any of the

prosecution witnesses and although no test identification parade was held,

he was identified in court for the first time, as such no reliance should

have been placed upon such an identification more so when there was no

exceptional circumstance to place reliance upon his identification for the

first time made in Court without the same being corroborated by previous

identification in the test identification parade or any other evidence.

Section 9 of the Evidence Act deals with relevancy of facts necessary to

explain or introduce relevant facts. U says, inter alia, facts which

establish the identity of any thing or person whose identity is relevant,

in so far as they are necessary for the purpose, are .relevant. So the

evidence of identification is a relevant piece of evidence under Section 9

of the Evidence Act where the evidence consists of identification of the

accused at his trial. The identification of an accused by a witness in

court is substantive evidence whereas evidence of identification in test

identification parade is though primary evidence but not substantive one

and the same can be used only to corroborate identification of the accused

by a witness in court. This Court has dealt with this question on several

occasions. In the case of Vaikuntam Chandmppa and Ors. v. State of Andhra

Pradesh, AIR (1960) SC 1340 which is a three Judge Bench decision of this

Court, Wanchoo, J., with whom A.K. Sarkar and K. Subba Rao, JJ. agreed,

speaking for. the Court, observed that the substantive evidence of a

witness is his statement in court but the purpose of test identification is

to test that evidence and the safe rule is that the sworn testimony of

witnesses in court as to the identity of the accused who are stranger to

the witnesses, generally speaking, requires corroboration which should be

in the form of an earlier identification proceeding or any other evidence.

The law laid down in the aforesaid decision has been reiterated in the

cases of Budhsen and Anr. v. State of U.P., [1970] 2 SCC 128, Sheikh Hasib

alias Tabarak v. The State of Bihar, [1972] 4 SCC 773, Bollavaram Pedda

Narsi Reddy and Ors. v. State of Andhra Pradesh, [1991] 3 SCC 434, Ronny

alias Ronald James Alwaris and Ors. v. State of Maharashtra, [1998] 3 SCC

625 and Rajesh Govind Jagesha v. State of Maharashtra, [1999] 8 SCC 428. It

is well settled that identification parades are held ordinarily at the

instance of the investigating officer for the purpose of enabling the

witnesses to identify either the properties which are the subject matter of

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alleged offence or the persons who are alleged to have been involved in the

offence. Such tests or parades, in ordinary course, belong to the

investigation stage and they serve to provide the investigating authorities

with material to assure themselves if the investigation is proceeding on

right lines. In other words, it is through these identification parades

that the investigating agency is required to ascertain whether the persons

whom they suspect to have committed the offence were the real culprits.

Reference in this connection may be made to the decisions of this court in

the cases of Budhsen, (supra), Sheikh Hasib (supra), Rameshwar Singh v.

State of Jammu & Kashmir [1972] l SCR 627 and Ravindra alias Ravi Bansi

Gohar v. State of Maharashtra and Ors., [1998] 6 SCC 609.

It is also well settled that failure to hold test identification parade,

which should be held with reasonable despatch, does not make the evidence

of identification in court inadmissible rather the same is very much

admissible in law. Question is what is its probative value? Ordinarily

identification of an accused for the first time in court by a witness

should not be relied upon, the same being from its very nature, inherently

of a weak character, unless it is corroborated by his previous

Identification in the test identification parade or iny other evidence. The

purpose of test identification parade is to test the observation, grasp,

memory, capacity to recapitulate what a witness has seen earlier, strength

or trustworthiness of the evidence of identification of an accused and to

ascertain if it can be used as reliable corroborative evidence of the

witness identifying the accused at his trial in court. If a witness

identifies the accused in court for the first time, the probative value of

such uncorroborated evidence becomes minimal so much so that it becomes, as

a rule of prudence and not law, unsafe to rely on such a piece of evidence.

