{"id":249714,"date":"1970-05-06T00:00:00","date_gmt":"1970-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/budhsen-vs-state-of-u-p-on-6-may-1970"},"modified":"2017-06-13T02:39:46","modified_gmt":"2017-06-12T21:09:46","slug":"budhsen-vs-state-of-u-p-on-6-may-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/budhsen-vs-state-of-u-p-on-6-may-1970","title":{"rendered":"Budhsen vs State Of U.P on 6 May, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Budhsen vs State Of U.P on 6 May, 1970<\/div>\n
Equivalent citations: 1970 AIR 1321, 1971 SCR (1) 564<\/div>\n
Author: I Dua<\/div>\n
Bench: Dua, I.D.<\/div>\n
           PETITIONER:\nBUDHSEN\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT:\n06\/05\/1970\n\nBENCH:\nDUA, I.D.\nBENCH:\nDUA, I.D.\nRAY, A.N.\n\nCITATION:\n 1970 AIR 1321\t\t  1971 SCR  (1) 564\n 1970 SCC  (3) 128\n CITATOR INFO :\n D\t    1972 SC2478\t (5)\n RF\t    1978 SC1770\t (25,26)\n\n\nACT:\nEvidence  Act<\/a> (1 of 1872),s.9-Identification  parades-Manner\nof  holding-Weight  to be  attached-Constitution  of  India,\n1950, Art. 136-<\/a>Evidentiary value attached to  identification\nparades-Erroneous Interference by Supreme Court.\n\n\n\nHEADNOTE:\nThe  two appellants B and N, along with two others who\twere\nacquitted  by the High Court, were charged with the  offence\nof  murder by shooting the deceased, committed on  September\n12, 1967.  The evidence against them mainly consisted of six\nwitnesses who had identified them at test parades.  The High\nCourt rejected the evidence of three of them and relied upon\nthe evidence of the remaining three.  Two of them claimed to\nbe present at the time of the occurrence and the third\tcame\non the scene after hearing pistol shots and the alarm raised\nby  others.   The  appellants  were  strangers\tto  all\t the\nwitnesses.\nOne of the eye witnesses (P.W. 1) gave the first information\nto  the\t police,  but  there  was  no  description  of\t the\nassailants in it.  The P.S.J. recording the report also\t did\nnot question the informant for the purpose of securing\tmore\ninformation about the description of the assailants in order\nto  be\table to take measures to discover and  arrest  them.\nP.W.  1\t identified  the appellants  at\t two  identification\nparades\t conducted  by\ta  Magistrate.\t The  identification\nparade\tin respect of N was held on October 21, 1967 and  in\nrespect\t of B on October 28, 1967.  In the form relating  to\nthe identification parade, there is a footnote stating\tthat\nit is very useful to note whether the witness knew the\tname\nof the person he had come to identify or only described\t him\nand that the witness should not be asked in a general way to\nidentify  whomsoever he knew.  The Magistrate gave  evidence\nthat  he  had asked witnesses who had come to  identify\t the\naccused (named) as to what he had seen the accused doing and\nrecorded whatever the witness told him.\t Whatever the  first\nwitness\t bad told him was recorded word for word  and  since\nthe other witness bad repeated the same thing he noted\tdown\nagainst their names the words as above.\t The  identification\nmemorandum  as\tregards the other accused, prepared  by\t the\nMagistrate  at\tthe time of his identification\tparade,\t was\nsimilar.  There was also unexplained error as to the date on\nwhich  appellant  B  was admitted into the  jail.   In\tboth\nidentification\t memos\tthere  were  no-  remarks   by\t the\nMagistrate  in\trespect\t of  the steps\ttaken  by  the\tjail\nauthorities  to ensure proper conduct of  proceedings.\t The\neye witnesses also did not specify in court the accused\t who\nhad actually fired the pistol.\nThe second eye witness admitted in cross-examination that he\nhad  gone to the jail for identification on three  occasions\nand that on two occasions be had identified the accused\t but\non  the\t third\toccasion be did not identify  any.   He\t was\nunable\tto  state as to which accused he identified  in\t the\nfirst and which in the second parade.\nThe third witness deposed that he bad identified the accused\nwho had a jhola in his hand (he was alleged by) by the three\nwitnesses to have\n565\ntaken a pistol from the Jhola) at one identification  parade\nand the other accused at the second identification parade.\nAppellant  'N' had stated during the  identification  parade\nthat  he had been shown to the witnesses and had  also\tbeen\nphotographed.\nOn the question whether the conviction could be sustained on\nthis evidence :-\nHELD  :\t Facts which establish the identity  of\t an  accused\nperson\tare  relevant under s. 9<\/a> of the Evidence  Act.\t The\nsubstantive  evidence of identification is the statement  of\nthe witness in court.  But the evidence of identification at\nthe  trial for the first time is from its very nature  weak.\nA prior test identification, therefore serves to corroborate\nthe  evidence  in  court.   The\t purpose  of  identification\nparades which belong to the investigation stage is to enable\nthe witnesses to identify persons concerned in the  offence,\nwho are not previously known to them, and thereby to satisfy\nthe  investigating officers of their bona fides by  pointing\nout  the persons they recognise as having taken part in\t the\ncrime.\t  These\t  parades,  thus  furnish   evidence   which\ncorroborates  the testimony of the identifying witnesses  in\ncourt.\t  These\t parades  do  not   constitute\t substantive\nevidence.   Keeping  in view the purpose  of  identification\nparades,   the\t precautions  to  eliminate   suspicion\t  of\nunfairness and to reduce chances of testimonial error.\tThey\nmust take intelligent interest in the proceedings bearing in\nmind  two considerations : (i) that the life and liberty  of\nan  accused may depend on their vigilance and  caution,\t and\n(ii)  that  justice should be done  in\tthe  identification.\nGenerally,  the\t Magistrates  must  make  a  note  of  every\nobjection raised by an accused at the time of identification\nand  the  steps\t taken by them to  ensure  fairness  to\t the\naccused,  so that the court which is to judge the  value  of\nthe identification evidence may take them into consideration\nin the appreciation of that evidence.  The persons  required\nto  identify  an accused should have had no  opportunity  of\nseeing\thim  after  the\t commission  of\t crime\tand   before\nidentification\tand  secondly  that  they  should  make\t  no\nmistakes   or  the  mistakes  made  are\t  negligible.\t The\nidentification\tto be of value should also be  held  without\nmuch delay.  The number of persons mixed up with the accused\nshould\tbe  reasonably large and their bearing\tand  general\nappearance not glaringly disincline. [570 H; 571 A-H; 572 A-\nC]\nIn  the present case the evidence shows that the  Magistrate\npaid scant attention to the direction in the  identification\nmemos.\tThe memos do not show that the parades were held  by\nthe  Magistrate\t with  the degree  of  vigilance,  care\t and\nanxiety\t their importance demanded, and they were filled  up\nin  a very casual manner.  They could only have\t a  somewhat\nfleeting  glimpse  of the assailants.  The  prosecution\t has\nalso  not explained why the second eve witness had to go  to\nthe  jail  for\tidentification a third time.   The  two\t eve\nwitnesses did not state in evidence what particular part the\ntwo appellants played in the occurrence.  The third  witness\nwho  come on the scene on hearing the alarm could only\thave\nhad a still more fleeting glimpse. [572 F-G; 573 D-E; 577 C-\nD]\nThe  statements of the three witnesses were  also  otherwise\nunimpressive  and  coupled with the fact that  there  was  a\npossibility of their having seen at least one of the accused\n(appellant   B)\t outside  jail\tgates  a  week\tbefore\t the\nidentification\tparades were held, the\ttest  identification\nparades\t could\tnot  be\t considered  to\t provide  safe\t and\ntrustworthy  evidence  on which the  appellants'  conviction\ncould be sustained. [577 E]\n(2)  The  entire  case\tdepended on  identification  of\t the\nappellants and the identification was founded solely on test\nidentification parades.\t The\n5 66\nHigh  Court  did not correctly\tappreciate  the\t evidentiary\nvalue  of  the\tparades\t and  proceeded\t on  the   erroneous\nassumption that it is substantive, evidence and that on\t the\nbasis  of  that\t evidence  alone  the  conviction  could  be\nsustained.  The High Court also ignored. important  evidence\non  the\t record\t in  regard to\tthe  manner  in\t which\ttest\nidentification\t parades   were\t held  and   the   connected\ncircumstances suggesting that they were held more or less in\na  mechanical  way without the necessary  precautions  being\ntaken to eliminate unfairness.\tThis is an erroneous way  of\ndealing\t with test identification parades and since  it\t has\ncaused\tfailure\t of  justice, this  Court  is  justified  in\ninterfering under Art. 136 [577<\/a> H; 580 C-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.\t 199
\nand 200 of 1969.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nApril  28,  1969  of the Allahabad High\t Court\tin  Criminal
\nAppeal No. 2623 of 1968 and Referred No. 160 of 1968.
