JUDGMENT
Jahagirdar, J.
1. One Keshavji Ranshi Chheda, a trader in edible oils and having his business on Swami Vivekanand Road in the Irla area of Vile Parle, was going to the Sangli Bank on 28th May, 1980 at about 10 a.m. to deposit an amount of Rs. 37,200/- in the said Bank. He was carrying the said amount in a rexin bag and naturally he had also with him a pay-in-slip on which apparently the details of the amount which he was going to deposit had been mentioned. When he reached the gate of the Bank, the present appellant before us, who was accused No. 2 in the Court below, suddenly appeared on the scene with a sword in his hand and assaulted the said Keshavji Ranshi. This naturally resulted in the dropping of the bag by Keshavji Ranshi. Accused No. 2 ran away with the bag containing the amount. Members of the public are alleged to have chased accused No. 2 and ultimately the bag was returned to Keshavji Ranshi. When he opened the same, he found that the bag contained about Rs. 15,000/- less than what he had when he had proceeded to the Bank earlier. It is in evidence, and there is no reason to suspect the same, that Keshavji Ranshi was in fact hospitalised in a nursing home nearby and some surgical treatment had also to be given to him. It had been mentioned that he was in the nursing home for nearly 7 days. In the meantime, one Shaikh Mohommed Hanif, who was nearby, chased accused No. 2 and was able to apprehend him Claiming to have some sense of public duty, the said Shaikh Mohommed took accused No. 2 in a taxi to the police station. However, two other members of the public got into the taxi telling Shaikh Mohommed that they would assist him in taking the apprehended robber to the police station. However, before they reached the police station. Shaikh Mohommed was persuaded to get out of the taxi so that the other two persons alone could take the robber to the police station. It has been claimed by the prosecution that another person one Nandkumar Yadav Pardeshi, was also able to identify accused No. 2 when he was running away from the scene of offence.
2. During the course of the investigation, a sword brought before the Court as article 4 was recovered allegedly pursuant to a statement made by accused No. 2 under S. 27 of the Indian Evidence Act. This was done at about 12-30 p.m. on 28th May 1980. Accused No. 2 himself was arrested on the night of 27th May 1980. The date of the arrest of accused No. 2 ought to be borne carefully in the mind because this affects the acceptability of the testimony of one key witness in this case.
3. Before we proceed to consider the case of the appellant-accused No. 2 before us, for the purpose of the record it may be stated that originally 3 accused were put up for trial in Sessions Case No. 26 of 1981. After that trial proceeded for some time, on 11th October 1982 accused No. 2, who had been released earlier on bail, remained absent. Thereafter it has been mentioned to us that apprehending that he might be punished for remaining absent accused No. 2 actually absconded. As a result, his case was separated from the case of the other two accused. Accused No. 2 was subsequently arrested on 29th November 1982 and thereafter his trial proceeded as Sessions Case No. 166 of 1981.
4. The facts which we have mentioned about the prosecution case above are only few and in reality they are the only facts to be considered in this case. Admittedly accused No. 2 was unknown to every prosecution witness examined in this case. This necessarily means that the involvement of accused No. 2 in the robbery that took place on 26th May, 1980 can be held to be proved only on the basis of the correct acceptable identification made by the prosecution witnesses.
Keshavji Ranshi has been examined as P.W. 1. After describing the incident that took place in which he lost a sum of Rs. 22,000/-, Keshavji Ranshi in his examination-in-chief itself has mentioned as follows :-
“On 28-5-80, the police brought one boy with a sword in his hand to the nursing home, I recognised the boy as the person who gave a blow with the sword and took away my bag.”
We are unable to appreciate the manner in which the police have acted in this particular case. If Keshavji Ranshi was not knowing accused No. 2 earlier and the case against accused No. 2 was to proceed on the basis of the identification that had to be made by Keshavji Ranshi, then naturally one would expect the police to act a little bit more intelligently than what they have done in this case and to arrange an identification parade in which Keshavji Ranshi could have been given an opportunity of identifying his robber. The identification made by Keshavji Ranshi in the nursing home of a person who was brought by the police with a sword in his hand is naturally unreliable and cannot be made the basis of conviction of accused No. 2. After Keshavji Ranshi thus identified accused No. 2, naturally the necessity of holding an identification parade in which Keshavji Ranshi also could be called did not arise. This is an extraordinary case where the identification of a suspect was sought to be established by exposing him to the identifying witness without any precaution whatsoever. That evidence, therefore, will have to be rejected as hopelessly defective. What is shocking is the conduct of the Police in freely utilising the sword allegedly recovered earlier at the instance of accused No. 2.