We are fortified in our view by catena of decisions of this Court in the

cases of Kanta Prashad v. Delhi Administration, AIR (1958) SC 350,

Vaikuntam Chandrappa (supra), Budhsen (supra), Kanan and Ors. v. State of

Kerala, [1979] 3 SCC 319, Mohanlal Gangaram Gehani v. State of Maharashtra,

[1982] l SCC 700, Bollavaram Pedda Narsi Reddy (supra), State of

Maharashtra v. Sukhdev Singh and Anr., [1992] 3 SCC 700, Jaspal Singh alias

Pali v. State of Punjab, [1997] l SCC 510, Raju alias Rajendra v. State of

Maharashtra, [1998] l SCC 169, Ronny alias Ronald James Alwaris, (supra),

George and Ors. v. State of Kerala and Anr., [1998] 4 SCC 605, Rajesh

Govind Jagesha, (supra), State of H.P. v. Lekh Raj and Anr., [2000] l SCC

247 and Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, [2000] l

SCC 358.

Apart from the ordinary rule laid down in the aforesaid decisions, certain

exceptions to the same have been carved out where identification of an

accused for the first time in court without there being any corroboration

whatsoever can form the sole basis for his conviction. In the case of

Budhsen (supra) it was observed:-

"There may, however, be exceptions to this general rule, when for example,

the court is impressed by a particular witness, on whose testimony it can

safely rely, without such or other corroboration."

In the case of State of Maharashtra (supra), it was laid down that if a

witness had any particular reason to remember about the identity of an

accused, in that event, the case can be brought under the exception and

upon solitary evidence of identification of an accused in court for the

first time, conviction can be based. In the case of Ronny alias Ronald

James Alwaris and Ors. (supra), it has been laid down that where the

witness had a chance to interact with the accused or that in a case where

the witness had an opportunity to notice the distinctive features of the

accused which lends assurance to his testimony in court, the evidence of

identification in court for the first time by such a witness cannot be

thrown away merely because no test Identification parade was held. In that

case, the concerned accused had a talk with the identifying witnesses for

about 7/8 minutes. In these circumstances, the conviction of the accused,

on the basis of sworn testimony of witnesses identifying for the first time

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in court without the same being corroborated either by previous

identification in the test identification parade or any other evidence, was

upheld by this Court. In the case of Rajesh Govind Jagesha (supra), it was

laid down that the absence of test identification parade may not be fatal

if the accused is sufficiently described in the complaint leaving no doubt

in the mind of the court regarding his involvement or is arrested on the

spot immediately after the occurrence and in either eventuality, the

evidence of witnesses identifying the accused for the first time in court

can form the basis for conviction without the same being corroborated by

any other evidence and, accordingly, conviction of the accused was upheld

by this Court. In the case of State of H.P. (supra), it was observed that

"..test identification is considered a safe rule of prudence to generally

look for corroboration of the sworn testimony of witnesses in court as to

the identity of the accused who are strangers to them. There may, however,

be exceptions to this general rule, when, for example, the court is

impressed by a particular witness on whose testimony it can safely rely

without such or other corroboration." In that case, laying down the

aforesaid law, acquittal of one of the accused by High Court was converted

into conviction by this Court on the basis of identification by a witness

for the first time in court without the same being corroborated by any

other evidence. In the case of Ramanbhai Naranbhai Patel and Ors. (supra),

it was observed "It, therefore, cannot be held, as tried to be submitted by

learned counsel for the appellants, that in the absence of a test

identification parade, the evidence of an eyewitness identifying the

accused would become inadmissible or totally useless; whether the evidence

deserves any credence or not would always depend on the facts and

circumstances of each case." The Court further observed ".the fact remains

that these eyewitnesses were seriously injured and they could have easily

seen the faces of the persons assaulting them and their appearance and

identity would well remain imprinted in their minds especially when they

were assaulted in broad day light." In these circumstances, conviction of

the accused was upheld on the basis of solitary evidence of identification

by a witness for the first time in court.