\nK.   Baldev  Mehta, for the appellant (in Cr.A. No.  199  of
\n1969).\n<\/p>\n
G. L. Sanghi, P. N. Tiwari, J. B. Dadachanji,0.\t     C.
\nMathur and Ravinder Narain, for the appellant (in Cr. A.No.
\n200 of 1969).\n<\/p>\n
O. P.  Rana, for the respondent (in both the appeals).
\nThe Judgment of the Court was delivered by
\nDua,  J.-These two appeals by special leave arise out  of  a
\njoint  trial  of  the present  appellants  and\tJagdish\t and
\nSugriv.\t  All the four accused were convicted by  the  trial
\ncourt; the present appellants were sentenced to death  under
\nS. 302 read with s. 34<\/a> I.P.C. and Jagdish and Sugriv to life
\nimprisonment  under  S. 302<\/a> read with s.  109<\/a>,\tI.P.C<\/a>.\tThey
\nchallenged  their  conviction  by separate  appeals  to\t the
\nAllahabad  High\t Court.\t By means of a common  judgment\t the
\nHigh  Court dismissed the appeal of the\t present  appellants
\n(Crl.\tA. No. 2623 of 1968) and allowed that of  their\t co-
\naccused Jagdish and Sugriv (Crl.  A. No. 2648 of 1968).\t The
\nsentence of death imposed on the present appellants under s.
\n302<\/a>, I.P.C<\/a>. for the murder of Lala Hazarilal was confirmed.
\nAccording  to  the  prosecution\t story\tJagdish\t and  Sugriv
\nrelated\t to  each  other  as  cousins  belonged\t to  village
\nBidrika.   They used to harass the poor inhabitants of\tthat
\nvillage\t whereas  deceased Hazarilal used to  espouse  their
\ncause.\t As a result, there was not much love  lost  between
\nJagdish\t and  Sugriv on the one side and  Hazarilal  on\t the
\nother.\tSome years ago Jagdish, along with some others,\t was
\nprosecuted  for forging accounts of a  Co-operative  Society
\nand  was found guilty the Assistant Sessions  Judge,  though
\nreleased on probation under the U.P. First Offenders’ Pro-\n<\/p>\n
567<\/span><\/p>\n
bation\tAct.  Bhoodev, at whose instance,  that\t prosecution
\nwas  initiated,\t presented a revision petition in  the\tHigh
\nCourt  ‘against\t the order of the Assistant  Sessions  Judge
\nchallenging  the  benefit given to Jagdish  under  the\tU.P.
\nFirst Offenders’ Probation Act<\/a>.\t The High Court allowed\t the
\nrevision  on  July  26,\t 1967  and  imposed  on\t Jagdish   a
\nsubstantive sentence of rigorous imprisonment for two years.
\nBhoodev had the support of Hazarilal in the trial court\t and
\nthe revision to the High Court was also preferred by him  at
\nthe instance of Hazarilal.  This further enraged Jagdish and
\nSugriv\tand Jagdish is stated to have  threatened  Hazarilal
\nwith death about ten days before his ‘murder.  This happened
\nbefore Jagdish was taken into custody pursuant to the  order
\nof  the\t High  Court  imposing\ton  him\t the  sentence\t of,
\nimprisonment.\tThis was alleged to be the immediate  motive
\nfor Hazarilal’s murder.\t In 1962 also Jagdish and Sugriv had
\nalso  been prosecuted by Hazarilal under s. 452<\/a>\/326<\/a>  and  s.
\n147<\/a>,  I.P.C<\/a>.  but  they were acquitted.\t  Ever\tsince  then,
\naccording  to the prosecution, Jagdish and Sugriv  had\tbeen
\nharboring  ill\tfeelings towards Hazarilal and\tplanning  to
\nhave him murdered through hired assassins.  On September 11,
\n1967 Ghaziuddin (P.W. 2) is stated to have gone to the house
\nof Jagdish and saw Jagdish and Sugriv in the company of four
\nunknown persons and over-heard Jagdish saying that the\tsaid
\nfour  persons  had left the job unfinished though  they\t had
\nvisited the village often and telling them that the  balance
\nwould  be paid to them only after the job was  accomplished.
\nThe  following\tday at about 10 a.m. when it  was  drizzling
\nHazarilal  was sitting in his Gher also described as  Nohara
\non  a cot and his brother Inderjit (P.W. 1) and\t Kanwar\t Sen
\n(P.W.  3) were squatting on a heap of fodder  nearby.\tThey
\nwere  all  sitting in the Duari because that  was  the\tonly
\nplace  ;which  provided protection against  rain.   Suddenly
\nfour  unknown persons entered the Nohra through\t the  Duari.
