JADUNATH SINGH & ANR. versus STATE OF U.P.

JADUNATH SINGH & ANR.

STATE OF U.P. December 7, 1970

[S. M. Snoo, V. BHARGAVA AND I. D. DUA, JJ.]

Evidence Act, 1872, s. 9-ldentit,y of accused-Witnesses claiming to have known accused from before-Accused denying claim and r.equestlng ttst identifisation-Refusal of test identification whether vitioted trial.

The appellants were accused of an offence under s. 302 read with s. 34 of the Indian Penal Code. Apart from P who was injured in the incident there were, according to the prosecution, two other eye-wit· nesses M and who knew the appellants from before. The names of the appellants were mentioned in the First Information Report liut not their parentage. The appellants, at the stage of inquiry, made an application to the Additional District Magistrate (Judicial) requellting that test identification parade be held. According to the appellants P knew them from ·before but not the other two alleged eye-witnClises. The Magistrate rejected the application on the ground that the charge sheet had already been filed. The same request made at the trial stage to the Sessions Judge was again rejected on the ground it was not bona fide. The trial court, believing the eye witnesses, convicted the appellants. The High Court upheld their conviction and did not accept their plea that the trial had been vitiated because they had been denied test indentification parade. In appeal to this Court by special leave,

HELD : As laid down bv this Court in Perkash Chand Sogani's case the absence of teu identification in all cases is not fatal, and if the accus· ed person is well-known by sight it would be waste of time to put him up for identification. But if there is any doubt in the matter the prose· cution 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 an identification parade but if the accused does make an application and that application is turned down and It transpires during the course of the trial that the witnesses did not know the accused previously, the prosecution will, unless there is some evidence, run the risk of losing the case on this point. [924 G-925 C]

Perk,,sh Ch~nd Sogani v. State of Rajasthan, Cr. A.No. 92/1956 dt. 15-1-1957, applied. ·

Sajjan Singh v. Emperor, A.I.R. 1945 Laj. 48, State of U.P. v. Jagnoo, A.l.R. 1962 All. 333, In re Sangish, A.LR. 1948 Mad. 113, Awadh Singh & Ors. v. Patna State, A.l.R. 1954 Pat 483, Provash Kumar Bose v. Tiie King, A.I.R. 1951 Cal. 475, Kanta Prasad v. Delhi Administration [1958) S.C.R. 1218. 1221, referred to. · '

In the .present case it could be said about that his knowledge of the accused was very scant. The claim of the other witness M that h& had. known the accused for about four years was not challenged in ctoss· examination Therefore on the facts of the case the trial of the appellants

could not he held to be. vitiated because of the denial of test identification although the reason given by the Magistrate for refusing it, namely, that the charge-sheet had already been filed, was wrong. [925 G-926 CJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 55 of 1970.

Appeal by special leave from the judgment and order dated September 26, 1969 of the Allahabad High Court in Criminal App!lal No, 1037 of 1969 and Referred No. 82 of 1969.

Yogeshwar Prasad, S. K. Bagga and Sureshta Bagga, for the appe!llants.

0. P. Rana, for the respondent.

The Judgment of the Court was delivered by.

Sikri, J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad confirming conviction of the two appellants by the Sessions Judge, Mainpuri, under s. 302/34 of the Indian Panel Code. Appellant Jadunath Singh was sentenced to death by the Sessions Judge and appellant Girand Singh was sentenced to undergo imprisonment for life.

Jn order to appreciate the points raised before us by the learned counsel for .the appellants it is necessary to state few facts. It is alleged against the appellants that on.February 26, 1968, at about 7 .30 a.m., in furtheran9e of their common intention, they murdered one Ram Swamp Pandey by repeatedly stabbing him to death, when iie was passing on the Grand Trunk road in the town of Bewar to catch truck. As many as 34 injuries were found on th~ deceased at .the post-mortem conducted on his body on the same day at about 3 p.m.