In the present case, appellant No.3-Deo Nandan was undisputedly not named

as one of the accused in the first information report, though names of

several other accused persons were enumerated therein. In statement made

before the police, no prosecution witness has named him. He was named in

court by Balroop Prasad (PW 3), Chandrika (PW 4), Bal Govind (PW 8) and

Shambhu Prasad Komal (PW 14) but PW-4 and PW-8 identified another person as

this appellant and thus these two witnesses wrongly identified this

appellant. So far the other two witnesses, namely, PW-3 and PW-14 are

concerned, though they have identified this appellant in court, but they

did not disclose his name before the police. There may be a case where an

accused is known to a prosecution witness who did identify him at the time

of the occurrence but for manifold reasons, he could not have divulged his

name to the informant before the first information report was lodged. One

of the reasons may be that such a witness could not meet the informant

before the first information report was lodged and no sooner, after lodging

of the first information report, without any reasonable delay, when he was

examined by the police, name of the accused was disclosed. The other reason

may be where such a witness received injuries during the course of the

occurrence and became unconscious, as such he could not get opportunity to

disclose name of the accused to the informant before the lodging of the

first information report and no sooner he regained consciousness, name of

the accused was disclosed by him in his statement made before the police.

These instances are by way of illustrations and cannot be exhaustive. In

view of these and similar other circumstances, it can be said that merely

because the accused was not named in the first information report, though

he was known to some of the prosecution witnesses, no adverse inference can

be drawn against the prosecution for not naming such an accused in the

first information report. Likewise there cannot be an inflexible rule that

if a witness did not name an accused before the police, his evidence

identifying the accused for the first time in court cannot be relied upon.

There may be a case where a witness has received injury during the course

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of occurrence, became unconscious and remained as such for few months while

in the meanwhile, charge sheet was submitted by the police. In such an

eventuality, statement of the witness could not have been recorded by the

police and his Identification for the first time in court may be relied

upon. In the present case, there is no evidence that this appellant was

known to PWs 3 and 14 from before. The occurrence is said to have taken

place on 25th April, 1983 whereas PW-3 was examined after two years in the

year 1985 and PW-14 after more than two and a half years after the

occurrence, i.e., in the month of June, 1986. Thus, it would not be safe to

place reliance on the identification of this appellant for the first time

in court by these witnesses after an inordinate delay of more than two

years from the date of the incident, especially when the identification in

court is not corroborated either by the previous identification in the test

identification parade or any other evidence. This being the position, we

are of the view that the High Court was not justified in upholding

conviction of Deo Nandan (appellant No. 3).

Now, we proceed to consider cases of the other five appellants, namely,

Dana Yadav (appellant No.1), Doman Yadav (appellant No.2), Rambilas Yadav

(appellant No. 4), Bindeshwar Yadav (appellant No. 6) and Ramchandra Yadav

(appellant No. 7). It has been submitted that the informant and the

prosecution witnesses claimed that they knew these appellants from before

the occurrence which was challenged by them, as such on prayer being made

by the appellants, the learned magistrate directed for holding test

Identification parade but curiously enough, no test identification parade

was held. Shri Mishra submitted that in case accused challenges his

identity, it was incumbent upon the prosecution to hold test Identification

parade and on its failure to do so, the court was not justified in

convicting him on the basis of his Identification in court by the

witnesses. Thus, question arises, if an accused denies the fact that he is

known to the prosecution witnesses and challenges his identity by them by

filing a petition in court and making a prayer therein for holding test

Identification parade, what course a court should adopt? The answer to the

question cannot be put in a straitjacket. For example, if an accused is

relation of prosecution witnesses who are residing in the same village, it

can be reasonably inferred that they are known to each other. Likewise

there may be a case where an accused is on visiting terms with the

prosecution witnesses or there are cases between them, and they used to

attend the same in court whereby had occasion to see each other. These

instances are only by way of illustration and in these circumstances, if an

accused challenges his Identification by prosecution witnesses, court

ordinarily would not grant the prayer for holding test Identification

parade. On the other hand, even if accused and prosecution witness are full

brothers or close relations, they may not be knowing each other, i.e.,

where they are residing in different countries or distant places and had

never occasion to meet each other after they attained senses. Likewise in

case of a relation also, a witness may not know the accused by face as he

had never met him and had known him by name only. In these eventualities,

if an accused challenges the Identification and prayer for holding test

Identification is made, the same may be granted.