\nTwo  of them caught hold of Inderjit and Kanwar Sen, one  of
\nthem  sat on the cot of Hazarilal and pressed his  legs\t and
\nthe  fourth who was carrying a red jhola in his\t hand,\ttook
\nout  a\tpistol from the jhola and fired\t at  Hazarilal\tfrom
\npoint blank range.  Hazarilal fell down.  The fourth man re-
\nloaded his pistol and fired another shot which hit Hazarilal
\non  the\t chest killing him  instantaneously.   Inderjit\t and
\nKanwar\tSen  raised alarm.  On hearing their alarm  and\t the
\nsound of pistol fire, Ram Singh, Imam Khan and Ranchor (P.W.\n<\/p>\n
4)  came  to  the  scene of  occurrence\t and  saw  the\tfour
\nassailants  running away from the Nohra.  According  to\t the
\nprosecution, the four unknown assailants murdered  Hazarilal
\nat the instigation of Jagdish and Sugriv.  First information
\nreport\twas  lodged by Inderjit at  police  station  Iodged,
\nabout  ten miles away from the place of occurrence  at\t2.35
\np.m. the same day (September 12. 1967).\t On his return\tfrom
\nthe  police  station Inderjit met Ghaziuddin (P.W.  2)\tfrom
\nwhom  he learnt, what he (Ghaziuddin) had seen and  heard  a
\nday previous,
\n568<\/span>
\nat  the house of Jagdish.  S. K. Yadav,\t Sub-Inspector\twith
\nwhom  the  F.I.R.  was\tlodged\treached\t the  scene  of\t the
\noccurrence  at\t6.15  p.m.  the\t same  day.   He  found\t one
\ndischarged  cartridge  and  two wads at\t the  place  of\t the
\noccurrence.   He recorded the statements of some  witnesses,
\nincluding   Ghaziuddin\ton  the\t following   day.    Further
\ninvestigation was conducted by Sub-Inspector Harcharan Singh
\n(P.   W.  21).\t Jagdish and Sugriv on\twhom  suspicion\t had
\nfallen were not traceable with the result that warrants\t for
\ntheir\tarrest\twere  made  over  to  Sub-Inspector   Yadav.
\nProceedings  under  ss. 87<\/a> and 88<\/a>, Cr.\t P.C.  were  started
\nagainst them but soon thereafter they surrendered themselves
\nin  court on September 29, 1967.  During  investigation\t the
\nInvestigating  Officer\tlearnt about the complicity  of\t the
\npresent\t appellants  and Naubat was arrested on\t October  9,
\n1967.\tBudhsen,  however, was arrested in  connection\twith
\nsome  other  case  on  October 14,  1967  by  Sasni  police.
\nMagistrate Pratap Singh (P.W. 20) held identification parade
\nof Naubat on October 21, 1967 and of Budhsen on October\t 28,
\n1967.\n<\/p>\n
The  trial  court came to the conclusion  that\tJagdish\t and
\nSugriv\thad abetted the murder of Hazarilal  and  appellants
\nNaubat\tand Budhsen, had committed the murder.\t Naubat\t and
\nBudhsen were, therefore, Sentenced to death and Jagdish\t and
\nSugriv to life imprisonment.\n<\/p>\n
On  appeal  the High Court re-summoned\tLakhan\tSingh,\tHead
\nConstable of Thana Sasni, District Aligarh, who had  already
\nappeared at the trial as P.W. 14 and recorded his additional
\nstatement.   Lakhan  Singh had taken Budhsen in\t custody  at
\npolice\tstation Sasni.\tHis statement as P.W. 14  left\tsome
\ndoubts in the minds of the Judges of the High Court to clear
\nwhich  it was considered necessary to examine him  again  in
\nthe  High Court.  After considering the entire evidence\t the
\nHigh  Court acquitted Jagdish and Sugriv but maintained\t the
\nconviction  and sentence of Budhsen and Naubat,\t appellants.
\nThe statement made by Ghaziuddin, (P.W. 2) was not  believed
\nby the High Court and his version was described as unnatural
\nand  improbable.   That court also ignored the\tevidence  of
\nChandrapal  (P.W.  5),\tGirendra  Pal  Singh  (P.W.  7)\t and
\nLakhanpal  (P.W.  8)  on the ground of\ttheir  being  either
\nirrelevant   or\t unreliable.   The  existence  of   inimical
\nrelations  between  Jagdish  and  Sugriv  on  one  side\t and
\nHazarilal   on\tthe  other  was\t not  considered  to  be   a
\nsufficiently strong circumstance against Jagdish and  Sugriv
\nso as to hold them guilty of instigating Hazarilal’s murder.
\nAs against Naubat and Budhsen, appellants in the opinion  of
\nthe  High  Court primary evidence consists  of\ttheir  iden-
\ntification  by some of the witnesses.  The court  took\tinto
\nconsideration  the identification parade for Naubat held  by
\nMagistrate  pratap  Singh on October 21, 1967 and  that\t for
\nBudhsen\t on  October  28,  1967.   It  was  principally\t the
\nevidence of identification on which reliance was placed\t for
\nholding the present appel-\n<\/p>\n
569<\/span><\/p>\n
lants  to be responsible for the murder of  Hazarilal.\t The
\nthree\twitnesses  on  whose  evidence\tin  regard  to\t the
\nidentification\tthe High Court relied are  Inderjit,  Kanwar
\nSen  and Ranchor.  The additional evidence recorded  by\t the
\nHigh Court consisted of the statement of Lakhan Singh.\tThat
\ncourt  also  inspected the original entries in\tthe  general
\ndiary of the police as well as their carbon copies.   Lakhan
\nSingh  stated  in the additional evidence that he  had\tmade
\nentry at sl. no. 9 of the general diary of the original\t re-
\nport  under  s.\t 307<\/a>,  I.P.C<\/a>. and s. 25<\/a>\t Arms  Act  made  by
\nPannalal  against  Budhsen (Ex.\t Ka. 10).   He\tdenied\tthat
\nblank space had been left in the general diary for  entering
\nthe particulars of the pistol (tamancha) and cartridges etc.
\nIn  regard  to this denial in Lakhan Singh’s  statement\t the
\nHigh  Court observed that the weapon of offence\t with  which
\nthe  offence  under  s. 307<\/a>, I.P.C<\/a>. was said  to  have\tbeen
\ncommitted  by Budhsen was probably a later  addition  though
\nthe  court  did\t not consider it proper\t to  record  a\tfirm
\nfinding to that effect.\t A major part of the judgment of the
\nHigh  Court  is confined to the evidence in  regard  to\t the
\nidentification\tparade\tand  to\t the  question\twhether\t the
\nidentifying  witnesses\thad  an opportunity  of\t seeing\t the
\nappellants before their identification.\t Holding that  there
\nwas no opportunity for those witnesses to see the appellants
\nbefore\ttheir  identifications\tthe  court  confirmed  their
\nconviction and sentence as already observed.
\nIn this Court Shri Sangi and Shri K. Baldev Mehta  addressed
\nus  in\tsupport of the appeals of their\t respective  clients
\nNaubat\tand  Budhsen.\tAccording to  their  submission\t the
\nevidence  in regard to the identification parades is  of  an
\nextremely   weak  character  and  is   wholly\tuninspiring.
\nAccording  to them it does not bring home to the  appellants
\nthe offence of murder beyond reasonable doubt.\tIt was\talso
\nurged  that  according\tto  the\t prosecution  evidence\tfour
\nunidentified, persons having participated in the unfortunate
\nmurder\tof Hazarilal there is no reliable  evidence  showing
\nthat  any one of the present appellants actually  fired\t the
\nfatal shot.  Evidence regarding any specific part played  by
\nthe  appellants, they contended, is also not forthcoming  on
\nthe  record.  On this ground it was emphasised that  in\t any
\nevent the extreme penalty of death is uncalled for.
