Jadunath Singh & ANR Vs. State of
U.P [1970] INSC 249 (7 December 1970)
07/12/1970 SIKRI, S.M.
SIKRI, S.M.
BHARGAVA, VISHISHTHA DUA, I.D.
CITATION: 1971 AIR 363 1971 SCR (2) 917 1970
SCC (3) 918
CITATOR INFO :
F 1975 SC1814 (4)
ACT:
Evidence Act, 1872, s. 9--Identity of
accused--Witnesses claiming to have known accused from before--Accused denying
claim and requesting test identification-Refusal of test identification whether
vitiated trial.
HEADNOTE:
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-witnesses M and D who. knew the appellants from before. The names of the
appellants were mentioned in the First Information Report but not their
parentage. The appellants, at the stage of inquiry, made an application to the
Additional District Magistrate (Judicial) requesting that a test identification
parade be held.
According to the appellants P knew them from
before but not the other two alleged eye-witnesses. 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 a test identification parade. In appeal to this Court by special
leave,
HELD: As laid down by this Court in Perkash
Chand Sogani's case the absenceof 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. But if there is any doubt in the matter
the prosecution should hold an identification parade specially if an accused
says that the alleged eyewitnesses 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] Perkash Chand Soganiv. 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.I.R. 1962 All. 333, In re
Sangish, A.I.R. 1948 Mad. 113, Awadh Singh & Ors. v. Patna State, A.I.R.
1954 Pat 483, Provash Kumar Bose v. The 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 D
that his knowledge of the accused was very scant. The claim of the other
witness M that he had known the accused for about four years was not challenged
in cross examination. Therefore on the facts of the case the trial of the
appellants.
918 Could not be held to be vitiated because
of the denial of test identification although the reason given by the
Magistrate for refusing it, namely, that the cbarge-sheet had already been
filed, was wrong. [925 G-926 C]
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 Appeal
No. 1037 of 1969 and Referred No. 82 of 1969.
Yogeshwar Prasad, S. K. Bagga and Sureshta
Bagga, for the appellants.
O. 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.
In order to appreciate the points raised
before us by the learned counsel for the appellants it is necessary to state a
few facts. It is alleged against the appellants that on February 26, 1968, at
about 7.30 a.m., in furtherance of their common intention, they murdered one
Ram Swarup Pandey by repeatedly stabbing him to death, when he was passing on
the Grand Trunk road in the town of Bewar to catch a truck.
As many as 34 injuries were found on the
deceased at the postmortem conducted on his body on the same day at about 3
p.m.
The prosecution case in brief is as follows :
It is common ground that there was great enmity between the deceased and Laturi
Ahir and his sons, the two appellants. The deceased apprehended danger to his
life from them, and on November 23, 1967, be sent an application to the
Superintendent of Police, Mainpuri, ;alleging that Laturi and his son,
Jadunath, Brahma, Panna Lal and Anokhey, et&. were terrorising the weaker
and poorer sections of the village community and declaring openly that they
would kill the deceased to silence his opposition 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.O. in connection
with an enquiry on a complaint made against Munshi Lal Pradhan of the village.
He could not meet the A.D.O. as he was out of station. He stayed during the 919
night with Prem Narain, P.W. 1, who happened to be a brother-inlaw of his
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 the deceased thought that
he could get a seat in some truck near the Prem Hotel and the Octroi barrier,
they left the bus-stand for the 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 the
deceased Prem Narain asked the appellants why they were attacking the deceased.
Then Girand Singh, appellant, advanced towards him and gave a 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 away. The deceased died on
the spot.
The First Information Report was lodged at 8
a.m., the Police Station being only two furlongs from the scene of occurrence.
In the First Information Report, in the second column, under the heading
"Name and residence of accused", it was stated as follows "1.
Jadu Nath Singh, father's name not known and 2. Girand Singh father's name not
known.
Ahirs by caste, residents of Garhia Kishunpur
P.S. Bewar, Distt. Mainpuri." The accused surrendered on March 12, 1968,
and it appears that an application was filed 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 Public Prosecutor submitted a 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 attached. It may be submitted that they are named in the
F.I.R.
and charge sheet against them has also been
received. The applications are moved to delay this case. Submitted for
n.a." 920 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 informed 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 the
evidence of, P.W. 2, Mahesh Chandra, and P.W.
3, Dwarka Prasad, useless.
We may here notice that portion of the
evidence of Dr. N. K. Mital, who conducted the postmortem 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 intestines were
also half full. In crossexamination he stated that since the 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 prosecution 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 found 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 the small intestine by about 2 or 2.30 a.m.
Complete digestion takes place in the small intestine...... And if he had
answered the call of nature the preceding evening fully and completely, even
then the small and largeintestines might be half full and stomach empty if he
had taken puries with vegetable at 8 p.m. on 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 occurrence at the hands of
one of the assailants, namely, Girand Singh. He also believed the evidence of
Mahesh Chandra, P.W. 2, and Dwaraka Prasad, P.W.