This question was subject matter of consideration before different High

Courts as well as this Court. It is well settled that no test

identification parade is called for and it would be waste of time to put

him up for identification if the victim mentions name of the accused in the

first information report or he is known to the prosecution witnesses from

before. Reference may be made in this regard to the cases of Dharamvir &

Anr. v. State of M.P., [1974] 4 SCC 150 and Mehtab Singh v. State of M.P.,

[1975] 3 SCC 407. In the case of Sajjan Singh v. Emperor, AIR (1945) Lahore

48 where the Court while examining the case in similar circumstances

observed at page 50 thus:

"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

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the accused himself denies this, it is difficult to see how the claim made

by the witnesses can be used as reason for refusing 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 sufficiently 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 know 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."

In the case of State of U.P. v. Jagnoo, AIR (1968) Allahabad 333, the view

taken by Lahore High Court in the case of Sajjan Singh (supra) has been

referred to with approval.

In the case of In re Sangiah AIR (1948) Madras 113, the decision of the

Lahore High Court in Sajjan Singh's case (supra) was dissented from and

Rajamannar, J. observed 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 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 particular

witness has been able to identify the accused at an Identification parade

is only a circumstance corroborative of the identification in Court. If a

witness has 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 Parkash Chand Sogani v. The State of Rajasthan, an unreported decision

of this Court in Criminal Appeal No. 92 of 1956 decided on 15th January,

1957 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 PW-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 and Ors. v.

The Patna State, AIR (1954) Patna 483, Provash Kumer Bose and Anr, v. The

King, AIR (1951) Calcutta 475 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 PW-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 not 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."

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In Awadh Singh (supra), 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 assert 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 the case of Jadunath Singh and Anr. v. The State of U.P., [1970] 3 SCC

518, a three Judges Bench of this Court after referring to the above said

decisions observed thus at page 523:

"It seems to us that it has been clearly laid down by this Court, in

Parkash Chand Sogani v. The State of Rajasthan (supra), 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 that 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 eye-witnesses 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 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."

This Court in that case, after referring to the evidence adduced on behalf

of the prosecution, came to the conclusion that as accused was known to the

prosecution witnesses from before, identification by witnesses in court was

not affected by the fact that prayer for holding test identification parade

made by the accused on the ground that he was not known to the prosecution

witnesses was not granted and accordingly conviction of the accused was

upheld.

In the case of Surendra Narain alias Munna Pandey v. State of U.P., [l998]

l SCC 76, accused moved an application before the leamed magistrate

claiming that he was not known to the witness and test identification

parade should be ordered. The prayer was rejected on the ground that

offence was exclusively triable by court of Session, as such the learned

Magistrate could not pass any orders thereon. When the said order was

challenged before the sessions court, the prayer was granted and it was

directed that the accused shall be put on the test identification parade

but the said order was not carried out. During the course of trial, the

accused was identified by the witnesses and he was convicted for the charge

of murder and the same having been upheld by the High Court, the matter was

brought to this Court in appeal by special leave. In that case, this Court

referred to the observations of Rajamannar, J. in the case of re Sangiah

(supra) quoted above. It noticed the following observations in the case of

Public Prosecutor v. Sankarapandia Naidu (1932) Madras Weekly Notes 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 bona fides of the prosecution witnesses."

The Court further noticed the observations in the case of Amar Singh v.

Emperor, AIR (1943) Lahore 303 where Blacker, J. held thus:

"Whenever an accused person disputes the ability of the prosecution

witnesses to identify him, the Court should direct an identification parade

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to be held save in the most exceptional circumstances."

In relation to the aforesaid observations of Blacker, J., this Court

observed thus at page 80:

"With great respect to the learned Judge I am unable to find any provision

of law which compels the Court to so direct a parade. It is not clear from

the judgment whether the Court making the enquiry or holding the trial

should itself hold the parade or if the Court should stay its proceedings

and direct the parade to be held before another Magistrate. In my 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

and all that takes place thereafter should take place in Court and 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

ac an identification parade which will not be evidence at the enquiry,

Further It is not incumbent on the prosecution to examine all the witnesses

cited by them and all those who took part In the Identification parade, It

will then mean that the Magistrate has heard the statements 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."