\nSince  according  to  the High Court  the  primary  evidence
\nagainst\t the appellants is that of their  identification  by
\nthe  witnesses\tthe  crucial point seems to  us\t to  be\t the
\nadmissibility  and’  value  of the  evidence  regarding\t the
\nidentification\tof the appellants.  We accordingly  consider
\nit  necessary, on the facts and circumstances of this  case,
\nto  examine  that evidence.  The High  Court,\t as  already
\nobserved by us, has ignored the evidence of Chandrapal (P.W.\n<\/p>\n
5)  Girendrapal\t (P.W.\t7) and Lekhraj (P.W.  8)  as  either
\nirrelevant   or\t unreliable.   The  identification  of\t the
\nappellants is.\n<\/p>\n
57 0
\nthus confined to the testimony of Inderjit (P.W. 1),  Kanwar
\nSen  (P.W.  3) and Ranchor (P.W. 4).  Turning first  to\t the
\nevidence of Inderjit it is important to bear in mind that he
\nclaims\tto be present at the time of the alleged  occurrence
\nalong with Kanwar Sen. He also lodged the first\t information
\nreport\tat 2.35 p.m. on the day of the occurrence.   In\t the
\nreport,\t this  is  what\t P.W. I\t stated\t in  regard  to\t the
\nidentification of the alleged assailants and the  respective
\nparts played by them in the commission of the offence:\n<\/p>\n
\t      “Today at about 10 O’clock in the day I and my
\n\t      brother  Hazari  Lal and his  partner  (Sajhi)
\n\t      Kumar  Sen son of Chidda Jatav of\t my  village
\n\t      were present at the Gher, and it was raining a
\n\t      little, that four persons dame to the Gher and
\n\t      out  of them, one man sat on the cot  near  my
\n\t      brother and two persons caught hold of me\t and
\n\t      Kumar Sen and the fourth man having taken\t out
\n\t      the Katta (pistol) from inside the Jhola which
\n\t      he was carrying in his hand, fired shot at  my
\n\t      brother  Hazari  Lal.  My brother\t jumped\t and
\n\t      fell  down the cot, and he fired another\tshot
\n\t      at  my brother, who had fallen down which\t hit
\n\t      Hazarilal at his chest as a result whereof  he
\n\t      died.   We both raised alarm.  On hearing\t our
\n\t      alarm Imam Khan son of Lal Khan, Ranchor Jatav
\n\t      and  Ram Singh tailor of my village also\tcame
\n\t      up  and then the accused persons\thaving\tcome
\n\t      out  and\tran away.  These persons  have\talso
\n\t      seen  the four accused persons,  while  coming
\n\t      out of the gher and running away.\t Jagdish and
\n\t      Sugriv  having  called, these  four  Badmashes
\n\t      have  got committed the murder of my  brother.
\n\t      We all can recognise these Badmashes on  being
\n\t      confronted.”\n<\/p><\/blockquote>\n
This description of the assailants could hardly provide\t the
\ninvestigating authorities with any firm starting point\tfrom
\nwhich they could proceed to take the necessary measures\t for
\nthe  discovery\tand  arrest  of\t the  alleged  offenders  as
\nrequired  by  S. 157<\/a>, Cr.  P.C. It is unfortunate  that\t the
\nSub-lnspector  S.  K. Yadav, (P.W. 19) did not care  to\t get
\nmore  information  about  the  description  of\tthe  alleged
\nassailants by questioning the informant.  Of course, Jagdish
\nand  Sugriv were mentioned in the F.I.R. as the persons\t who
\nhad employed the four assailants for murdering the  deceased
\nbut having been acquitted they do not concern us.
\nNow, facts which establish the identity of an accused person
\nare  relevant under S. 9<\/a> of the Indian Evidence Act.   As  a
\ngeneral\t rule,\tthe substantive evidence of a witness  is  a
\nstatement   made   in\tcourt.\t  The\tevidence   of\tmere
\nidentification\tof the accused person at the trial  for\t the
\nfirst  time  is from its very nature inherently\t of  a\tweak
\ncharacter.  The evidence in order to carry conviction
\n571<\/span>
\nshould\t ordinarily  clarify  as  to  how  and\tunder\twhat
\ncircumstances  he  came to pick out the\t particular  accused
\nperson and the details of the part which the accused  played
\nin the crime in question with reasonable particularity.\t The
\npurpose of a prior test identification, therefore, seems  to
\nbe  to\ttest  and strengthen  the  trustworthiness  of\tthat
\nevidence.   It\tis accordingly. considered a  safe  rule  of
\nprudence  to generally look for corroboration of  the  sworn
\ntestimony  of witnesses in court as to the identity  of\t the
\naccused\t who are strangers to them, in the form\t of  earlier
\nidentification\t proceeding.\tThere\tmay,   however,\t  be
\nexceptions  to\tthis general rule, when,  for  example,\t the
\ncourt  is  impressed  by  a  particular\t witness,  on  whose
\ntestimony  it  can safely rely, without such or\t other\tcor-
\nroboration.   The  identification  parades  belong  to\t the
\ninvestigation  stage.\tThey are generally held\t during\t the
\ncourse of investigation with the primary object of  enabling
\nthe witnesses to identify per’sons concerned in the offence,
\nwho  were  not\tpreviously known to them.   This  serves  to
\nsatisfy the investigating officers of the bona fides of\t the
\nprosecution  witnesses\tand  also  to  furnish\tevidence  to
\ncorroborate   their  testimony\tin  court.    Identification
\nproceedings  in\t their legal effect amount simply  to  this:
\nthat certain persons are brought to jail or some other place
\nand  make statements either express or implied that  certain
\nindividuals  whom  they\t point out  are\t persons  whom\tthey
\nrecognise  as having been concerned in the crime.   They  do
\nnot  constitute\t substantive evidence.\t These\tparades\t are
\nessentially  governed  by s. 162<\/a>, Cr.  P.C. It is  for\tthis
\nreason that the identification parades in this case seem  to
\nhave  been  held  under the  supervision  of  a\t Magistrate.