The prosecution case in brief is as follows : It is cmmhllll ground that there was great enmity between . the deceased and Laturi Ahir and his sons, the two appellants .. The deceased appre-hended danger to his life from them, and on November 23, 1967, he sent an application to the Superintendent of Police, Mainpuri, alleging that Laturi and his son, Jadunath, Brahma, Panna Lal and . Anokhey, etc. were terrorising the weaker and poorer sections of .the village community and declaring openly that they would kill ·the deceased t0 silence his opposi~ion for ever. He prayed that an enquiry. may be made and suitable action taken against them. ·On February 25, 1968 ( the deceased came to Bewar in the evening to meet the A.D.0. in connection with a,n enquiry on complaint made against Munshi Lal Pradhan of the village. ·He .could not meet the A.D.0. as he was out of station. He stayed during the

night with Prem Narain, P.W. 1, who happened to be brother-in· law of liis cousin Gulati Ram. According to Prem Narain, both of them got up in the morning at 6.45 a.m. and since it was Shivratri that day the deceased did not take any food and they left for the bus stand at Bewar. When they reached the bus-stand at about 7.10 a.m. they found that the bus for Etah via Sultanganj had already left. The next bus was due to go at 9.30 a.m. but,, as Pie deceased thought that he could get seat in some truck near the Prem Hotel and the <)ctroi barrier, they left the bus-stand for thC Octroi barrier. When they reached the house of Kotwal Singh on the way, both the accused attacked the deceased with chhuri and knife, respectively; Jadunath had the chhuri and Girand Singh had the knife. Both the deceased and Prem Narain were unarmed. On hearing the cries of t.he deceased Prem Narain asked the appellants why they were attacking the deceased. Then Girand Singh, appellant, advanced towards him and gave knife cut at his right wrist. On the deceased falling down both accused persons attacked him with their respective weapons. On his raising the alarm Mahesh Chandra and Dwarka Prasad who were coming along the same road came and they shouted at the appellants. On hearing their shouts the accused ran awey. The deceased died on the spot.

The First Information Report was lodged at 8 a.m., the Polii:e Station being only two furlongs from the scene of occurrence. In the First Information Report, in the second column, under t'he heading "Name and residence qf accused", it was stateu as follows:

'' l. Jadu Nath Singh, hther's name not known and

2, Girand Singh father's name not known.

Ahirs by caste, residents of Garhia Kishunpur J'.S. Bewar, Oistt. Mainpuri."

The accused surrendered on March 12, 1968, and it appears tha~ an application was ft.led by the advocate on their behalf that they be kept ba pardah as they might claim identification. Another application was put in on March 25, 1968, in which it was stated that the witnesses other than Prem Narain were strangers and they applied that there should be an identification parade. On April 19, 1968, the then fublic Prosecutor submitted report to the Additional_ District Magistrate as under :

"Accused Jadu Nath Singh and Girand Singh in case Cr. No. 24 under Section 302 I.P.C., P.S. Bewar, have applied for identification, vide application herewith at-tached. It may b~ submitted that they are named in the F.I.R. and charge sheet against them has also been re-ceived: , The applications are moved to delay this case. Submitted for n.u."

The Additional District Magistrate (Judicial) passed the following, order on the application, on April 20, 1968 :

"As charge sheet has already been received and the accused have been named by P.Ws., there appears to be no justification for ordering test identification. Accused be informed accordingly. The jail authorities be in-formed not to keep them ba parda."

We have set out these facts in detail because, as will presently appear, one of the points raised by the learned counsel is that failure to put up the accused for identification either vitiated the trial or, in any case, rendered tlhe evidence of P.W. 2, Mahesh Chandra, and P.W. 3, D_warka Prasad, useless.