Further, in relation to the case of Sajjan Singh (supra), it was observed

thus at page 80:

"The observations in Sajjan Singh v. Emperor (supra) are really 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 arise during the course of the trial the ability of the witnesses

to identify the accused may be put to test before the trial. With great

respect I do not agree. If a case is posted for trial any test as to the

ability or credibility 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."

The Court further noticed the earlier three Judge Bench judgment of this

Court in the case of Jadunath Singh (supra) where it was held as stated

above that failure to hold test identification parade of the accused is not

fatal in all cases.

In the said case when certain observations by this Court in the case of

Shri Ram v. State of U.P., [1975] 3 SCC 495 were relied upon on behalf of

the accused, the Court while noticing the facts of that case observed in

relation thereto thus at page 79:

"The Court said in that case that the circumstance that the accused had

voluntarily accepted the risk of 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 the oral testimony of witnesses, even 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

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law requires 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 thus:

'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 an identification parade be held, the demand was

opposed by the prosecution and the parade was therefore not held.'

Moreover, in that case there was serious infirmity in the testimony of the

eyewitnesses who deposed against the accused and this Court found it to be

unrealistic and unacceptable."

In the case of State v. Dhanpat Chamara, AIR (1960) Patna 582, it was held

that if a witness does not disclose the name of an accused, it is necessary

to hold a test identification parade, but where he discloses name of the

accused, ordinarily, no such parade is necessary. The Court, however, said

that if an accused holds 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 up to the date of trial, there

could be no question at all about his identity.

In the case of Tek Chand v. State, AIR (1965) Punjab 146, 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 able

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 court could not be relied on, unless it was

corroborated.

In the case of State of U.P v. Rajju, [1971] 3 SCC 174, it was held that in

the absence of request from the accused, the state is not bound to hold

identification parade when they were arrested on the spot.

In the case of Golam Majibuddin v. State of W. B., [1972] 4(N) SCC 39,

another three Judge Bench of this Court held that when the witness stated

that he already knew accused before the day of the occurrence and it was

not the case of the accused that he was not known to the witness

previously, test identification parade would serve no purpose.

In the case of Surendra Narain alias Munna Pandey (supra) after referring

to the aforesaid decisions, this Court observed thus at pages 84-85:

"On a perusal of the above rulings it is clear that the failure to hold the

test identification parade even after a demand by the accused is not always

fatal and it is only one of the relevant factors to be taken into

consideration along with the other evidence on record. If the claim of the

ocular witnesses that they knew the accused already is found to be true,

the failure to hold a test identification parade is inconsequential.

Turning to the facts of this case, it is seen that PW l had mentioned the

name of the accused in the FIR which was given within 15 minutes of the

occurrence. The other two eyewitnesses, PW 2 and PW 3 also knew the accused

previously. The crucial factor is that the accused was related to the

deceased as a son of 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 l had a grudge

against the accused. There is also no evidence that the wife of the

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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 7-4-1977 to 13-5-1977. 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 bona 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."

Thus, we are of the view that in case an accused denies the fact that he is

known to the prosecution witnesses and challenges his identity by filing a

petition for holding test Identification parade, what a court is required

to consider without holding any mini enquiry, is as to whether the denial

is bona fide or a mere pretence and/or has been made with an oblique

motive, to delay the investigation so as to make out a ground for grant of

bail under proviso to Section 167(2) of the Code of Criminal Procedure. In

case court comes to the conclusion that the denial is bona fide, it may

accede to the prayer, but, however, if it is of the view that the same is a

mere pretence, question for grant of the prayer would not arise. However,

grant or refusal of such a prayer unjustifiably would not necessarily enure

to the benefit of either party nor the same would be detrimental to their

interest. In case prayer is granted and test identification parade is held

in which a witness fails to identify the accused, his so called claim that

the accused was known to him from before and identification in court cannot

be accepted. But in case either prayer is not granted or granted but no

test identification parade is held, the same ipso facto cannot be a ground

for throwing out identification of an accused by a witness in court whose

evidence is found to be unimpeachable. Thus the main thrust should be on

answer to the question as to whether the evidence of a witness in court

that he knew the accused from before and correctly identified the accused

is trustworthy or not. If the answer is in the affirmative, the fact that

prayer for holding test identification parade was rejected or if granted,

no such parade was held is not material and would not in any manner affect

the evidence of identification of an accused in court by a witness.