\nKeeping\t in view the purpose of identification\tparades\t the
\nMagistrates  holding them are expected to take all  possible
\nprecautions to eliminate any suspicion of unfairness and  to
\nreduce\t the  chance  of  testimonial  error.\tThey   must,
\ntherefore,  take  intelligent interest in  the\tproceedings,
\nbearing\t in mind two considerations : (i) that the life\t and
\nliberty\t of  an accused may depend on  their  vigilance\t and
\ncaution\t and  (ii)  that  justice  should  be  done  an\t the
\nidentification\t Those\tproceedings  should  not   make\t  it
\nimpossible  for the identifiers who, after all, have,  as  a
\nrule, only fleeting glimpses of the person they are supposed
\nto identify.  Generally speaking, the Magistrate must make a
\nnote of every objection raised by an accused at the time  of
\nidentification\tand  the  steps\t taken\tby  them  to  ensure
\nfairness to the accused, so that the court which is to judge
\nthe value of the identification evidence may take them\tinto
\nconsideration  in  the appreciation of that  evidence.\t The
\npower to identify, it may be kept in view, varies  according
\nto  the\t power\tof  observation and  memory  of\t the  person
\nidentifying  and  each case depends on its  own\t facts,\t but
\nthere are two factors which seems to be of basic  importance
\nin  the evaluation of identification.  The persons  required
\nto  identify an accused should have bad no,  opportunity  of
\nseeing him after the commission of the crime and
\n572<\/span>
\nbefore identification and secondly that no mistakes are made
\nby   them  or  the  mistakes  made  are\t  negligible.\t The
\nidentification\tto be of value should also be  held  without
\nmuch delay.  The number of persons mixed up with the accused
\nshould\tbe  reasonably large and their bearing\tand  general
\nappearance  not\t glaringly dissimilar.\tThe evidence  as  to
\nidentification\tdeserves,  therefore, to be subjected  to  a
\nclose and careful scrutiny by the Court.  Shri Pratap Singh,
\nMagistrate,  who conducted the identification, has  appeared
\nat the trial as P.W. 20.  The identification memo in respect
\nof  Naubat, appellant, is Ex.  Ka 20 dated October 21,\t1967
\nand  in respect of Budhsen is Ex.  Ka 21, dated October\t 28,
\n1967.\n<\/p>\n
In Ex.\tKa 20 we find a note that Naubat had stated that  he
\nhad   been  shown  to  the  witnesses  and  had\t also\tbeen
\nphotographed.  Column 7 of the memo requires to be  inserted
\ntherein\t the name or description of the person\tthe  witness
\ncame to identify and this is to be recorded in the words  of
\nthe witness.  In Ex.  Ka 20, Inderjit said
\n“I  saw the accused while committing the murder.  I did\t not
\nknow him before.”\n<\/p>\n
As  against  the  other five witnesses\tnamely\tKanwar\tSen,
\nGhaziuddin, Imam Baksh, Chandrapal and Ranchor we only\tfind
\nthe word “Do” In this connection the note at the foot of the
\nprinted form containing the following direction seems to  us
\nto be, of some importance:\n<\/p>\n
\t      “N.B.-It\tis very useful to note\twhether\t the
\n\t      witness  knew  the name of the person  he\t had
\n\t      come  to identify or he only described him  in
\n\t      some  such way as the man who was standing  at
\n\t      the  door\t at the time of\t the  dacoity.\t The
\n\t      witness  is not to be asked in a general\tway,
\n\t      identify whomsoever you know.”\n<\/p><\/blockquote>\n
It  is obvious that scant attention was paid to\t the  letter
\nand  spirit of this note.  Shri Pratap Singh (P.W  20)\twhen
\ncross-examined on behalf of Naubat said:”\n<\/p>\n
\t      “I  asked\t the  witnesses\t who  had  come\t  to
\n\t      identify\taccused Naubat as to what  they\t had
\n\t      seen Naubat doing.  Whatever they told me\t was
\n\t      recorded\tby  ‘me\t in  col.  7  of  the  memo.
\n\t      Whatever\tthe first witness Inderjit told\t was
\n\t      recorded\tword  for word by me and  since\t the
\n\t      other  witnesses\trepeated the  same  thing  I
\n\t      noted down the word ‘as above’ (uparyukt)”.
\n\t      The  remarks  of\tthe  Magistrate\t were\talso
\n\t      required against the enquiry on point no. 2 at
\n\t      the  bottom of the first sheet of Ex.   Ka  20
\n\t      which  relates to the step taken by  the\tjail
\n\t      authorities to ensure the
\n\t      5 7 3
\n\t      proper conduct of the proceedings.  We do\t not
\n\t      find  any\t remarks by the Magistrate  on\tthis
\n\t      point  in\t Ex.   Ka 20.\tHis  remarks  ‘would
\n\t      certainly have provided helpful information on
\n\t      an important point without which the court  is
\n\t      left only to guess.\n<\/p><\/blockquote>\n
\t      In  the  identification  memo  in\t respect  of
\n\t      Budhsen (Ex.  Ka 21) in column 7, against\t the
\n\t      name   of\t Inderjit,  witness,  we  find\t the
\n\t      following entry:\n<\/p><\/blockquote>\n
\t      “I  came to identify the person who  committed
\n\t\t\t    the murder of my brother”.\n<\/p><\/blockquote>\n
\t      Against  the  name of Imam Baksh we  find\t the
\n\t      following entry:\n<\/p><\/blockquote>\n
\t      “Came to identify the person who committed the
\n\t      murder”.\n<\/p><\/blockquote>\n
\t      Against  the  names  of  the  remaining\tfour
\n\t      witnesses,  who were the same as mentioned  in
\n\t      Ex.  Ka 20, we find the word “Do”.  This means
\n\t      that their answer is the same as that of\tImam
\n\t      Baksh.  In this form also there are no remarks
\n\t      by  the  Magistrate in respect  of  the  steps
\n\t      taken by the jail authorities to ensure proper
\n\t      conduct  of  proceedings.\t The  memos  of\t the
\n\t      identification  parades do not show  that\t the
\n\t      parades  were held by the Magistrate with\t the
\n\t      degree  of vigilance, care and  anxiety  their
\n\t      importance  demanded.   The casual  manner  of
\n\t      filling  the identification memos\t is  further
\n\t      apparent\t from\tthe   fact   that   Budhsen,
\n\t      appellant’s  admission into the jail is  shown
\n\t      therein as October 15, 1967 instead of October
\n\t      14,  1967.  This mistake was admitted by\tP.W.
\n\t      20  in cross-examination without offering\t any
\n\t      explanation for the mistake.\n<\/p><\/blockquote>\n
\t      We may here appropriately point out that\tShri
\n\t      Pratap  Singh (P.W. 20) was called upon  as  a
\n\t      Magistrate only to conduct the  identification
\n\t      proceedings  and\tit was beyond  his  duty  to
\n\t      interrogate the witnesses for eliciting  other
\n\t      facts or to require them to make any statement
\n\t      beyond mere identification.\n<\/p><\/blockquote>\n
\t      This   takes  us\tto  the\t evidence   of\t the
\n\t      identifying  witnesses.\tImam Baksh  was\t not
\n\t      produced\tat the trial.  The  other  witnesses
\n\t      except three, were not relied upon by the High
\n\t      Court.  We need, therefore, confine  ourselves
\n\t      only to those three witnesses.\n<\/p><\/blockquote>\n
\t      Inder  it\t (P.W.\t1) brother  of\tHazari\tLal,
\n\t      deceased,\t  deposed  at  the  trial  that\t  on
\n\t      September\t 12, 1967 at 10 a.m. he, Kanwar\t Sen
\n\t      and Razarilal were sitting in the Gher,  about
\n\t      50  paces\t towards  the east  of\tthe  village
\n\t      abadi.   Hazarilal  was sitting on a  cot\t and
\n\t      Kanwar  Sen and the witness were sitting on  a
\n\t      heap  of- fodder nearby in the  Duari  because
\n\t      that  was\t the only  place  affording  shelter
\n\t      against rain.  The cot on which Hazarilal\t was
\n\t      sitting was
\n\t      574<\/span>
\n\t      in the middle of the Duari.  What the  witness
\n\t      next  stated  now\t be reproduced\tin  his\t own
\n\t      words:<\/p><\/blockquote>\n
\t      “Four  unknown persons entered the Duari\tfrom
\n\t      outside.\tOne of them sat down by the headside
\n\t\t\t    of my brother and another proceeded to
\nwards the
\n\t      charpoy of my brother.  Of the remaining\ttwo,
\n\t      one caught hold of me, while the other  caught
\n\t      hold   of\t Kunwar\t Sen.  Kunwar  Sen   and   I
\n\t      immediately  raised an alarm The\tperson,\t who
\n\t      proceeded\t towards the charpoy of my  brother,
\n\t      took  out a country made pistol from  the\t bag
\n\t      and  shot\t at my brother.\t It was he  who\t was
\n\t      holding the bag in his hand.  The shot hit  my
\n\t      brother  and  he jumped from the\tcharpoy\t and
\n\t      fell down.  The person who was sitting by\t the
\n\t      headside\tof my brother pressed  my  brother’s
\n\t      legs  with his legs.  The person,\t armed\twith
\n\t      the  pistol, again loaded the pistol and\tshot
\n\t      at  my  brother’s\t chest.\t  My  brother\tdied
\n\t      immediately.”\n<\/p>\n
\t      On  hearing my shouts and the sound of  pistol
\n\t      firing  Ram  Singh,  Imam\t Khan  and   Ranchor
\n\t      arrived.\t The Badmashes escaped\tthrough\t the
\n\t      Duari and ran away towards the east.”\n<\/p>\n
It  is\tnoteworthy that this witness  has  not\tspecifically
\nstated\tthat Naubat, appellant, had fired the  pistol  shot.