3. He relied on the fact that the appellants
had absconded immediately after the crime and had only appeared before the
Court as late as March 12, 921 1968, after proceedings under ss. 87 and 88 of
the Code of Criminal 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 a test identification parade in the jail. He observed that the
evidence indicated that the accused persons were not strangers even to Mahesh
Chandra and Dwarka Prasad at the time of the occurrence. 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 a 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
Bewar 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 the proceedings, and accordingly he was
unable to draw any adverse inference against the prosecution for the omission
to parade the accused persons at a 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 wholly independent witnesses
having no affinity with the deceased and entertaining no animosity towards the
appellants." The High Court observed that these' witnesses 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 a
student in a college at Bewar.
The learned counsel for the appellants raised
two principal points before us (1) 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 a
peshbandi. He urged that the eyewitnesses were not reliable and the courts
below had missed the point that the appellants could not have anticipated that
the deceased would be at this particular spot at that time.
922 The learned counsel relied on the
following observations of the Lahore High Court in Sajjan Singh v. Emperor(1)
"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 the accused
himself denies this, it is difficult to see how the claim made by the witnesses
can be used as a reason for re using 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 knew by sight owing to some change of
appearance or even to weakness of memory, but this is only oneof 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." State of U.P. v. Jagnoo (2 ) refers to Sajjan
Singh v. Emperor(1) with approval.
In re Sangiah(3) the decision of the Lahore
High Court in Sajjan Singh v. Emperor (Supra) was dissented from Rajamannar,
J., observed :
"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 a particular
witness has been able to identify the accused at an identification trade is
only a circumstance corroborative of the identification in Court.
If a witness has (1) A.I.R. 1945 Lab. 48, 50.
(2) A.I.R. 1968 All. 333, (3) A.T.R. 1948 Mad. 113, 923 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 Perkash Chand Sogani v. The State of
Rajasthan (1) (an unreported decision of this Court) 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 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(3) 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 P.W. 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 riot
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." In Awadh Singh v. The
State(2) 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 as(1) Criminal Appeal No. 92 of
1956, decided on January 15, 1957.
(2) A.I.R. 1954 Patna 483, (3) A.I.R. 1951
Cal. 475, 924 sert 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 Provesh Kumar Bose v. The King(1), a
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 a prosecution
under s. 384, Penal Code, when none of the witnesses knew the accused from
before........ the corroborative evidence which one is entitled to expect in
cases of this nature is the evidence of the witnesses having pointed the
accused whom they identified in Court from the midst of other persons with whom
they were mixed up at a test identification parade. The evidence of their
having identified such persons at a test identification parade has no
substantive value, but is very important corroboration of their evidence in
Court." In Kanta Prasad v. Delhi Administration ( 3 ) a point was made
regarding non-holding of test identification parade by the police and this
Court observed :
"As for the test identification parade,
it is true that no test identification parade was held. The appellants were
known to the police officials who had deposed against the appellants and the
only persons who did not know them before were the persons who gave evidence of
association, to which the High Court did not attach much importance. It would
no doubt have been prudent to hold a test identification parade with respect to
witnesses who did not know the accused before the occurrence, but failure to hold
such a parade would not make inadmissible the evidence of identification in
court. The weight to be attached to such identification would be a matter for
the courts of fact and it is not for this Court to reassess the evidence unless
exceptional grounds were established necessitating such a course." It
seems to us that, it has been clearly laid down by this Court in Perkash Chand
Sogani v. The State of Rajasthan(3) 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 (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.
925 hat 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
eyewitnesses 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, as pointed out above
the prosecution will, 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 accused persons for about four years and said
:
"I know the accused persons, Jadunath
Singh and Girand Singh for about 4 years. They live at village Garhiya lying at
a distance of three furlongs from Bewar. Girand Singh is reading at the Amar
Shaheed Inter College, Bewar." No cross-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
day. Identifies both the accused persons in the dock. Lays hand correctly on
Jadunath; and also lays handscorrectly on Girand in the, dock." In
cross-examination he stated "I had seen Jadunath accused at Bewar at the
shop of one Chhakku once or twice before the occurrence. I had seen him two or
2-1/2 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 identification requested for be not held
were not valid. The fact that a charge sheet had been received and the accused
had been named by P.W.s was no justification for not having ordered the test
identification. 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, although he claims to have
known the accused, it is clear that his knowledge of the accused was very scant
and if it had not been for the evidence of P.W. 2 we would not have placed
reliance on the 926 evidence of P.W. 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. 415, 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 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 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.
Regarding the second point, we have already
extracted the evidence of the doctor, and it is quite clear to us that the
evidence is not in conflict with the prosecution case. If the occurrence took
place at about 7.30 a.m. and the deceased had not taken any food in the
morning, his stomach would still be empty at 7.30 a.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
Prem Narain at 3 a.m. to catch a bus which was supposed to leave at about 7 a.m.
This appeal is by special leave and this
Court does not reappropriation the evidence. The, other points raised by the
learned counsel are of that nature, and at any rate there is no substance in
those points.
The appeal accordingly fails and is
dismissed.
G.C. Appeal dismissed.
L694SupCI/70-2500-29-4-72-GIPF.
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