PETITIONER: BUDHSEN Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 06/05/1970 BENCH: DUA, I.D. BENCH: DUA, I.D. RAY, A.N. CITATION: 1970 AIR 1321 1971 SCR (1) 564 1970 SCC (3) 128 CITATOR INFO : D 1972 SC2478 (5) RF 1978 SC1770 (25,26) ACT: Evidence Act (1 of 1872),s.9-Identification parades-Manner of holding-Weight to be attached-Constitution of India, 1950, Art. 136-Evidentiary value attached to identification parades-Erroneous Interference by Supreme Court. HEADNOTE: The two appellants B and N, along with two others who were acquitted by the High Court, were charged with the offence of murder by shooting the deceased, committed on September 12, 1967. The evidence against them mainly consisted of six witnesses who had identified them at test parades. The High Court rejected the evidence of three of them and relied upon the evidence of the remaining three. Two of them claimed to be present at the time of the occurrence and the third came on the scene after hearing pistol shots and the alarm raised by others. The appellants were strangers to all the witnesses. One of the eye witnesses (P.W. 1) gave the first information to the police, but there was no description of the assailants in it. The P.S.J. recording the report also did not question the informant for the purpose of securing more information about the description of the assailants in order to be able to take measures to discover and arrest them. P.W. 1 identified the appellants at two identification parades conducted by a Magistrate. The identification parade in respect of N was held on October 21, 1967 and in respect of B on October 28, 1967. In the form relating to the identification parade, there is a footnote stating that it is very useful to note whether the witness knew the name of the person he had come to identify or only described him and that the witness should not be asked in a general way to identify whomsoever he knew. The Magistrate gave evidence that he had asked witnesses who had come to identify the accused (named) as to what he had seen the accused doing and recorded whatever the witness told him. Whatever the first witness bad told him was recorded word for word and since the other witness bad repeated the same thing he noted down against their names the words as above. The identification memorandum as regards the other accused, prepared by the Magistrate at the time of his identification parade, was similar. There was also unexplained error as to the date on which appellant B was admitted into the jail. In both identification memos there were no- remarks by the Magistrate in respect of the steps taken by the jail authorities to ensure proper conduct of proceedings. The eye witnesses also did not specify in court the accused who had actually fired the pistol. The second eye witness admitted in cross-examination that he had gone to the jail for identification on three occasions and that on two occasions be had identified the accused but on the third occasion be did not identify any. He was unable to state as to which accused he identified in the first and which in the second parade. The third witness deposed that he bad identified the accused who had a jhola in his hand (he was alleged by) by the three witnesses to have 565 taken a pistol from the Jhola) at one identification parade and the other accused at the second identification parade. Appellant 'N' had stated during the identification parade that he had been shown to the witnesses and had also been photographed. On the question whether the conviction could be sustained on this evidence :- HELD : Facts which establish the identity of an accused person are relevant under s. 9 of the Evidence Act. The substantive evidence of identification is the statement of the witness in court. But the evidence of identification at the trial for the first time is from its very nature weak. A prior test identification, therefore serves to corroborate the evidence in court. The purpose of identification parades which belong to the investigation stage is to enable the witnesses to identify persons concerned in the offence, who are not previously known to them, and thereby to satisfy the investigating officers of their bona fides by pointing out the persons they recognise as having taken part in the crime. These parades, thus furnish evidence which corroborates the testimony of the identifying witnesses in court. These parades do not constitute substantive evidence. Keeping in view the purpose of identification parades, the precautions to eliminate suspicion of unfairness and to reduce chances of testimonial error. They must take intelligent interest in the proceedings bearing in mind two considerations : (i) that the life and liberty of an accused may depend on their vigilance and caution, and (ii) that justice should be done in the identification. Generally, the Magistrates must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The persons required to identify an accused should have had no opportunity of seeing him after the commission of crime and before identification and secondly that they should make no mistakes or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly disincline. [570 H; 571 A-H; 572 A- C] In the present case the evidence shows that the Magistrate paid scant attention to the direction in the identification memos. The memos do not show that the parades were held by the Magistrate with the degree of vigilance, care and anxiety their importance demanded, and they were filled up in a very casual manner. They could only have a somewhat fleeting glimpse of the assailants. The prosecution has also not explained why the second eve witness had to go to the jail for identification a third time. The two eve witnesses did not state in evidence what particular part the two appellants played in the occurrence. The third witness who come on the scene on hearing the alarm could only have had a still more fleeting glimpse. [572 F-G; 573 D-E; 577 C- D] The statements of the three witnesses were also otherwise unimpressive and coupled with the fact that there was a possibility of their having seen at least one of the accused (appellant B) outside jail gates a week before the identification parades were held, the test identification parades could not be considered to provide safe and trustworthy evidence on which the appellants' conviction could be sustained. [577 E] (2) The entire case depended on identification of the appellants and the identification was founded solely on test identification parades. The 5 66 High Court did not correctly appreciate the evidentiary value of the parades and proceeded on the erroneous assumption that it is substantive, evidence and that on the basis of that evidence alone the conviction could be sustained. The High Court also ignored. important evidence on the record in regard to the manner in which test identification parades were held and the connected circumstances suggesting that they were held more or less in a mechanical way without the necessary precautions being taken to eliminate unfairness. This is an erroneous way of dealing with test identification parades and since it has caused failure of justice, this Court is justified in interfering under Art. 136 [577 H; 580 C-G] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 199
and 200 of 1969.