5. The police officer who has taken this extraordinary step of bringing a suspect with a sword in his hand before the witness who was to identify the suspect seems to be blissfully unaware of the purpose of the identification parade. A long line of decisions of this High Court and of the Supreme Court has repeatedly pointed out the objects of the identification parade. To a police officer of even a limited experience this should be a matters of intimate knowledge. But ignoring such elementary principles underlying the identification parade when the question of identify of a suspect is involved, the police officer in this case has acted rashly by taking the suspect before the identifying witness. If the witnesses identify the suspects for the first time in the Court, that identification evidence cannot be easily accepted though it is substantive evidence. In order to lend assurance to the identification that may be made by the witnesses in the Court, identification parades are held earlier for the witnesses to identify the accused concerned. As has been pointed out by the Supreme Court in Hasib v. State of Bihar, , the purpose of test identification is to test the statement of the witness made in the Court, which constitutes substantive evidence, it being the safe rule that the sworn testimony of the witness in Court as to the identify of the accused requires corroboration in the form of an earlier identification proceeding. Such parades which belong to the investigation stage serve to provide the authorities with material to assure themselves if the investigation is proceeding on right lines. Therefore, it is desirable to hold the identification parades at the earliest opportunity. Moreover, an early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time.
6. When repeatedly the Courts have held that great precautions are to be taken in holding the identification parade in order to be sure of their fool-proof nature, one totally fails to understand how the investigating officer in this case threw away the necessity of an identification parade and produced the suspect before the witness who was to be examined later in the prosecution. The more reprehensible part of the situation is that the suspect was produced with a sword in his hand before the witness who was to identify that suspect. Keshavji Ranshi, therefore, cannot be blamed if he was quick enough to say, ‘that was the person who was responsible for the robbery.’ His mind was concentrated on the sword which was allegedly held by the robber when he went to the Bank. We have, therefore, no hesitation in throwing away the identification made by P.W. 1 Keshavji Ranshi of accused No. 2.
7. We now proceed to examine the evidence with regard to the identification parade which was held by one Dr. Narde examined as P.W. 7. The eye-witnesses to whom we have already made references earlier, namely P.W. 3 Nandkumar Yadav Pardeshi and P.W. 9 Shaikh Mohommed Hanif were the identifying witnesses in the identification parade which was held on 27th May, 1980. Nandkumar Yadav Pardeshi is a young man of 22 years whose occupation is that of a rikshaw driver. In the examination-in-chief he has mentioned that he was residing at the time of the deposition in Misquita Chawl since his childhood. However, in the cross-examination later he has mentioned that he was residing in Old Police Line at Vile Parle. We ought to underline this fact because even P.W. 5 Shaikh Mohommed Hanif has admitted that he was residing at Police Line. The only witnesses who are available for the prosecution case of this type unfortunately happen to be residing in the Police Line.
8. Nandkumar mentions in his examination-in-chief that he noticed the robbery that took place on 26th May, 1980 at about 10 a.m. He saw a person giving a blow on the hand of another person near the elbow and he claimed that he would be able to identify the person who was wielding the sword. Then he has mentioned about the identification parade which was conducted. He was called to the Santa Cruz Police Station on 27th May, 1980. He was made to sit in a room. After some time a police constable along with a person came to him. That other person took him to a room, the door of which was closed. According to him, there was a Magistrate in that room and about 10 to 12 persons standing in a row. The Magistrate asked this witness to identify a person who was holding a sword on 26th May, 1980. This witness says that he identified accused No. 2 before the Court as the one who was holding the sword. In the cross-examination he was asked whether there was any special mark of the identification on the person of accused No. 2 which made him identify him, whether there was anything unusual in the appearance of accused No. 2. The witness has replied as follows :-
“The head of accused No. 2 was shaven and he had a shendi (tuft).”
This necessarily means that accused No. 2’s appearance was unusual or almost striking inasmuch as contrary to the normal practice to be found in these days, accused No. 2 had shaved his head clean and was having a tuft of hair on his head. In reply to another question P.W. 3 Nandkumar stated as follows :-
“In the parade room accused No. 2 was the only person with his head shaved but with a shendi.”
This is a farce of an identification parade. If a suspect is to be identified in an identification parade, the most elementary precaution that should be taken is that persons similar in appearance, height, age, etc. to the accused should be made to stand as dummies in that parade. If the suspect, according to the witness was having a clean shaven head and a shendi and ultimately in the identification parade only one person had a clean shaven head and a shendi, the Witness did the most natural thing to identify him as the person who was the assailant in that case.