\nIt  is\tonly by reference to the person holding a  bag\tfrom
\nwhich  the  pistol  was taker out that it is  sought  to  be
\nimplied\t that Naubat had fired the shot In court Naubat\t was
\nnot specifically identified as the person firing the shot or
\neven  as a person holding the bag the witness has  also\t not
\nstated\tas  to what part the other appellant played  in\t the
\noccur rence.  A little lower down the witness proceeds :\n<\/p>\n
\t      “I  never saw before the four persons who\t had
\n\t      come  to\tmy  brother’s gher on  the.  day  of
\n\t      occurrence.  I bad come to the District  Jail,
\n\t      Aligarh to identify them. (The witness, having
\n\t      touched\tthe  accused  Naubat  and   Budhsen,
\n\t      stated) I identified them in jail.  I saw them
\n\t      for  the first time on the day  of  occurrence
\n\t      and thereafter I saw them in jail at the\ttime
\n\t      of   identification.   I\tdid  not  see\tthem
\n\t      anywhere in. the intervening period.\n<\/p><\/blockquote>\n
The  question  naturally  arises if on\tthis  state  of\t his
\ntestimony the identification made by Inderjit can be held to
\nbe  a reliable piece of evidence on which the conviction  of
\nthe   appellants  can  be  sustained.\tIn  evaluating\t his
\ntestimony   we\tmay  appropriately  consider  bow  far\t his
\ndescription of the actual occurrence inspires confidence  We
\nare  asked  to believe that one of the four  assailants\t sat
\ndown near the head of Hazarilal and pressed the legs of\t the
\nlatter with
\n5 7 5
\nhis  own legs and he and the deceased were in this  position
\nwhen\t  one  of  the assailants fired at.  Hazarilal,\t who
\nthereupon jumped\t down from the cot. When we  picture
\nto ourselves the occurrence\t   as narrated we find it to
\nbe unrealistic and, therefore, untrust\tworthy,\t   if\t not
\nfantastic.  There is undoubtedly considerable  embellishment
\nin  the court version as compared to what was stated by\t the
\nwitness in the F.I.R. This embellishment does not add to the
\ncredibility of the story but it certainly suggests that\t the
\nwitness has\t    a highly imaginative mind and is capable
\nof playing on his imagi\t nation.   We,\ttherefore,  do\t not
\nconsider it to be safe to hold on  his evidence that the two
\nappellants  were  among the assailants and that\t Naubat\t had
\nfired  the fatal shots. Kanwar Sen (P.W. 3) deposed that  on
\nthe day of the occurrence he was sitting in the Nohra  of
\nHazarilal  who was sitting on a cot.  He and  Inderjit\twere
\nsitting\t  on  the  fodder  because  it\twas  drizzling.\t The
\nstatement  in regard to the occurrence may now be  described
\nin his own words
\n\t      “Four  unknown persons came, one of  whom\t had
\n\t      ared  jhola. One of them sat down on  headside
\n\t      of Hazarilal and another proceeded ahead.\t The
\n\t      remaining two caught hold of me and  Inderjit.
\n\t      Inderjit\tand  I raised an alarm.\t The  person
\n\t      having the red Jhola took out a pistol   from
\n\t      the Jhola and fired at Hazarilal. On being hit
\n\t      with  the\t shot,\tHazarilal  fell\t down.\t The
\n\t      badmash,\twho was sitting on the\theadside  of
\n\t      Hazarilal,  pressed  his legs with  his  legs.
\n\t      Having  loaded  the pistol, the  person  armed
\n\t      with  pistol,  fired  a  shot  at\t  Hazarilal.\n<\/p>\n
\t      Hazarilal\t died.\tRam Singh Ranchor  and\tImam
\n\t      Khan arrived at the spot. The  badmashes\twent
\n\t      away through the eastern side.\n<\/p>\n
\t      I\t did  not know all the four  badmashes\tfrom
\n\t      before.  (Having touched Budh and Naubat,\t the
\n\t      witness  stated)\tIdentified them in  jail.  I
\n\t      saw  these  two accused at the  spot  for\t the
\n\t      first  time and thereafter in jail. I did\t not
\n\t      see them anywhere in the intervening period.”
\nIn   cross-examination\t the  witness  admitted\t  that\t the
\nassailants has\t    been seen by him only for about three or
\nfour minutes. He had gone to the jail for identification  on
\nthree occasions. On two occasions he identified the  accused
\npersons\t in separate parades but did not identify anyone  on
\nhis third visit. The third visit deposed by him seems to  us
\nto be a somewhat suspicious circumstance and the prosecution
\nhas not cared even to attempt to explain this statement. The
\nwitness was also unable to state as to which accused   had
\nbeen identified by him in the first parade and which in\t the
\nsecond-. He was further unable to tell the dates on which he
\nhad\t  gone to the jail for identification. According  to
\nhim he had gone to the jail at about II or 12 O’clock during
\nthe day time.\n<\/p>\n
-576
\nThese  two  witnesses  claimed\tto  have  seen\tthe   actual
\noccurrence which took three or four minutes.  Two assailants
\nheld  these  two  witnesses and one sat on the\tcot  of\t the
\ndeceased  and pressed the legs of the deceased with his\t own
\nlegs and the fourth one fired two shots having re-loaded the
\npistol\tafter  the  first  shot.   Their  glimpses  ,of\t the
\nassailants  would  of course be somewhat  fleeting  but\t the
\ndifferent   parts  played  by  the  four  assailants   would
\ncertainly have left on their minds a fairly firm  impression
\nas  to\twhat  part the two appellants had  played  in.\tthat
\nsordid\tdrama.\t The power to  identify\t undoubtedly  varies
\naccording  to  the power of observation and  memory  of\t the
\nidentifier  and\t an  observation may  be  based\t upon  small
\nminutiae  which a witness, especially a\t rustic,  uneducated
\nvillager  may not be able to describe or explain.   In\tthis
\ncase  we  find\tthat  P.W.  4  Ranchor\tdoes  not  know\t the
\ndifference  between  a minute and a second.   An  illiterate
\nvillager  may  also at times be found to be  more  observant
\nthan an educated man and his identification in a given\tcase
\nmay  impress  the court without the witness’ being  able  to
\nformulate  his reasons for the identification.\tBut  on\t the
\npeculiar  facts\t and circumstances of this  case  one  would
\nexpect\tthese  two witnesses to state what  particular\tpart
\nthese two appellants played in the course of the occurrence.