Appeals by special leave from the judgment and order dated
April 28, 1969 of the Allahabad High Court in Criminal
Appeal No. 2623 of 1968 and Referred No. 160 of 1968.
K. Baldev Mehta, for the appellant (in Cr.A. No. 199 of
1969).
G. L. Sanghi, P. N. Tiwari, J. B. Dadachanji,0. C.
Mathur and Ravinder Narain, for the appellant (in Cr. A.No.
200 of 1969).
O. P. Rana, for the respondent (in both the appeals).
The Judgment of the Court was delivered by
Dua, J.-These two appeals by special leave arise out of a
joint trial of the present appellants and Jagdish and
Sugriv. All the four accused were convicted by the trial
court; the present appellants were sentenced to death under
S. 302 read with s. 34 I.P.C. and Jagdish and Sugriv to life
imprisonment under S. 302 read with s. 109, I.P.C. They
challenged their conviction by separate appeals to the
Allahabad High Court. By means of a common judgment the
High Court dismissed the appeal of the present appellants
(Crl. A. No. 2623 of 1968) and allowed that of their co-
accused Jagdish and Sugriv (Crl. A. No. 2648 of 1968). The
sentence of death imposed on the present appellants under s.
302, I.P.C. for the murder of Lala Hazarilal was confirmed.
According to the prosecution story Jagdish and Sugriv
related to each other as cousins belonged to village
Bidrika. They used to harass the poor inhabitants of that
village whereas deceased Hazarilal used to espouse their
cause. As a result, there was not much love lost between
Jagdish and Sugriv on the one side and Hazarilal on the
other. Some years ago Jagdish, along with some others, was
prosecuted for forging accounts of a Co-operative Society
and was found guilty the Assistant Sessions Judge, though
released on probation under the U.P. First Offenders’ Pro-
567
bation Act. Bhoodev, at whose instance, that prosecution
was initiated, presented a revision petition in the High
Court ‘against the order of the Assistant Sessions Judge
challenging the benefit given to Jagdish under the U.P.
First Offenders’ Probation Act. The High Court allowed the
revision on July 26, 1967 and imposed on Jagdish a
substantive sentence of rigorous imprisonment for two years.
Bhoodev had the support of Hazarilal in the trial court and
the revision to the High Court was also preferred by him at
the instance of Hazarilal. This further enraged Jagdish and
Sugriv and Jagdish is stated to have threatened Hazarilal
with death about ten days before his ‘murder. This happened
before Jagdish was taken into custody pursuant to the order
of the High Court imposing on him the sentence of,
imprisonment. This was alleged to be the immediate motive
for Hazarilal’s murder. In 1962 also Jagdish and Sugriv had
also been prosecuted by Hazarilal under s. 452/326 and s.
147, I.P.C. but they were acquitted. Ever since then,
according to the prosecution, Jagdish and Sugriv had been
harboring ill feelings towards Hazarilal and planning to
have him murdered through hired assassins. On September 11,
1967 Ghaziuddin (P.W. 2) is stated to have gone to the house
of Jagdish and saw Jagdish and Sugriv in the company of four
unknown persons and over-heard Jagdish saying that the said
four persons had left the job unfinished though they had
visited the village often and telling them that the balance
would be paid to them only after the job was accomplished.
The following day at about 10 a.m. when it was drizzling
Hazarilal was sitting in his Gher also described as Nohara
on a cot and his brother Inderjit (P.W. 1) and Kanwar Sen
(P.W. 3) were squatting on a heap of fodder nearby. They
were all sitting in the Duari because that was the only
place ;which provided protection against rain. Suddenly
four unknown persons entered the Nohra through the Duari.
Two of them caught hold of Inderjit and Kanwar Sen, one of
them sat on the cot of Hazarilal and pressed his legs and
the fourth who was carrying a red jhola in his hand, took
out a pistol from the jhola and fired at Hazarilal from
point blank range. Hazarilal fell down. The fourth man re-
loaded his pistol and fired another shot which hit Hazarilal
on the chest killing him instantaneously. Inderjit and
Kanwar Sen raised alarm. On hearing their alarm and the
sound of pistol fire, Ram Singh, Imam Khan and Ranchor (P.W.
