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
JUDGMENT
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, 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
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
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 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:
"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
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 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 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.