Shri Mishra, learned counsel appearing on behalf of the appellants, by

referring to the evidence of the Investigating Officer (PW 15) pointed out

that on prayer being made on behalf of the appellants, other than Deo

Nandan, order was passed by the Sessions Court in revision for holding test

identification parade, but for reasons best known to the police, same was

not carried out. We find that the said prayer was not made on behalf of any

of the aforesaid five appellants who were named in the first information

report, but was made on behalf of other accused persons, namely, Tilakdhari

and Sehdeo who have been already acquitted. Therefore, for not holding test

identification parade in relation to the other two accused persons referred

to above, the appellants cannot take any advantage therefrom. Learned

counsel, however, could not point out any material from the record in

support of the bold submissions advanced by him that no test identification

parade was held in spite of order passed therefor. It appears as a matter

of fact that no petition was filed on behalf of the appellants challenging

their identification by the prosecution witnesses. The submission, in our

view, has been made in vacuum without their being any foundation for the

same, therefore, we find no option but to reject the same being devoid of

any substance.

Shri Mishra then submitted that the High Court being the first appellate

court, has not considered the evidence of witnesses in the manner in which

it was required under law inasmuch as the evidence of identifying

witnesses, namely, Balroop Prasad (PW 3), Chandrika (PW 4), Bal Govind (PW

8) and Shambhu Prasad Komal (PW 14), does not show that the accused persons

were known to them from before and this being a vital question, the matter

should be remitted to that Court for reappraisal of evidence. It is true

that neither the High Court nor the trial court has considered the evidence

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from that angle. But instead of remitting the appeal to the High Court, we

deem it expedient to ourselves consider the evidence of witnesses in this

regard. Shri Mishra placed before us evidence of only some of the

identifying witnesses but could not point out anything from their

statements to show that the accused persons were not known to them from

before while as a matter of fact in the evidence the witnesses have stated

how and in what manner the accused persons were known to them and their

evidence on this point is unassailable. After referring to the evidence of

only some of the identifying witnesses, Shri Mishra could neither place any

other evidence nor pointed out that there was any infirmity therein to show

that they did not know the appellants from before. This being the position,

learned counsel could not pursue the matter further.

In the backdrop of the aforesaid facts, we now proceed to consider the

evidence of Identification against these appellants. So far as Dana Yadav

(appellant No.1) is concerned, he was named in the first Information report

by the informant and named and identified in court by Suresh Rajwar (PW 6),

Chandradeo Bhagat (PW 9) and Ramratan Yadav (PW 12) besides the informant

Shambhu Prasad Komal (PW 14). PWs 6 and 9 did not name this appellant in

their statement made before the police for which no explanation is

forthcoming. Therefore, it is not safe to place reliance upon

identification made by them for the first time in court after more than two

years from the date of the alleged occurrence. As far as PW-14 is

concerned, he named this appellant in the first Information report. This

witness and PW 12 stated even before the police that this appellant was

arrested by the investigating officer at the place of occurrence

immediately. These two witnesses have consistently supported the

prosecution case disclosed in the first information report, their

statements made before the police as well as court and no infirmity could

be pointed out therein.