\nWithout\t some  clear indication to that effect it  would  be
\ndifficult for a judicial mind to rely for conviction on\t the
\ngeneral assertion of these witnesses that the\t  appellants
\nwere among the assailants who murdered the deceased.   Ranchor
\n(P.W. 4) gave his version as follows:\n<\/p>\n
\t      “It happened 131 months ago.  It was 10 a.m. I
\n\t      had gone to the shot) of Sannu Lal Patwari  to
\n\t      make purchases.  Ram Singh, Darzi, was present
\n\t      at that shop along with me.  I heard an  alarm
\n\t      from  the eastern side in which direction\t lay
\n\t      the Nohra of Hazarilal.  I heard the sound  of
\n\t      a\t fire.\tRam Singh and I rushed\ttowards\t the
\n\t      Nohra.  When both of us were at a distance  of
\n\t      15 Dacron from the Nohra, I heard the sound of
\n\t      another  fire.  I saw four  unknown  badmashes
\n\t      coming  out of the Nohra of  Hazarilal.\tThey
\n\t      ran  away towards the east.   There  badmashes
\n\t      were empty handed and one of the badmashes had
\n\t      a\t Katta in his right hand and a red jhola  in
\n\t      his  left hand.  I went to the Nohra  and\t saw
\n\t      that Hazarilal was lying dead and Tnderjit and
\n\t      Kanwar Sen were present there.  Imam Khan also
\n\t      reached the Nohra of Hazarilal after me.
\n\t      I\t had gone to the District Jail in  order  to
\n\t      identify\tthe  badmashes (Having\ttouched\t the
\n\t      accused\tNaubat\tand  Budhsen,  the   witness
\n\t      stated)  I  identified them  in  the  District
\n\t      Jail.   At first 1 saw them running away\tfrom
\n\t      the Nohra.  Thereafter, identified them in the
\n\t      District Jail.\n<\/p><\/blockquote>\n
\t      5 77
\n\t      I\t never saw them in the\tintervening  period.
\n\t      (Having  touched Naubat, accused, the  witness
\n\t      stated).\tHe had a Katta in his right had\t and
\n\t      a jhola in his left hand.”\n<\/p><\/blockquote>\n
In  cross-examination  he  stated that he had  gone  to\t the
\nDistrict  Jail, Aligarh twice for identification.   In\tthe,
\nfirst  identification  he identified the person who  had  ‘a
\njhola  in  his\thand and at  the  second  identification  he
\nrecognised  the other, Budhsen.\t He also stated that  before
\nidentification\tProceedings, the Deputy Sahib  had  enquired
\nfrom him as to whom he had come to identify to which he\t had
\nreplied\t that  he had come to identify the persons  who\t had
\ncommitted  the murder of Hazarilal.  This witness  only\t saw
\nthe assailants when they were running away after the alleged
\nmurder.\t Normally speaking, therefore, his would be a  still
\nmore fleeting glimpse of the assailants as compared to\tthat
\nof the two earlier witnesses.  To sustain the conviction  on
\nhis evidence as to identification one would certainly expect
\na more firm an( positive reference to the appellant, who was
\nholding\t  a  jhola  and\t A  pristol  (katta).\tduring\t the
\nidentification parade.\tVithout such corroborative  evidence
\nthe statement in court identifying Naubat, appellant,  would
\nbe of little value.\n<\/p>\n
This  is not all.  The statements of these  three  witnesses
\nare  otherwise also unimpressive and coupled with  the\tfact
\nthat  the possibility of these persons having seen at  least
\nBudhsen\t on  October 21, 1967 outside the, jail\t gates\twhom
\nthey  are supposed to have identified a week later the\ttest
\nidentification parades cannot be considered to provide\tsafe
\nand trustworthy evidence on which the appellants’ conviction
\nhas been sustained by the high Court.\n<\/p>\n
Shri O. P. Rana on behalf of the State very strongly  argued
\nthat under Art. 136<\/a> of the Constitution this Court does\t not
\ninterfere  with\t the  conclusions of  facts  arrived  at  on
\nappreciation  of evidence and in this case on  consideration
\nof the evidence relating to the test identification  parades
\ntwo courts below have come to a positive conclusion that the
\nappellants  were two out of the four unknown  assailants  of
\nHazarilal,  deceased.\tThis Court, so argued  the  counsel,
\nshould\taffirm that conclusion in the absence of any  proved
\nlegal infirmity.  In regard to the sentence the counsel con-
\ntended\tthat this is a matter which rests in the  discretion
\nof  the\t trial\tcourt  and when the  sentence  of  death  is
\nconfirmed by the High Court this Court should not  interfere
\non appeal under Art. 136.<\/a>\n<\/p>\n
It  is undoubtedly true that under Art. 136<\/a> this Court\tdoes
\nnot  ordinarily interfere with conclusions of fact  properly
\narrived at by the High Court on appreciation of evidence  on
\nthe  record.  except  where there is  legal  error  or\tsome
\ndisregard  of the forms of legal’ process or a violation  of
\nthe principles of natural justice resulting
\n13 Sup.\t Cl\/70-8
\n578<\/span>
\nin  grave  or substantial injustice.  In Tej Narain  v.\t The
\nStale  of U.P<\/a>. (1) this Court, after examining its  previous
\ndecisions  in which this Court had not\taccepted  concurrent
\nfindings or had re-examined the evidence for itself, said
\n\t      “The above cases show that this Court has\t not
\n\t      accepted concurrent findings of fact if  there
\n\t      is no evidence for the finding or if there has
\n\t      been  an\tomission to notice  material  points
\n\t      while appreciating evidence or to bear in mind
\n\t      relevant\t considerations\t which\t swing\t the
\n\t      balance in favour of the accused.\t It has also
\n\t      on  occasions reexamined the evidence in\tview
\n\t      of the fact that the case against the  accused
\n\t      was  based on circumstantial evidence  and  it
\n\t      was  of an extraordinary nature.\tIn the\tcase
\n\t      before us, as we will show presently the, High
\n\t      Court  appears to have  completely  overlooked
\n\t      the variation in certain important aspects  by
\n\t      P.W. 3, while deposing at the trial from\twhat
\n\t      he  had stated earlier’ and  consequently\t the
\n\t\t\t    High  Court could not apply its mind
\nto  their
\n\t      significance.   In view of this  infirmity  in
\n\t      the  judgment and other  considerations  which
\n\t      will  be\tpointed out later we  are  satisfied
\n\t      that  this is one of the exceptional cases  in
\n\t      which  we should undertake the examination  of
\n\t      the entire evidence and appraise it.”\n<\/p>\n
In that case the following observations of Hidayatullah\t J.,
\n(as the present Chief Justice then was) from the judgment in
\nAnant  Chintaman  Labu\tv.  The State  of  Bombay<\/a>  (2)\twere
\nreproduced with approval:\n<\/p>\n
\t      “Ordinarily,  it is not the practice  of\tthis
\n\t      Court  to\t reexamine  the\t findings  of\tfact
\n\t      reached  by the High Court particularly  in  a
\n\t      case  where  there is concurrence\t of  opinion
\n\t      between  the two Courts below.  But  the\tcase
\n\t      against  the  appellant is entirely  based  on
\n\t      circumstantial  evidence,\t and  there  is\t  no
\n\t      direct evidence that he administered a poison,
\n\t      and  no poison has, in fact, been detected  by
\n\t      the  doctor,  who\t performed  the\t  postmortem
\n\t      examination, or by the Chemical Analyser.\t The
\n\t      inference\t of  guilt having been drawn  on  an
\n\t      examination of a mass of evidence during which
\n\t      subsidiary  findings  were given\tby  the\t two
\n\t      Courts  below, we have felt it  necessary,  in
\n\t      view of the extraordinary nature of this case,
\n\t      to  satisfy ourselves whether each  conclusion
\n\t      on  the  separate\t aspects  of  the  case,  is
\n\t      supported by evidence and is just and  proper.