4) came to the scene of occurrence and saw the four
assailants running away from the Nohra. According to the
prosecution, the four unknown assailants murdered Hazarilal
at the instigation of Jagdish and Sugriv. First information
report was lodged by Inderjit at police station Iodged,
about ten miles away from the place of occurrence at 2.35
p.m. the same day (September 12. 1967). On his return from
the police station Inderjit met Ghaziuddin (P.W. 2) from
whom he learnt, what he (Ghaziuddin) had seen and heard a
day previous,
568
at the house of Jagdish. S. K. Yadav, Sub-Inspector with
whom the F.I.R. was lodged reached the scene of the
occurrence at 6.15 p.m. the same day. He found one
discharged cartridge and two wads at the place of the
occurrence. He recorded the statements of some witnesses,
including Ghaziuddin on the following day. Further
investigation was conducted by Sub-Inspector Harcharan Singh
(P. W. 21). Jagdish and Sugriv on whom suspicion had
fallen were not traceable with the result that warrants for
their arrest were made over to Sub-Inspector Yadav.
Proceedings under ss. 87 and 88, Cr. P.C. were started
against them but soon thereafter they surrendered themselves
in court on September 29, 1967. During investigation the
Investigating Officer learnt about the complicity of the
present appellants and Naubat was arrested on October 9,
1967. Budhsen, however, was arrested in connection with
some other case on October 14, 1967 by Sasni police.
Magistrate Pratap Singh (P.W. 20) held identification parade
of Naubat on October 21, 1967 and of Budhsen on October 28,
1967.
The trial court came to the conclusion that Jagdish and
Sugriv had abetted the murder of Hazarilal and appellants
Naubat and Budhsen, had committed the murder. Naubat and
Budhsen were, therefore, Sentenced to death and Jagdish and
Sugriv to life imprisonment.
On appeal the High Court re-summoned Lakhan Singh, Head
Constable of Thana Sasni, District Aligarh, who had already
appeared at the trial as P.W. 14 and recorded his additional
statement. Lakhan Singh had taken Budhsen in custody at
police station Sasni. His statement as P.W. 14 left some
doubts in the minds of the Judges of the High Court to clear
which it was considered necessary to examine him again in
the High Court. After considering the entire evidence the
High Court acquitted Jagdish and Sugriv but maintained the
conviction and sentence of Budhsen and Naubat, appellants.
The statement made by Ghaziuddin, (P.W. 2) was not believed
by the High Court and his version was described as unnatural
and improbable. That court also ignored the evidence of
Chandrapal (P.W. 5), Girendra Pal Singh (P.W. 7) and
Lakhanpal (P.W. 8) on the ground of their being either
irrelevant or unreliable. The existence of inimical
relations between Jagdish and Sugriv on one side and
Hazarilal on the other was not considered to be a
sufficiently strong circumstance against Jagdish and Sugriv
so as to hold them guilty of instigating Hazarilal’s murder.
As against Naubat and Budhsen, appellants in the opinion of
the High Court primary evidence consists of their iden-
tification by some of the witnesses. The court took into
consideration the identification parade for Naubat held by
Magistrate pratap Singh on October 21, 1967 and that for
Budhsen on October 28, 1967. It was principally the
evidence of identification on which reliance was placed for
holding the present appel-
569
lants to be responsible for the murder of Hazarilal. The
three witnesses on whose evidence in regard to the
identification the High Court relied are Inderjit, Kanwar
Sen and Ranchor. The additional evidence recorded by the
High Court consisted of the statement of Lakhan Singh. That
court also inspected the original entries in the general
diary of the police as well as their carbon copies. Lakhan
Singh stated in the additional evidence that he had made
entry at sl. no. 9 of the general diary of the original re-
port under s. 307, I.P.C. and s. 25 Arms Act made by
Pannalal against Budhsen (Ex. Ka. 10). He denied that
blank space had been left in the general diary for entering
the particulars of the pistol (tamancha) and cartridges etc.
In regard to this denial in Lakhan Singh’s statement the
High Court observed that the weapon of offence with which
the offence under s. 307, I.P.C. was said to have been
committed by Budhsen was probably a later addition though
the court did not consider it proper to record a firm
finding to that effect. A major part of the judgment of the
High Court is confined to the evidence in regard to the
identification parade and to the question whether the
identifying witnesses had an opportunity of seeing the
appellants before their identification. Holding that there
was no opportunity for those witnesses to see the appellants
before their identifications the court confirmed their
conviction and sentence as already observed.
In this Court Shri Sangi and Shri K. Baldev Mehta addressed
us in support of the appeals of their respective clients
Naubat and Budhsen. According to their submission the
evidence in regard to the identification parades is of an
extremely weak character and is wholly uninspiring.
According to them it does not bring home to the appellants
the offence of murder beyond reasonable doubt. It was also
urged that according to the prosecution evidence four
unidentified, persons having participated in the unfortunate
murder of Hazarilal there is no reliable evidence showing
that any one of the present appellants actually fired the
fatal shot. Evidence regarding any specific part played by
the appellants, they contended, is also not forthcoming on
the record. On this ground it was emphasised that in any
event the extreme penalty of death is uncalled for.