Doman Yadav (appellant No.2) was also named in the first information

report. This appellant was not named by PWs 3 and 9 in their statements

made before the police but in court they had named and identified him. No

explanation whatsoever, is forthcoming for non-disclosure of his name

before the police by these witnesses. Therefore, his Identification for the

first time in court by these witnesses, as a rule of prudence and not rule

of law, should not be relied upon. Next witness in relation to this

appellant is Raj Kumar Yadav (PW 5) who named him before the police as well

as in court but failed to identify him in court. Bal Govind (PW 8) who is

another witness in relation to this appellant did not name him before the

police whereas named him in court but failed to identify when this

appellant was in dock. Another witness in relation to this appellant is the

informant-PW14 himself who, though named him in the first information

report as well as the statement made in court, but wrongly identified

somebody else as this appellant in the dock. As such evidence of these

witnesses can be of no avail to the prosecution. The last witness in

relation to this appellant is Ramratan Yadav (PW 12) who named him before

the police as well as in court and correctly identified him. Learned

counsel appearing on behalf of the appellants could not point out any

infirmity in his evidence, except saying that as the informant himself has

wrongly identified another accused as this appellant, on this ground alone,

the evidence of PW-12 should be discarded. In our view, the submission has

been made only to be rejected.

Rambilas Yadav (appellant No. 4) was another accused named in the first

information report. He was named by PW-12 before the police as well as in

court. But when this appellant was in dock, he failed to identify him.

Therefore, his evidence can be of no avail to the prosecution. Thus, the

solitary evidence against this appellant is of the informant-PW14 who has

named him in the first information report as well as before the police and

in his presence, this appellant was arrested by the investigating officer

at the place of occurrence itself. PW-14 has named this appellant in court

and correctly identified him in the dock. The witness has consistently

supported the prosecution case disclosed in the first information report

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and no infirmity could be pointed out. Merely because this witness has

wrongly identified appellant No.2-Doman Yadav, his evidence in relation to

identification of other appellants cannot be discarded.

Bindeshwar Yadav (appellant No.6), who was also an accused named in the

first Information report, was not named by PWs 4, 8 and 9 before the police

and for the first time after two years they named him in court. But none of

them could identify this appellant in the dock. Therefore, their evidence

can be of no avail to the prosecution as in their evidence in court which

is substantive evidence, they could not identify this appellant. Next

witness in relation to this appellant is PW 3 who did not name him before

the police and no explanation has been furnished for the same, though in

court he has named and identified this accused for the first time, but

after more than two years from the date of the alleged occurrence.

Therefore, it is not safe to place reliance upon his evidence as it is well

settled that belated Identification of accused in court for the first time

after more than two years from the date of the incident should not form the

basis of conviction, especially when the same is not corroborated by either

previous statement made before the police or any other evidence. Other

witnesses in relation to this appellant are PWs 5, 6 and 12. These

witnesses have, though, named him before the police as well as in court,

but failed to identify him in the dock. As such their evidence cannot be

taken into consideration for convicting this appellant as the evidence of

Identification in court, which alone is substantive evidence, is wanting.

Now the only witness remains in relation to this appellant is the

informant-PW14 who has named him in the first Information report as well as

in court and correctly identified in the dock. No infirmity could be

pointed out in relation to identification of this appellant by the

informant.

Ramchandra Yadav (appellant No. 7) was not named before the police by

Chandrika (PW 4), Raj Kumar Yadav (PW.5), Suresh Nabidas (PW 6) and

Bindeshwar Prasad (PW 10) but named in court by them, though none of them

could identify him in dock. Therefore, their evidence cannot form the basis

of conviction. PW.12 had named this appellant before the police as well as

in court but he failed to identify him in the dock. Thus, his evidence

cannot be used against this appellant. PW 3 did not name this appellant

before the police but has named and identified him in court. As prosecution

has not furnished any explanation for non-disclosure of name of this

appellant before the police by this witness, his belated identification in

court for the first time after more than two years, should not be relied

upon more so, when the same is not corroborated by any other evidence. Bal

Govind (PW.8) is said to have named this appellant before the police as

well as in court but he identified another accused to be this appellant.

Therefore, evidence of this witness on the question of identification of

this appellant has to be discarded. Now remains the solitary evidence of

the informant-PW14 who has named him in the first information report as

well as in court and correctly identified in the dock. His evidence being

consistent and credible, no ground could be pointed out to discard the

same.

Shri Mishra further submitted on the basis of the analyses of evidence of

identification that so far as appellant Nos. 2,4,6 and 7 are concerned.

there remains evidence of identification by a solitary witness in which

event chances of mistaken identification cannot be ruled out. It may be

stated that in cases where the accused is not known to the prosecution

witnesses and is identified in the test identification parade as well as in

court by a solitary witness, the evidence of identification by him has to

be scrutinized with greater care and caution than in the case of known

accused and should not be accepted unless free from all reasonable doubts.

