JUDGMENT
Sarjoo Prasad, J.
1. In this appeal, the two appellants have been convicted under Section 395, Penal Code, and sentenced each to seven years’ rigorous imprisonment. The case is one of highway robbery in which the appellants along with several other persons are said to have taken part and assaulted two persons, one of them rather severely, removed the goods and properties in their possession.
2. The prosecution story is that on the night of the occurrence, that is, on 6th April 1949 in the early hours of morning, the complainant Baburam Singh, along with his grand, daughter Padmavati, a girl of about 11 or 12 years his Until, Sundar Singh, and a servant, Kesho Kahar, were proceeding from village Onwa to Barbigha to catch a bus there in order to go to railway station Shekhpura for the purpose of entraining for Gaya. This was, as I said, at about 4 A. M. in the morning. The barahil and the servant were carrying luggages, and the barahil had also a lantern in his hand. When they reached a pyne near Barbigha and were proceeding towards the north of the pyne, some brick-bats were thrown at the party, one of which bit the girl Padmavati. This was followed by a number of persons waylaying the complainant and his party. The dacoits assaulted Kesho, who fled away. Baburam himself took to fight, and Sundar, the barahil, who had a lantern in his band, was hit with lathis and bhalas. He in fact received a severe bhala injury between his thigh and abdomen. He fell down unconscious, and the lantern slipped out of his band and fell, the kerosene oil being spilt on the ground which caught fire and blazed up. In the light of the lantern, the blaze of oil and the flash of torches, the dacoits are said to have been identified. Baburam, the complainant, fled to the police station where be was soon joined by the servant. Kesho Kahar, who is P.W. 3 in the case, and there a first information was lodged at about 6 A. M., the place of occurrence being two miles from the police station. The girl, Padmavati, who is P. W. 2 in the case, and Sundar Singh, P. W. 4 were left behind at the place of the occurrence. Constables were accordingly sent to the spot who brought the girl and the injured Sundar Singh with the broken lantern. The police then started investigation, and in course of the investigation, they obtained some clues from the villagers leading to the arrest of the appellants on 7th April 1949.
3. There can be no doubt that the occurrence has been adequately proved. The only question is about the identification of the appellants as being amongst the dacoits. The eyewitnesses to the occurrence are the complainant (P. W. 1), his granddaughter (P. W. 2), the servant Kesho Kahar (P. W. 3), who received injuries, and the barahil Sundar Singh (P. W. 4), who had rather a serious injury in his abdomen. There are two village witnesses, P. Ws. 5 and 6, who deposed that at dawn they noticed the appellants along with eight other persons coming from the opposite direction. The party of the appellants was armed with lathis and bhalas. As the witnesses found the party of the appellants coming in such a manner, which was rather unusual, they enquired as to where the party was coming from and were told that they were returning from Barbigha after seeing tamasha of Mahabir Ji Puja. As this was immediately after the occurrence, the evidence has been considered of some value by the learned Sessions Judge. I may here state that the test identification was held almost within a week of the occurrence, that is on 13th April 1949, and, therefore, the test identification is of great value. The identification of the appellant Rama Gope rests upon the evidence of the complainant, P. W. 1, who identified him at the test identification parade. It is, however, curious that the complainant could not identify him before the committing Magistrate on 25th November 1949. In his evidence, the complainant explains it by saying:
“It is just possible that I have missed to identify some whom I had identified in Jail. In T. I. parade I used to catch the hand of the accused and the officer used to write his name.”
Again, when the question of identification arose before the Sessions Court, he correctly identified the appellant Kama Gope. No substantial criticism could be made against the manner in which the test identification parade was held. It is true that one other witness, P. W. 3, identified the appellant Rama Gope at the test identification parade, but he was unable to identify him before the committing Magistrate or in the Sessions Court. So far as the appellant Aso Mian is concerned, he was identified at the test identification parade by the complainant as also by the girl, Padmavati (P. W. 2). Though both failed to identify him before the committing Magistrate, they were again able to identify him in the Sessions Court. P. W. 3 also appears to have identified Aso Mian at the test identification parade but not before the committing Magistrate or before the Sessions Court.