Since according to the High Court the primary evidence
against the appellants is that of their identification by
the witnesses the crucial point seems to us to be the
admissibility and’ value of the evidence regarding the
identification of the appellants. We accordingly consider
it necessary, on the facts and circumstances of this case,
to examine that evidence. The High Court, as already
observed by us, has ignored the evidence of Chandrapal (P.W.
5) Girendrapal (P.W. 7) and Lekhraj (P.W. 8) as either
irrelevant or unreliable. The identification of the
appellants is.
57 0
thus confined to the testimony of Inderjit (P.W. 1), Kanwar
Sen (P.W. 3) and Ranchor (P.W. 4). Turning first to the
evidence of Inderjit it is important to bear in mind that he
claims to be present at the time of the alleged occurrence
along with Kanwar Sen. He also lodged the first information
report at 2.35 p.m. on the day of the occurrence. In the
report, this is what P.W. I stated in regard to the
identification of the alleged assailants and the respective
parts played by them in the commission of the offence:
“Today at about 10 O’clock in the day I and my
brother Hazari Lal and his partner (Sajhi)
Kumar Sen son of Chidda Jatav of my village
were present at the Gher, and it was raining a
little, that four persons dame to the Gher and
out of them, one man sat on the cot near my
brother and two persons caught hold of me and
Kumar Sen and the fourth man having taken out
the Katta (pistol) from inside the Jhola which
he was carrying in his hand, fired shot at my
brother Hazari Lal. My brother jumped and
fell down the cot, and he fired another shot
at my brother, who had fallen down which hit
Hazarilal at his chest as a result whereof he
died. We both raised alarm. On hearing our
alarm Imam Khan son of Lal Khan, Ranchor Jatav
and Ram Singh tailor of my village also came
up and then the accused persons having come
out and ran away. These persons have also
seen the four accused persons, while coming
out of the gher and running away. Jagdish and
Sugriv having called, these four Badmashes
have got committed the murder of my brother.
We all can recognise these Badmashes on being
confronted.”
This description of the assailants could hardly provide the
investigating authorities with any firm starting point from
which they could proceed to take the necessary measures for
the discovery and arrest of the alleged offenders as
required by S. 157, Cr. P.C. It is unfortunate that the
Sub-lnspector S. K. Yadav, (P.W. 19) did not care to get
more information about the description of the alleged
assailants by questioning the informant. Of course, Jagdish
and Sugriv were mentioned in the F.I.R. as the persons who
had employed the four assailants for murdering the deceased
but having been acquitted they do not concern us.
Now, facts which establish the identity of an accused person
are relevant under S. 9 of the Indian Evidence Act. As a
general rule, the substantive evidence of a witness is a
statement made in court. The evidence of mere
identification of the accused person at the trial for the
first time is from its very nature inherently of a weak
character. The evidence in order to carry conviction
571
should ordinarily clarify as to how and under what
circumstances he came to pick out the particular accused
person and the details of the part which the accused played
in the crime in question with reasonable particularity. The
purpose of a prior test identification, therefore, seems to
be to test and strengthen the trustworthiness of that
evidence. It is accordingly. 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, in the form of earlier
identification proceeding. 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 cor-
roboration. The identification parades belong to the
investigation stage. They are generally held during the
course of investigation with the primary object of enabling
the witnesses to identify per’sons concerned in the offence,
who were not previously known to them. This serves to
satisfy the investigating officers of the bona fides of the
prosecution witnesses and also to furnish evidence to
corroborate their testimony in court. Identification
proceedings in their legal effect amount simply to this:
that certain persons are brought to jail or some other place
and make statements either express or implied that certain
individuals whom they point out are persons whom they
recognise as having been concerned in the crime. They do
not constitute substantive evidence. These parades are
essentially governed by s. 162, Cr. P.C. It is for this
reason that the identification parades in this case seem to
have been held under the supervision of a Magistrate.
Keeping in view the purpose of identification parades the
Magistrates holding them are expected to take all possible
precautions to eliminate any suspicion of unfairness and to
reduce the chance of testimonial error. They must,
therefore, take intelligent interest in the proceedings,
bearing in mind two considerations : (i) that the life and
liberty of an accused may depend on their vigilance and
caution and (ii) that justice should be done an the
identification Those proceedings should not make it
impossible for the identifiers who, after all, have, as a
rule, only fleeting glimpses of the person they are supposed
to identify. Generally speaking, the Magistrate must make a
note of every objection raised by an accused at the time of
identification and the steps taken by them to ensure
fairness to the accused, so that the court which is to judge
the value of the identification evidence may take them into
consideration in the appreciation of that evidence. The
power to identify, it may be kept in view, varies according
to the power of observation and memory of the person
identifying and each case depends on its own facts, but
there are two factors which seems to be of basic importance
in the evaluation of identification. The persons required
to identify an accused should have bad no, opportunity of
seeing him after the commission of the crime and
572
before identification and secondly that no mistakes are made
by them or the mistakes made are negligible. The
identification to be of value should also be held without
much delay. The number of persons mixed up with the accused
should be reasonably large and their bearing and general
appearance not glaringly dissimilar. The evidence as to
identification deserves, therefore, to be subjected to a
close and careful scrutiny by the Court. Shri Pratap Singh,
Magistrate, who conducted the identification, has appeared
at the trial as P.W. 20. The identification memo in respect
of Naubat, appellant, is Ex. Ka 20 dated October 21, 1967
and in respect of Budhsen is Ex. Ka 21, dated October 28,
1967.