In the present case, these appellants were not unknown but were fully known

to the prosecution witnesses. Therefore, their identification by a solitary

witness can certainly form the basis of conviction, more so when the

evidence is consistent and has been found to be credible. This being the

position, in our view, the submission is devoid of any merit.

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In view of the law analysed above, we conclude thus:-

(a) If an accused is well known to the prosecution witnesses from

before, no test identification parade is called for and it would be

meaningless and sheer waste of public time to hold the same.

(b) In cases where according to the prosecution the accused is known to

the prosecution witnesses from before, but the said fact is denied by him

and he challenges his identity by the prosecution witnesses by filing a

petition for holding test identification parade, a court while dealing with

such a prayer, should consider without holding a mini inquiry as to whether

the denial is bona fide or a mere pretence and/or made with an ulterior

motive to delay the investigation. In case court comes to the conclusion

that the denial is bona fide, it may accede to the prayer, but if, however,

it is of the view that the same is a mere pretence and/or made with an

ulterior motive to delay the investigation, question for grant of such a

prayer would not arise. Unjustified grant or refusal of such a prayer would

not necessarily enure to the benefit of either party nor the same would be

detrimental to their interest. In case prayer is granted and test

identification parade is held in which a witness fails to identify the

accused, his so-called claim that the accused was known to him from before

and the evidence of identification in court should not be accepted. But in

case either prayer is not granted or granted but no test Identification

parade held, the same ipso facto can not be a ground for throwing out

evidence of identification of an accused in court when evidence of the

witness, on the question of identity of the accused from before, is found

to be credible. The main thrust should be on answer to the question as to

whether evidence of a witness in court to the identity of the accused from

before is trustworthy or not. In case the answer is in the affirmative, the

fact that prayer for holding test identification parade was rejected or

although granted, but no such parade was held, would not in any manner

affect the evidence adduced in court in relation to identity of the

accused. But if, however, such an evidence is not free from doubt, the same

may be a relevant material while appreciating the evidence of

identification adduced in court.

(c) Evidence of identification of an accused in court by a witness is

substantive evidence whereas that of identification in test identification

parade is, though a primary evidence but not substantive one, and the same

can be used only to corroborate identification of accused by a witness in

court.

(d) Identification parades are held during the course of investigation

ordinarily at the instance of investigating agencies and should be held

with reasonable despatch for the purpose of enabling the witnesses to

identify either the properties which are subject matter of alleged offence

or the accused persons involved in the offence so as to provide it with

materials to assure itself if the investigation is proceeding on right

lines and the persons whom it suspects to have committed the offence were

the real culprits.

(e) Failure to hold test identification parade does not make the

evidence of identification in court inadmissible rather the same is very

much admissible in law, but ordinarily identification of an accused by a

witness for the first time in court should not form basis of conviction,

the same being from its very nature inherently of a weak character unless

it is corroborated by his previous identification in the test

identification parade or any other evidence. The previous identification in

the test identification parade is a check valve to the evidence of

identification in court of an accused by a witness and the same is a rule

of prudence and not law.

(f) In exceptional circumstances only, as discussed above, evidence of

identification for the first time in court, without the same being

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corroborated by previous identification in the test identification parade

or any other evidence, can form the basis of conviction.

(g) Ordinarily, if an accused is not named in the first Information

report, his identification by witnesses in court, should not be relied

upon, especially when they did not disclose name of the accused before the

police, but to this general rule there may be exceptions as enumerated

above.

In view of the foregoing discussion, in our opinion, the High Court has not

committed any error in upholding convictions of appellant nos. l, 2, 4, 6

and 7 and sentences awarded against them, consequently their appeals fail

and the same are dismissed. Appeal of appellant no. 3 is allowed, his

convictions and sentences are set aside and he is acquitted of all the

charges. This appellant is directed to be released forthwith, if not

required in connection with any other case.