We may here notice that portion of the evidence of Dr. N. K. Mital, who conducted the post-mortem examination and on which one other point is sought to be founded. He found that the stomach was empty and the small intestines were half full and the large in' testines were also half full. In cross-examination he stated that "since t;he stomach was empty, the deceased should have taken his last meal about 4 to 6 hours before the infliction of the injuries." He was asked : "The evidence is that the deceased took puris and vegetable at 8 p.m. on 25-2-68; and according to the case for the prosecutjon his murder took place at 7 .30 a.m. on 26-2-68. At the time of post mortem the stomach was found empty and both the small and large intestines were fo11nd half full. Does it not indicate that in all likelihood the man was murdered between 3 and 4 a.m. ?" To this question Dr. Mital answered :

"No~ It is not an indication of this fact. After finishing .his meal at about 8 or 8.30 p.m. on 25-2-68 the stomach could have got empty by 2 or 2.30 a.m. The digested _food material should have come in Qle small intestine by about 2 or 2.30 a.m. Complete diges-tion takes place in the small in'.testine ...... And if he had answered the call of nature the preceding evening fully and completely, even then the small and large in-testines might be half full. and stomach empty if he had taken puries with vegetable at 8 p.m. oq 25-2-68."

. The learned Sessions Judge believed the evidence of Prem Narain, corroborated as it was by the injuries sustained by him in the course of the occurence at the hands of one of the assailants, namely, .Girand Singh. He also believed the evidence of Mahesh Chandra, l'.W. 2, and Dwaraka Prasad, P.W. 3. He relied on the fact that the appellants hac[ absconded immediately after the crime anc;Lhad only appeared before the Court as late as March 12,

·A 1968, after proceedings under ss. 87 and 8 8 of the Code of Cri· minal Procedure had been taken against them. Regarding the claim of the appellants for identification the learned Sessions Judge observed that during the course of investigation both Mahesh Chandra and Dwarka Prasad had named the accused persons, and it would indeed have been surprising if the Additional District Magistrate (Judicial) had directed the accused to be paraded at test identification parade in the jail. He observed that the evidence indkated that the accused persons were not strangers even to Mahesh Chandra and Dwarka Prasad at the time of the OCCllI'I'enco. Mahesh Chandra had stated in his evidence that he had known the accused persons for about 4 years and that they were living at village Garhiya lying at distance of three furlongs from Bewar, and that Girand Singh was reading at the Amar Shaheed Inter College, Bewar. Dwarka Prasad had stated that he had· seen Girand visiting Bewar before that day. He had also seen Jadu Nath Singh at Bevfar but only once or twice before that. For all these reasons the learned Sessions Judge held that the applications claiming identification were not bona fide and were . intended to protract tt.e proceedings, and accordingly he was unable. to draw any adverse inference against the prosecution for the omission to parade the accused persons at test identification parade in the jail.

The High Court believed the three. eyewitnesses, Prem Narain, Mahesh Chandra and Dwarka Prasad. The High Court -held that "Mahesh and Dwarka Prasad are whoUy independent witnesse& having no affinity with the deceased and entertaining no animosity towards the appellants." The High Court observed that these wit· · nesses had claimed to have known the appellants for the laSt six or seven years as they had been frequently visiting the town of Bewar, and the appellant, Girand Singh, was student in college atBewar.

• The learned counsel for the appellants raised two principal points before us : (:) Since the accused were denied identification the trial was vitiated;

(2) The medical evidence is in conflict with the prosecution case about the time of the assault. ·

The learned counsel further urged that the number and nature

of injuries belie the prosecution story, and that the application by the deceased to the Superintendent of Police was nothing but peshbandi. He urged that the eye-witnesses were not reliable and the courts bc;l?w had l!lissed the point that the appellantS. could · not have anticipated that the deceased would ~e at this particular spot at that time,

The learned counsel relied on the following observations of the Lahore High Court in Sajjart, Singh v. Emperor( [1]) :

"If an accused person is already wefr'.:known to the witnesses, an identification. parade would, of· course, be only waste of time. If. however, the witnesses clainpo have known the accused previously, while the accused himself denies this, it is difficult to see· how the claim made by the witnesses can be used as reason for refus-ing to allow their claim to be put to the only practical test. Even if the denial o.f the accused is false, no harm is done, and the value of the evidence given by the wit-nesses may be increased. It is true that it is by no means uncommon for persons who have been abscond-ing for long time to claim an identification parade in the hope that their appearance may have-changed suffi-ciently for them to escape recognition. Even so, this is not in itself good ground for refusing to allow any sort of test to be carried out. It may be lfuat the witnesses may not be able to identify person whom they knew by sight owing to some change of appearance or even to weakness of memory, but this is only one of the facts along with many others, such as the length of .time that hM elapsed, which ':Viii have to be taken into considera-tion in determining whether the witnesses are telling the truth or not."