In Ex. Ka 20 we find a note that Naubat had stated that he
had been shown to the witnesses and had also been
photographed. Column 7 of the memo requires to be inserted
therein the name or description of the person the witness
came to identify and this is to be recorded in the words of
the witness. In Ex. Ka 20, Inderjit said
“I saw the accused while committing the murder. I did not
know him before.”
As against the other five witnesses namely Kanwar Sen,
Ghaziuddin, Imam Baksh, Chandrapal and Ranchor we only find
the word “Do” In this connection the note at the foot of the
printed form containing the following direction seems to us
to be, of some importance:
“N.B.-It is very useful to note whether the
witness knew the name of the person he had
come to identify or he only described him in
some such way as the man who was standing at
the door at the time of the dacoity. The
witness is not to be asked in a general way,
identify whomsoever you know.”
It is obvious that scant attention was paid to the letter
and spirit of this note. Shri Pratap Singh (P.W 20) when
cross-examined on behalf of Naubat said:”
“I asked the witnesses who had come to
identify accused Naubat as to what they had
seen Naubat doing. Whatever they told me was
recorded by ‘me in col. 7 of the memo.
Whatever the first witness Inderjit told was
recorded word for word by me and since the
other witnesses repeated the same thing I
noted down the word ‘as above’ (uparyukt)”.
The remarks of the Magistrate were also
required against the enquiry on point no. 2 at
the bottom of the first sheet of Ex. Ka 20
which relates to the step taken by the jail
authorities to ensure the
5 7 3
proper conduct of the proceedings. We do not
find any remarks by the Magistrate on this
point in Ex. Ka 20. His remarks ‘would
certainly have provided helpful information on
an important point without which the court is
left only to guess.
In the identification memo in respect of
Budhsen (Ex. Ka 21) in column 7, against the
name of Inderjit, witness, we find the
following entry:
“I came to identify the person who committed
the murder of my brother”.
Against the name of Imam Baksh we find the
following entry:
“Came to identify the person who committed the
murder”.
Against the names of the remaining four
witnesses, who were the same as mentioned in
Ex. Ka 20, we find the word “Do”. This means
that their answer is the same as that of Imam
Baksh. In this form also there are no remarks
by the Magistrate in respect of the steps
taken by the jail authorities to ensure proper
conduct of proceedings. The memos of the
identification parades do not show that the
parades were held by the Magistrate with the
degree of vigilance, care and anxiety their
importance demanded. The casual manner of
filling the identification memos is further
apparent from the fact that Budhsen,
appellant’s admission into the jail is shown
therein as October 15, 1967 instead of October
14, 1967. This mistake was admitted by P.W.
20 in cross-examination without offering any
explanation for the mistake.
We may here appropriately point out that Shri
Pratap Singh (P.W. 20) was called upon as a
Magistrate only to conduct the identification
proceedings and it was beyond his duty to
interrogate the witnesses for eliciting other
facts or to require them to make any statement
beyond mere identification.
This takes us to the evidence of the
identifying witnesses. Imam Baksh was not
produced at the trial. The other witnesses
except three, were not relied upon by the High
Court. We need, therefore, confine ourselves
only to those three witnesses.
Inder it (P.W. 1) brother of Hazari Lal,
deceased, deposed at the trial that on
September 12, 1967 at 10 a.m. he, Kanwar Sen
and Razarilal were sitting in the Gher, about
50 paces towards the east of the village
abadi. Hazarilal was sitting on a cot and
Kanwar Sen and the witness were sitting on a
heap of- fodder nearby in the Duari because
that was the only place affording shelter
against rain. The cot on which Hazarilal was
sitting was
574
in the middle of the Duari. What the witness
next stated now be reproduced in his own
words:
“Four unknown persons entered the Duari from
outside. One of them sat down by the headside
of my brother and another proceeded to
wards the
charpoy of my brother. Of the remaining two,
one caught hold of me, while the other caught
hold of Kunwar Sen. Kunwar Sen and I
immediately raised an alarm The person, who
proceeded towards the charpoy of my brother,
took out a country made pistol from the bag
and shot at my brother. It was he who was
holding the bag in his hand. The shot hit my
brother and he jumped from the charpoy and
fell down. The person who was sitting by the
headside of my brother pressed my brother’s
legs with his legs. The person, armed with
the pistol, again loaded the pistol and shot
at my brother’s chest. My brother died
immediately.”