9. There are more disturbing features of the identification parade held in this case and for noticing the same we must now turn to the testimony of P.W. 5 Shaikh Mohommed. He has mentioned that he was staying at the time of the incident at the Old Police Line, Vile Parle. Coming to the identification parade, he has mentioned that it took him about 10 minutes to identify accused No. 2 in the parade. In our opinion, this is itself highly suspicious. If a witness requires 8 to 10 minutes going to each and every person in the parade and then identifies a particular person, we would rather suspect his ability to correctly identify. He also mentions that the head of accused No. 2 was shaved. One must not forget that P.W. 5 has followed P.W. 3 who had already given an admission that there was only one clean shaven person with a tuft on his head in the identification parade. When therefore, Shaikh Mohommed makes himself bold in the evidence to say that there were two other persons in the parade whose heads were shaved, we are not impressed by his boldness.
10. Is is possible that Shaikh Mohommed is right and Nandkumar is wrong ? In order to find out an answer to this question, therefore, we must naturally turn to the testimony of P.W. 7 Dr. Narde appointed as Special Executive Magistrate by the Government of Maharashtra who conducted this identification parade. Before we go to the substantive evidence relating to the identification parade, it would be advantageous to note a couple of other features of his evidence. Dr. Narde has mentioned that at about 9 p.m. on 26th May, 1980 he received a telephone message from Santa Cruz Police Station enquiring whether he could hold an identification parade. This necessarily means that he was asked whether he would be able to hold the identification parade on that night or the next day morning. Dr. Narde told the Santa Cruz Police Station that he would be able to hold the parade on the following day at 10 p.m. Dr. Narde is able to hold the identification parades at nights presumably because he may be a very busy medical practitioner. We have already mentioned earlier that accused No. 2 was arrested at about 1 p.m. on 27th May by Sub-Inspector Waghmare. This is the evidence of P.W. 10 S.I. Bhoomkar. Accused No. 1 himself was arrested on 27th May at about 9 p.m. Neither accused No. 1 nor accused No. 2 had, therefore, been arrested when the Santa Cruz Police Station enquired with Dr. Narde as to whether he was free to hold an identification parade on 26th May, 1980. The explanation given by P.W. 10 S.I. Bhoomkar was that he knew the names of the accused persons before their arrest. He was certain that he would arrest the accused persons on 26th May, 1980. It is in the light of this certainty in his mind that presumably he contacted the Special Executive Magistrate on 26th night. Mercifully for him the Special Executive Magistrate did not agree to hold the identification parade on the same night. Otherwise if he had done so, we do not know the discomfiture that would be caused to S.I. Bhoomkar or what steps he would have taken to untilise the otherwise busy time of Dr. Narde. We have no hesitation in holding that the identification by Shaikh Mohommed Hanif is also unreliable.
11. Dr. Narde says that he reached the Santa Cruz Police Station at about 9-30 p.m. on 27th May, 1980. The officer in charge of the police station had already collected certain persons from whom he selected two panchas. Thereafter 20 persons were called to the police station as dummies. Of them, Dr. Narde selected 13 after, to say in his own words, taking into consideration the age, height and apperance of the suspects. Earlier he had seen the two suspects in the lock-up which was on the first floor of the police station. He entered the names and the other details of the dummies in the memorandum. Thereafter he held the identification parade in which P.W. 3 and P.W. 5 Nandkumar and Shaikh Mohommed respectively participated. Dr. Narde has mentioned both in his examination and in the memorandum of the identification parade that these two witnesses identified accused No. 2 Dr. Narde is P.W. 7. He has followed P.W. 5 Shaikh Mohommed Hanif who in turn has followed P.W. 3 Nandkumar. Each of these subsequent witnesses has made an attempt by improving the evidence relating to the identification parade. P.W. 5 Shaikh Mohommed only clarified in the cross-examination that there were two more persons with clean shaven heads. But Dr. Narde has taken the precaution of mentioning in the examination-in-chief itself that since one of the suspect had a shaven head, he had kept three dummies who had shaven their heads. He mentions that those three dummies are at serial Nos. 5, 7 and 9. These names are to be found in the memorandum of the identification parade at Ex. 27. If we look to these names, we notice that at serial No. 5 is one I. Francis. We refuse to accept the fact that Francis had a clean shaven head with a tuft on his head. This is common knowledge. It is conceivable that K. Bharatan and Ramu Nathu at serial Nos. 7 and 9 respectively could have clean shaven heads with tufts on them. But in the memorandum of the identification parade, the description of the dummies has not been mentioned at all. Apart from the fact that dummies who were similar in height, age and appearance to the suspects were kept in the parade, nothing relating to the appearance of the dummies has been mentioned in the memorandum, nor was it mentioned by Dr. Narde in the earlier part of his testimony. Dr. Narde was responsible enough to notice, as he himself says that one of the suspects had a remarkable appearance. If this were so, as a further duty of a responsible person, we would have expected him to made a note of the fact in the memorandum of the identification parade that two dummies were similar to accused No. 2. If, therefore, he is bold enough to assert in the witness box that he had two dummies who were similar in appearance to accused No. 2 we refuse to accept his claim in that regard.