State of U.P. v. Jagnoo([1]) refers to Sajjan Singh v. Empe-ror(1) with approval.

In re Sangiah(') the decision of the Lahore High Court in Sajjan Singh v. Emperor (Supra) was dissented from Raja-mannar, J., observed : .

"I am unable to find any provision in th~ 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 inves.tigation by the police. The question whether -a wit-ness 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 af an identification trade is only circumstance corro-borative of the identification in Court. If witness has

(1) A.T.R. 194~ Lah. 4&, 50. (2) AJ.R. 1968 An. 333.

13) A.LR. 1948 Mad. 113.

not identified the accused. at parade or otherwise during the investigation the fact may be relied on by the accus-ed, but I find nothing in the provisions of the Code which confers right on the accused to demand that the investi-gation should be conducted in particular way."

In Perkash Chand Sogani v. The State of Rajasthan (') (an un-reported decision of this Court) in connection with the point re- · garding identification, it was observed :

"Much is sol,lght to be made out of the fact that no identification parade was held at the earliest opportunity in order to find out whether P.W. 7 Shiv Lal could have identified the appellant as the person who was at the wheel of the car and drove it and reliance is placed upon Awadh Singh & Others v. The Patna State([2]), Provash Kumar Bose and Another v.. The King([8 ]) and also Phipson on the Law ofl Eviden~, 9th Ed., p. 41 S 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 lndentification parade at the earliest possible OP,.portunlty to show that the accused person lilid been connected . with the crime. It ls also the defence case that Shiv Lal did not. know the appel· lant. · But on reading of the evidence of P.W. 7 it seems to us clear that Shiv (al knew the appellant by sight. Though he made mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was brother of Manak Chand and he identified him as such. These circumst-auces are quite enough to show that the absence of the identification parade would not vitiate the evidence. person, who is well-known by ·sight as the brother of Manak Chand, even before the commission of the occur~ rence, 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 absenee of the identification parade or mistake made as to his name, would be necessarily fatal tb the prosecution case in the circumstances."

In Awadh Singh v. The State([2 ]) it was held that "the accused person may or mav not have legal right to claim for test identifi-cation and. the holding of test identification may or may not be rule of law, but it is rule of prudence. Test identification parade should be held especially when the accused persons definltely as-

(!) Criminal Appeal No. n of 1956. decided on January 15. 1957.

(2) A.T.R. 1954 Patna 4~3. (3) A.1.R. 1951 Cal. 475.

sen that they were unknown to the prosecution witnesses ei~er by name o~ by face and they requested the authorities concerned to have the test identification parade held."

In Provesh Kumar Bose v. The King('), Division Bench of the Calcutta High (Harries C.J., & Das Gupta, J.) held:

"The fact that the witnesses have identified in Court the accused is of very little consequence in prosecu-tion under s. 3 84, Penal Code, when none of the wit-nesses knew the accused from before. . ...... the cor-roborative evidence which one is entitied to expec~ in cases of this nature is the evidence of the witnesses hav-ing pointed the accused whom they identified in Court from the midst of other persons with whom they were mixed up at test identification parade. The evidence of their having identified such person.s at test identifi-cation parade has no substantive value, but is very im-port<mt corroboration of their evidence in Court."

I.n Kanta Prasad v. Delhi.Administration(') point was made regarding non-holding of test idenfification parade by the police and this Court observed :

"As for the test identification parade, it is true ihat no test identification parade was held. The appellants were known to the police officials who had c\eposed against ihe appellants and the only persons who did not know them before were the persons who gave evidence of associatio!l, to which the High Court did not attach much importance. It would no doubt have been pru-dent to hold test identification parade with respect t() witnesse> who did not know the accused before the occurrence, but failure to hold such parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification would be matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such course."