On hearing my shouts and the sound of pistol
firing Ram Singh, Imam Khan and Ranchor
arrived. The Badmashes escaped through the
Duari and ran away towards the east.”
It is noteworthy that this witness has not specifically
stated that Naubat, appellant, had fired the pistol shot.
It is only by reference to the person holding a bag from
which the pistol was taker out that it is sought to be
implied that Naubat had fired the shot In court Naubat was
not specifically identified as the person firing the shot or
even as a person holding the bag the witness has also not
stated as to what part the other appellant played in the
occur rence. A little lower down the witness proceeds :
“I never saw before the four persons who had
come to my brother’s gher on the. day of
occurrence. I bad come to the District Jail,
Aligarh to identify them. (The witness, having
touched the accused Naubat and Budhsen,
stated) I identified them in jail. I saw them
for the first time on the day of occurrence
and thereafter I saw them in jail at the time
of identification. I did not see them
anywhere in. the intervening period.
The question naturally arises if on this state of his
testimony the identification made by Inderjit can be held to
be a reliable piece of evidence on which the conviction of
the appellants can be sustained. In evaluating his
testimony we may appropriately consider bow far his
description of the actual occurrence inspires confidence We
are asked to believe that one of the four assailants sat
down near the head of Hazarilal and pressed the legs of the
latter with
5 7 5
his own legs and he and the deceased were in this position
when one of the assailants fired at. Hazarilal, who
thereupon jumped down from the cot. When we picture
to ourselves the occurrence as narrated we find it to
be unrealistic and, therefore, untrust worthy, if not
fantastic. There is undoubtedly considerable embellishment
in the court version as compared to what was stated by the
witness in the F.I.R. This embellishment does not add to the
credibility of the story but it certainly suggests that the
witness has a highly imaginative mind and is capable
of playing on his imagi nation. We, therefore, do not
consider it to be safe to hold on his evidence that the two
appellants were among the assailants and that Naubat had
fired the fatal shots. Kanwar Sen (P.W. 3) deposed that on
the day of the occurrence he was sitting in the Nohra of
Hazarilal who was sitting on a cot. He and Inderjit were
sitting on the fodder because it was drizzling. The
statement in regard to the occurrence may now be described
in his own words
“Four unknown persons came, one of whom had
ared jhola. One of them sat down on headside
of Hazarilal and another proceeded ahead. The
remaining two caught hold of me and Inderjit.
Inderjit and I raised an alarm. The person
having the red Jhola took out a pistol from
the Jhola and fired at Hazarilal. On being hit
with the shot, Hazarilal fell down. The
badmash, who was sitting on the headside of
Hazarilal, pressed his legs with his legs.
Having loaded the pistol, the person armed
with pistol, fired a shot at Hazarilal.
Hazarilal died. Ram Singh Ranchor and Imam
Khan arrived at the spot. The badmashes went
away through the eastern side.
I did not know all the four badmashes from
before. (Having touched Budh and Naubat, the
witness stated) Identified them in jail. I
saw these two accused at the spot for the
first time and thereafter in jail. I did not
see them anywhere in the intervening period.”
In cross-examination the witness admitted that the
assailants has been seen by him only for about three or
four minutes. He had gone to the jail for identification on
three occasions. On two occasions he identified the accused
persons in separate parades but did not identify anyone on
his third visit. The third visit deposed by him seems to us
to be a somewhat suspicious circumstance and the prosecution
has not cared even to attempt to explain this statement. The
witness was also unable to state as to which accused had
been identified by him in the first parade and which in the
second-. He was further unable to tell the dates on which he
had gone to the jail for identification. According to
him he had gone to the jail at about II or 12 O’clock during
the day time.
-576
These two witnesses claimed to have seen the actual
occurrence which took three or four minutes. Two assailants
held these two witnesses and one sat on the cot of the
deceased and pressed the legs of the deceased with his own
legs and the fourth one fired two shots having re-loaded the
pistol after the first shot. Their glimpses ,of the
assailants would of course be somewhat fleeting but the
different parts played by the four assailants would
certainly have left on their minds a fairly firm impression
as to what part the two appellants had played in. that
sordid drama. The power to identify undoubtedly varies
according to the power of observation and memory of the
identifier and an observation may be based upon small
minutiae which a witness, especially a rustic, uneducated
villager may not be able to describe or explain. In this
case we find that P.W. 4 Ranchor does not know the
difference between a minute and a second. An illiterate
villager may also at times be found to be more observant
than an educated man and his identification in a given case
may impress the court without the witness’ being able to
formulate his reasons for the identification. But on the
peculiar facts and circumstances of this case one would
expect these two witnesses to state what particular part
these two appellants played in the course of the occurrence.