4. The learned Sessions Judge, when dealing with the question of identification, observes as follows :
“Now it is to be noted that identification by Baburam Singh, Padmavati and Kesho Kahar is not consistent throughout this proceeding. For example, in T. I. parade Baburam Singh identified Parmeshwar, Sri Ram, Rama Gope, Ramdhani and Aso Mian, but in the committing Court he identified only Parmeshwar, Sriram and Ramadhani and before the Court he has identified Parmeshwar, Rama Gope, Baldeo Gope and Aso Mian. P. W. 2 Padmavati identified ASO Mian in T. I. parade but she failed to identify him before the committing Court and identified Parmeswar in his place but before the Sessions Court, she has identified Aso Mian and stated that it was Aso Mian who examined her person to see if she had ornaments on her person. This was stated by her on an enquiring question put to her. P. W. 3 Kesho Kahar identified in T. I. Parade Lutan, Rama Gope, Boldeo Gope, Matin Main and Jang Bahadur. Before the lower Court, however, he identified Parmeshwar, Ramdhani, Matin and Jang Bahadur. Before this Court, he his identified Ramdhani, Aso Mian, Jang Bahadur and Shama Mushar. In connection with the identification by these three witnesses, it is to be noted as already stated that they had opportunity to look at the faces of the dacoits for a very short time, which might be few
seconds only. In such circumstances, it is obviously difficult for them to remember the faces for such a long time. In such a case, the most effective and reliable identification is identification in T. I. parade which took place within seven days of the occurrence, when the faces of the dacoits who were seen were fresh in their minds.”
Thereafter, it appears from the discussion in his judgment that he seems to treat this evidence of identification as substantive evidence in the case. There is no doubt that the evidence of identification is of great corroborative value, but at the same time it must be remembered that it cannot be substantive evidence in the case. It can be utilised for the purpose of corroborating or contradicting the identification made in Court. But if a witness fails to identify an accused in Court, his identification at the test identification parade cannot be any evidence. I can understand the evidence of identification before the committing Magistrate being utilised as substantive evidence, but not the evidence at the test identification parade; but, of course, where it corroborates the evidence in Court, it must be regarded as of great value specially when the test identification parade was held without any unreasonable delay. I can also understand a statement made by the Magistrate himself, who held the test identification parade, being utilised as substantive evidence, provided the Magistrate stated that a particular witness did identify a particular accused and he could depose to this fact from his own knowledge as such. In this case, however, I do not find that the Magistrate, who held the test identification parade, did make any such statement. All that I find is that he observed only as follows :
“I prepared a chart of T. I. parade. This is the chart prepared by me. Marked EX. 3.”
He does not say which witness identified which accused. Therefore, merely proving the chart cannot be sufficient.
5. In this context I would refer to a Bench decision of this Court in Pesh Mohammad v. Emperor. A.I.R.. (29) 1942 pat. 319 : (43 Cr. L. J. 742) in which, it appears, some of the accused had been identified at a test identification parade by some of the prosecution witnesses. These prosecution witnesses were produced in Court, but they did not give any evidence on the point of identification. They were merely tendered for cross-examination which was declined. Nevertheless, the Courts below convicted the accused relying on the circumstance that they had been picked out at the test identification parade by the witnesses concerned. Their Lord, ships observed that such a procedure was “entirely wrong” and they stated as follows :
“These persons had not given any evidence against the petitioners, and the mere circumstance that they had been seen to pick them oat at a test identification and bad then made some statement to the sub-registrar who conducted it, was wholly irrelevant unless and until they gave evidence at the trial when, of course, the previous statement was relevant to corroborate that evidence. The result is that so far as three of the petitioners ………. there is no legal evidence whatever on which a conviction can be sustained.”
Whether the witnesses are tendered and are not made to identify in Court, or they are made to identify but fail to do so, does not make any difference in the eye of the law, because in either case there is “no legal evidence” before the Court and conviction cannot be sustained upon the evidence at the test identification which in that case becomes inadmissible.
6. I may also refer to another Bench decision of the Allahabad High Court in Nagina v. Emperor, A.I.R. (8) 1921 ALL. 215 : (27 Cr. L.J. 813). In that case, the accused was identified by two witnesses at the parade held in jail, but they failed to identify him at the Sessions Court. The learned Sessions Judge there observed, “I never attach the slightest importance to success or failure to identify in Court.” Their Lordships refuted this view and stated :
“If by this statement the learned Judge means that he is entitled to treat the evidence of identification in the jail as substantial independent evidence in the trial he is grossly mistaken, ……….