It seems to us that it has been clearly laid down by this Court in Perkash Chand Sogani v. The State of Rajasthan\') that the absence of test identification in all cases is not fatal and if the accused person is well-knowri 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 il transpires in the course of the trial

(1) A.I.R. 1951 Cal. 475. . (2) [1958] S.C.R. 1218, 1221.

(3) G.A. No. 92 of 1956 decided on 15-1-1957,

that _the witnesses did not know the accused previously, the pro-secution woµld run the risk of losing its case. It seems to us that if there is any doubt in the miitter the prosecution should hold an identification parade specially if an accused says tbat the alleged eye-witnesses did not know him previously. It may be that there is no express provision in the Code of Criminal Procedure enabl-B ing an accused lo insist on an identification parade but if the accused does make an application and that application is turned down and it transpires during the course of the tria\'that the wit-;nesses ·did not .know the accus~d previously, as pointed out above the prosecution wil), unless there is some other evidence, run the risk of losing the case on 'this point.

In the present· case, however, it is clear that P.W. Mahesh Chandra knew the accusea perso.ns for about· four years and said :

"I know the accused persons, J adunath Singh an_d Girand Singh for about 4 years.' They live at village Garhiya lying at distan~e of three furlongs "from Bewat. Girand Singh is reading at the Amar Shaheed Inter Colleg~. Bewar."

No cmss-examination was directed on this point. P.W. 3, Dwarika Prasad, stated':

"I had seen Girand visiting Bewar before that but I

had seen Jadunath at Bewar only once or twice before that dflY· Identifies both the accused persons in the dock. Lays hand correctly on Jadunath; and also lays hands correctly 011 Cirand in the dock."

In cross-examination he ·stated :

"I had seen Jndunath accused at Bewar at the shop

of one Chhakku once or twice before the occurrence. I had seen him two or 2t years back."

It seems to us that the reason given by the Public Prosecutor in the report and the_ .reason given by the Additional District Magistrate '(Judicial) in the. order directing that identifica~ion re-quested for ·be not held were not valid. The foct that charge sheet had been received and the_ accused had been named · by P.W.s was no justification for not having ordered the test identifi-cation. But on the facts of this case it is clear that P.W. 2 at least knew the accused from before. As regards P.W. 3, althouoh he claims to have known the accused. it is clear that his kno~--· ledge of the accused w:is very sc:int and if it had not been for the evidence of P.W. 2 we would not have placed reliance on the

evidence of P. W. 3 in view of the fact that the police did not ask him to identify th~ appellant.

It is stated in Phipson on the Law of Evidence, 9th Ed., p. 415, as follows: .

"In criminal cases it is improper to identify the accused -only when in the dock; the police shoulci place him, before hand, with others, and ask the· witness to pick him out. Nor should the witness be guided in any way, nor asked "Is that the man ?"

We consider that the same is the law in India, if the identity is in: donbt.

Accordingly on the facts of this case we are of th~ opinion' that the trial was not vitiated because the accused persons were denied identification.

Regarding the second ~oint, we have already extracted the evidence of the doctor, and 1t is quite clear to us that the evidence is not in confiict with the prosec\ltion case. If the occurrence took place at nbout 7 .30. n.m. and the deceased had not taken any food in the morning, his stomach would still be empty at 7.30 11.m. If ·anything the medical evidence destroys the case of the defence that the murder took place at about 3 in the morning. We are unable to think that the deceased would leave with J>rem Narain at 3 a.m. to catch bus ii•hich was supposed to leave at about 7 R.m.

This appeal is by special leave and this Court does not re-appreciate the evidence. The other points raised by the learned counsel are of t\lat nature, and at any rate there is no substance in these points.

The appeal accordingly fails and is dismissed.

Appeal dismissed.