Without some clear indication to that effect it would be
difficult for a judicial mind to rely for conviction on the
general assertion of these witnesses that the appellants
were among the assailants who murdered the deceased. Ranchor
(P.W. 4) gave his version as follows:
“It happened 131 months ago. It was 10 a.m. I
had gone to the shot) of Sannu Lal Patwari to
make purchases. Ram Singh, Darzi, was present
at that shop along with me. I heard an alarm
from the eastern side in which direction lay
the Nohra of Hazarilal. I heard the sound of
a fire. Ram Singh and I rushed towards the
Nohra. When both of us were at a distance of
15 Dacron from the Nohra, I heard the sound of
another fire. I saw four unknown badmashes
coming out of the Nohra of Hazarilal. They
ran away towards the east. There badmashes
were empty handed and one of the badmashes had
a Katta in his right hand and a red jhola in
his left hand. I went to the Nohra and saw
that Hazarilal was lying dead and Tnderjit and
Kanwar Sen were present there. Imam Khan also
reached the Nohra of Hazarilal after me.
I had gone to the District Jail in order to
identify the badmashes (Having touched the
accused Naubat and Budhsen, the witness
stated) I identified them in the District
Jail. At first 1 saw them running away from
the Nohra. Thereafter, identified them in the
District Jail.
5 77
I never saw them in the intervening period.
(Having touched Naubat, accused, the witness
stated). He had a Katta in his right had and
a jhola in his left hand.”
In cross-examination he stated that he had gone to the
District Jail, Aligarh twice for identification. In the,
first identification he identified the person who had ‘a
jhola in his hand and at the second identification he
recognised the other, Budhsen. He also stated that before
identification Proceedings, the Deputy Sahib had enquired
from him as to whom he had come to identify to which he had
replied that he had come to identify the persons who had
committed the murder of Hazarilal. This witness only saw
the assailants when they were running away after the alleged
murder. Normally speaking, therefore, his would be a still
more fleeting glimpse of the assailants as compared to that
of the two earlier witnesses. To sustain the conviction on
his evidence as to identification one would certainly expect
a more firm an( positive reference to the appellant, who was
holding a jhola and A pristol (katta). during the
identification parade. Vithout such corroborative evidence
the statement in court identifying Naubat, appellant, would
be of little value.
This is not all. The statements of these three witnesses
are otherwise also unimpressive and coupled with the fact
that the possibility of these persons having seen at least
Budhsen on October 21, 1967 outside the, jail gates whom
they are supposed to have identified a week later the test
identification parades cannot be considered to provide safe
and trustworthy evidence on which the appellants’ conviction
has been sustained by the high Court.
Shri O. P. Rana on behalf of the State very strongly argued
that under Art. 136 of the Constitution this Court does not
interfere with the conclusions of facts arrived at on
appreciation of evidence and in this case on consideration
of the evidence relating to the test identification parades
two courts below have come to a positive conclusion that the
appellants were two out of the four unknown assailants of
Hazarilal, deceased. This Court, so argued the counsel,
should affirm that conclusion in the absence of any proved
legal infirmity. In regard to the sentence the counsel con-
tended that this is a matter which rests in the discretion
of the trial court and when the sentence of death is
confirmed by the High Court this Court should not interfere
on appeal under Art. 136.
It is undoubtedly true that under Art. 136 this Court does
not ordinarily interfere with conclusions of fact properly
arrived at by the High Court on appreciation of evidence on
the record. except where there is legal error or some
disregard of the forms of legal’ process or a violation of
the principles of natural justice resulting
13 Sup. Cl/70-8
578
in grave or substantial injustice. In Tej Narain v. The
Stale of U.P. (1) this Court, after examining its previous
decisions in which this Court had not accepted concurrent
findings or had re-examined the evidence for itself, said
“The above cases show that this Court has not
accepted concurrent findings of fact if there
is no evidence for the finding or if there has
been an omission to notice material points
while appreciating evidence or to bear in mind
relevant considerations which swing the
balance in favour of the accused. It has also
on occasions reexamined the evidence in view
of the fact that the case against the accused
was based on circumstantial evidence and it
was of an extraordinary nature. In the case
before us, as we will show presently the, High
Court appears to have completely overlooked
the variation in certain important aspects by
P.W. 3, while deposing at the trial from what
he had stated earlier’ and consequently the
High Court could not apply its mind
to their
significance. In view of this infirmity in
the judgment and other considerations which
will be pointed out later we are satisfied
that this is one of the exceptional cases in
which we should undertake the examination of
the entire evidence and appraise it.”