Identification proceedings held in the jail seem to us to amount to this, namely that certain persons ate brought to the jail or 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 a particular crime. These statements are of course not made on oath, and again, they are made in the course of extra-judicial proceedings. The law does not allow statements of this kind to be made available as evidence at the trial unless and until the persons who made those statements are called as witnesses. When these persons are called as witnesses then these previous statements become admissible, not as substantive evidence in the case, but merely as evidence to corroborate or contradict the statements made by these witnesses in Court (Sections 155 and 157, Evidence Act). If when a witness to identify is called in the Sessions Court and he states there that he can identify no one, there is obviously nothing to corroborate and so the evidence of the previous statement, express or implied, made in the course of the identification proceedings in the jail is not admissible.” (The underlines (here italicized) are mine).
7. To a similar effect is the decision of the Allahabad High Court in Bindeshri v. Emperor, A.I.R. (14) 1927 ALL. 163 : (27 Cr. L. J. 1358) which follows the above decision.
8. It is unnecessary to refer to other cases on the point, because, in my opinion, the principle appears to be quite clear, and, in any event, we are bound by the Division Bench decision of our own Court in the cage of Pesh Mohammad v. Emperor (A.I.R. (29) 1942 Pat. 319: 43 Cr. L. J. 742) referred to by me. My view on the point is also strengthened by a decision of the Judicial Committee in Brij Bhushan Singh v.
Emperor, A.I.R. (33) 1946 P. C. 38: 73 I. A. 1 : 21 Luck. 176 : (47 Cr. L. J. 336 P. C.). That was, of course, a case relating to statements made under Section 164, Criminal P. C. The Chief Court of Oudh used those statements as substantive evidence of the truth of the facts stated and their Lordships observed:
“This was an improper use of such statement. A statement under Section 164 can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 is true.”
The same principle applies to an identification by a witness at the test identification parade.
9. Counsel for the State, however, relies upon a decision of the Allahabad High Court in Abdul Jalil Khan v. Emperor, A.I.R. (17) 1930 ALL. 746: (32 Cr. L. J. 152). In that case a witness picked out an accused at an identification held in jail but failed to identify him before the committing Magistrate or before the Sessions Court. There, the learned Judges observed that an identification by a witness in jail, who failed to point him out in the trial Court, was not necessarily worthless, and the evidence of the witness that he did at the jail point out certain persons, though he could not remember them, read with the evidence of other persona who could say who were the persons that were identified, may be of some value. These observations, if I may say so respectfully, are rather loosely expressed and cannot afford any guiding principle. In the decision in question, there is no reference to the earlier decision of the same Court in Nagina v. Emperor, A.I.R. (8) 1921 ALL. 216: (27 Cr. L. J. 813), and in any case their Lordships did not rely upon the evidence of the witness in spite of his having picked out the accused at the test identification parade.
10. The other case relied upon is Bachchu v. Emperor, A.I.R. (17) 1930 oudh 455: (128 I. C. 739). There, their Lordships observed:
“The evidence which goes to prove that a person has identified another person as having taken part in a particular offence either in jail identification proceedings or elsewhere is admissible though the value of such evidence is weakened perceptibly as a general rule by failure to identify subsequently in Court.”
Of course, this observation suggests that the evidence of identification in jail is by itself some evidence in the case. In my opinion, however, for the reasons already given above, I cannot hold that such an evidence can be substantive evidence at all. That evidence is admissible only for the purpose of corroboration or contradiction.
10a. The position then is that the only legal evidence of identification of Rama Gope is that of P. W. 1, the complainant. The value of this
evidence is affected by the fact that the witness failed to identify him before the committing Magistrate. It is true that two other witnesses, P. Ws. 5 and 6, did notice him at dawn in a party of men carrying lathis and bhalas, but this affords very alight corroboration, it at all, of his presence in the dacotty; and in any case, even though there may be a possibility that he was one of the dacoits, I think it safe to give him the benefit of doubt.
11. So far as Aso Mian is concerned, there is legal evidence of identification against him of two witnesses, the complainant as well as his grand-daughter, Padmavati. Padmavati his definitely stated, while identifying him, that he was the man who examined her person to see if she bad ornaments on. I see no reason to disbelieve this evidence of identification against him. I am, of course, conscious of the fact that both these witnesses failed to identify him before the committing Magistrate. I confess that in this case I feel that there was something wrong in the manner in which the identification was conducted in the Court of the committing Magistrate. I have a shrewd suspicion in my mind that there may be some truth in the explanation given by the complainant of the manner in which the committing Magistrate examined the witnesses. I, therefore, do not attach much importance to this failure to identify the appellant before the committing Magistrate.
12. The result, therefore, is that the appeal of Rama Gope is allowed and be is given the benefit of doubt and should be released accordingly. The appeal of Aso Mian is, however, dismissed and the order of conviction and sentence passed against him is confirmed.