12. How does he remember that the dummies at serial Nos. 5, 7 and 9 in the memorandum were having clean shaven heads ? Dr. Narde is very methodical in his work. He says that he put three cross-marks against these three dummies shown at serial Nos. 5, 7 and 9. The fact that such cross marks were made against the three dummies at serial Nos. 5, 7 and 9 is conspicuous by its absence in the memorandum of the identification parade and he admits so. He also admits that the ink used for the cross mark is different from the ink used in the memorandum of the identification parade, but he has failed to give any explanation for the same. Reading the material which has emerged in the cross-examination of this witness Dr. Narde, we are most hesitant to place any reliance upon his words. He did not even care to record in the memorandum that one of the suspects had his head shaved. This is the carefulness with which Dr. Narde has conducted this identification parade.
13. In the identification parade held by Dr. Narde, two suspects were to be identified. Accused No. 2, who had a somewhat striking appearance, was one of them, while the other was Kanduvel Raju. It is so mentioned in the memorandum of the identification parade and it is also clear from the testimony of Dr. Narde. If the appearance of accused No. 2 was somewhat striking it must necessarily mean that accused Nos. 1 and 2 were dissimilar in their appearances. In such a situation, it is the duty of the officer holding the identification parade to hold two separate identification parades instead of putting both the two suspects in the same parade. In Chapter I of the Criminal Manual issued by this Court it has been directed that two suspects roughly of similar appearance should be paraded with at least twelve other persons, but when the two suspects are not similar in appearance, separate parades should be held using different persons on each parade. The principle underlying this instruction is elementary because if two persons of dissimilar appearance are to be identified, it would facilitate the identification to be made by the identifying witnesses. The following is to be found in the testimony of Dr. Narde :
“Q. Do you know, that if there are two suspects of dissimilar appearance, they should not be included in the same parade ?
A. As far as I remember, there is no mention about it in guidelines.”
14. Obviously Dr. Narde is ignorant not only of the instructions given by this Court but also of elementary common sense which should underlie the exercise of an identification parade to be held by such a person who is regarded as a responsible person by the State Government, he being appointed as a Special Executive Magistrate.
15. We cannot also ignore the fact that Dr. Narde, though he is too busy to hold identification parades in day time, has been obliging enough to have held 300 to 350 parades including identification parades in serious cases like murder. In our opinion, this itself is a serious matter. A doctor having been appointed as the Special Executive Magistrate by the State Government should not be called upon to hold identification parades like this on too many occasions. We do not know whether all these 300 to 350 parades were at the instance of the Santa Cruz Police Station alone. We have already commented most reluctantly but being compelled to do so upon the hopelessly unsatisfactory nature of the conduct of the identification parade in this case. We are also constrained to say that it is hazardous to entrust the duty of holding the identification parade any more to this Special Executive Magistrate. Mr. Y. V. Patil, the learned Public Prosecutor appearing for the State, was not able to show us how our comments on this parade are unjustified and he informs us that he will convey our remarks in this regard to the Commissioner of Police who will thereafter circulate the same for the information of the officers in charge of the several police stations in Bombay.
16. If the identification goes, nothing else remains to involve accused No. 2 in the offence in question.
17. Before we part with this judgment, we should say something about the unsatisfactory nature of the impugned judgment. The learned Additional Sessions Judge has brushed aside the grave infirmities to be found in the evidence relating to the identification of accused No. 2. Since we have as a Court of Appeal deemed it fit to review the entire evidence in details, we have not taken the trouble of saying anything more upon the impugned judgment.
18. In the result, the appeal is allowed. The order of convictions and sentences imposed by the learned Additional Sessions Judge of Bombay in Sessions Case No. 166 of 1981 is set aside. The accused shall be set at liberty forthwith unless otherwise required.
19. Appeal allowed.