In that case the following observations of Hidayatullah J.,
(as the present Chief Justice then was) from the judgment in
Anant Chintaman Labu v. The State of Bombay (2) were
reproduced with approval:
“Ordinarily, it is not the practice of this
Court to reexamine the findings of fact
reached by the High Court particularly in a
case where there is concurrence of opinion
between the two Courts below. But the case
against the appellant is entirely based on
circumstantial evidence, and there is no
direct evidence that he administered a poison,
and no poison has, in fact, been detected by
the doctor, who performed the postmortem
examination, or by the Chemical Analyser. The
inference of guilt having been drawn on an
examination of a mass of evidence during which
subsidiary findings were given by the two
Courts below, we have felt it necessary, in
view of the extraordinary nature of this case,
to satisfy ourselves whether each conclusion
on the separate aspects of the case, is
supported by evidence and is just and proper.
Ordinarily, this Court is not required to
(1) Crl. As. Nos. 81, 112 and 132 of 1964
decided on 23-10-1964.
(2) [1960] 2 S.C.R. 460.
579
enter into an elaborate examination of the
evidence, but we have departed from this rule
in this particular case, in view of the
variety of arguments that were addressed to us
and the evidence of conduct which the
appellant has sought to explain away on
hypotheses suggesting innocence. These
arguments, as we have stated in brief, covered
both the factual as well as the medical
aspects of the case, and have necessitated a
close examination of the evidence once again,
so that we may be in a position to say what
are the facts found, on which our decision is
rested ”
In Mahebub Beb v. The State of Maharashtra(1) this Court
observed :
“We have been taken through the entire
evidence of all the important witnesses by
counsel for the appellants and we do not think
that the conclusion recorded by the Sessions
Judge and confirmed by the High Court was one
which could not reasonably be arrive
d at by
those Courts. There are undoubtedly certain
discrepancies in the statements of the four
witnesses, Anna, Kisan, Sahebrao and Sukhdeo.
But what weight should be attached to the
evidence of the witnesses was essentially a
matter with which the Court of first instance,
before whom the witnesses were examined was
concerned, and if the view taken by that Court
is confirmed by the High Court, even assuming
that this Court may, if the case were tried
before it, have taken a different view,
(though we do not say that in this case we
would have so done) we would not be justified
in making a departure from the settled
practice of this Court and proceed to review
the evidence.”
In Brahmin Ishwar Lal Manilal v. The State of Gujarat
(2) Court stated the position thus :
“We have dealt with the arguments of Mr.
Shroff at some length but we wish to restate
that this Court will not examine for itself
evidence led in a criminal case unless it is
made to appear that justice has failed by
reason of some misapprehension or mistake in
the reading of the evidence by the High Court.
The High Court must be regarded as the final
court in criminal jurisdiction and special
leave given in a criminal case does not
entitle the person to whom the leave is given
to canvass the correctness of the findings by
having the evidence read and ra-
(1) Crl. A. No. 120 of 1964 decided on 19th
March, 1965.
(2) Ctl. A.No. 129 of 1963 decided on
August 10, 1965.
580
appraised. There must ordinarily be a
substantial error of law or procedure or a
gross failure of justice by reason of
misapprhension or mistake in reading the
evidence or the appeal must involve a question
of principle of general importance before this
Court will allow the oral evidence to be
discussed.”
In G. V. Subbramanyam v. State. of Andhra Pradesh (1) this
Court appraised the evidence on the plea of self-defence and
allowed the appeal because the approach of the High Court on
this plea was found to be incorrect. Again, in Raja Ram v.
State of Haryana (2 ) because of special features like
rejection by the court below of a considerable mass of
evidence on serious charges, this Court looked into the
evidence to see how far the case as framed against the
appellant could be held proved.
Before us the entire case depends on the identification of
the appellants and this identification is founded solely on
test identification parades. The High Court; does not seem
to have correctly appreciated the evidentiary value of these
parades though they were considered to be the primary
evidence in support of the prosecution case. It seems to
have proceeded on the erroneous legal assumption that it is
a substantive piece of evidence and that on the basis of
that evidence alone the conviction can be sustained. And
then that court also ignored important evidence on the
record in regard to the manner in which the test
identification parades were held, and other connected
circumstances suggesting that they were held more or less in
a mechanical way without the necessary precautions being
taken to eliminate unfairness. This is clearly an erroneous
way of’ dealing with the test identification parades and has
caused failure of justice. Shri Rana laid great emphasis on
the fact that there is no enmity shown between the witnesses
and the appellants. In our opinion, though this factor is
relevant it cannot serve as a substitute for reliable
admissible evidence required to establish the guilt of the
accused beyond reasonable doubt. The evidence in regard to
identification having been discarded by us as legally infirm
and which does not connect the appellants with the alleged
offence it cannot by itself sustain the conviction of the
appellants. Non-disclosure on the record as to how and when
the Investiga to the lacuna in the prosecution case. These
appeals are allowed and the accused acquitted.
Y.P. Appeals allowed.. (1) [1970] 1 S.C.C. 225.
(2) crl. A. No. 62 of 1968 on March 26, 1970
5 81