\n\t      Ordinarily, this Court is not required to
\n\t      (1)   Crl.  As.  Nos. 81, 112 and 132 of\t1964
\n\t      decided on 23-10-1964.\n<\/p><\/blockquote>\n
\t      (2)   [1960] 2 S.C.R. 460.\n<\/p><\/blockquote>\n
\t      579<\/span><\/p>\n
\t      enter  into  an elaborate examination  of\t the
\n\t      evidence, but we have departed from this\trule
\n\t      in  this\tparticular  case,  in  view  of\t the
\n\t      variety of arguments that were addressed to us
\n\t      and   the\t evidence  of  conduct\t which\t the
\n\t      appellant\t has  sought  to  explain  away\t  on
\n\t      hypotheses   suggesting\tinnocence.     These
\n\t      arguments, as we have stated in brief, covered
\n\t      both  the\t factual  as  well  as\tthe  medical
\n\t      aspects  of the case, and have necessitated  a
\n\t      close examination of the evidence once  again,
\n\t      so  that we may be in a position to  say\twhat
\n\t      are the facts found, on which our decision  is
\n\t      rested ”\n<\/p><\/blockquote>\n
In  Mahebub  Beb v. The State of Maharashtra(1)\t this  Court
\nobserved :\n<\/p>\n
\t      “We   have  been\ttaken  through\tthe   entire
\n\t      evidence\tof  all the important  witnesses  by
\n\t      counsel for the appellants and we do not think
\n\t      that  the conclusion recorded by the  Sessions
\n\t      Judge and confirmed by the High Court was\t one
\n\t\t\t    which  could  not reasonably be arrive
\nd  at  by
\n\t      those  Courts.  There are undoubtedly  certain
\n\t      discrepancies  in the statements of  the\tfour
\n\t      witnesses, Anna, Kisan, Sahebrao and  Sukhdeo.
\n\t      But  what\t weight should be  attached  to\t the
\n\t      evidence\tof the witnesses was  essentially  a
\n\t      matter with which the Court of first instance,
\n\t      before  whom the witnesses were  examined\t was
\n\t      concerned, and if the view taken by that Court
\n\t      is confirmed by the High Court, even  assuming
\n\t      that  this Court may, if the case\t were  tried
\n\t      before  it,  have\t taken\ta  different   view,
\n\t      (though  we  do not say that in this  case  we
\n\t      would have so done) we would not be  justified
\n\t      in   making  a  departure\t from  the   settled
\n\t      practice\tof this Court and proceed to  review
\n\t      the evidence.”\n<\/p><\/blockquote>\n
In  Brahmin  Ishwar  Lal Manilal v.  The  State\t of  Gujarat
\n(2) Court stated the position thus :\n<\/p>\n
\t      “We  have\t dealt\twith the  arguments  of\t Mr.
\n\t      Shroff  at some length but we wish to  restate
\n\t      that  this Court will not examine\t for  itself
\n\t      evidence\tled in a criminal case unless it  is
\n\t      made  to\tappear that justice  has  failed  by
\n\t      reason  of some misapprehension or mistake  in
\n\t      the reading of the evidence by the High Court.
\n\t      The  High Court must be regarded as the  final
\n\t      court  in\t criminal jurisdiction\tand  special
\n\t      leave  given  in\ta  criminal  case  does\t not
\n\t      entitle the person to whom the leave is  given
\n\t      to canvass the correctness of the findings  by
\n\t      having the evidence read and ra-
\n\t      (1)   Crl.  A. No. 120 of 1964 decided on 19th
\n\t      March, 1965.\n<\/p><\/blockquote>\n
\t      (2)   Ctl.   A.No.  129  of  1963\t decided  on
\n\t      August 10, 1965.\n<\/p><\/blockquote>\n
\t      580<\/span><\/p>\n
\t      appraised.    There  must\t ordinarily   be   a
\n\t      substantial  error  of law or procedure  or  a
\n\t      gross   failure  of  justice  by\t reason\t  of
\n\t      misapprhension  or  mistake  in  reading\t the
\n\t      evidence or the appeal must involve a question
\n\t      of principle of general importance before this
\n\t      Court  will  allow  the oral  evidence  to  be
\n\t      discussed.”\n<\/p><\/blockquote>\n
In G. V. Subbramanyam v.  State<\/a>. of Andhra Pradesh (1)\tthis
\nCourt appraised the evidence on the plea of self-defence and
\nallowed the appeal because the approach of the High Court on
\nthis plea was found to be incorrect.  Again, in Raja Ram  v.
\nState  of  Haryana  (2 ) because of  special  features\tlike
\nrejection  by  the  court below of a  considerable  mass  of
\nevidence  on  serious charges, this Court  looked  into\t the
\nevidence  to  see  how far the case as\tframed\tagainst\t the
\nappellant could be held proved.\n<\/p>\n
Before\tus the entire case depends on the identification  of
\nthe appellants and this identification is founded solely  on
\ntest identification parades.  The High Court; does not\tseem
\nto have correctly appreciated the evidentiary value of these
\nparades\t though\t they  were considered\tto  be\tthe  primary
\nevidence  in support of the prosecution case.  It  seems  to
\nhave proceeded on the erroneous legal assumption that it  is
\na  substantive\tpiece of evidence and that on the  basis  of
\nthat  evidence alone the conviction can be  sustained.\t And
\nthen  that  court  also ignored important  evidence  on\t the
\nrecord\t in  regard  to\t the  manner  in  which\t  the\ttest
\nidentification\tparades\t were  held,  and  other   connected
\ncircumstances suggesting that they were held more or less in
\na  mechanical  way without the necessary  precautions  being
\ntaken to eliminate unfairness.\tThis is clearly an erroneous
\nway of’ dealing with the test identification parades and has
\ncaused failure of justice.  Shri Rana laid great emphasis on
\nthe fact that there is no enmity shown between the witnesses
\nand  the appellants.  In our opinion, though this factor  is
\nrelevant  it  cannot  serve as\ta  substitute  for  reliable
\nadmissible  evidence required to establish the guilt of\t the
\naccused beyond reasonable doubt.  The evidence in regard  to
\nidentification having been discarded by us as legally infirm
\nand  which does not connect the appellants with the  alleged
\noffence\t it cannot by itself sustain the conviction  of\t the
\nappellants.  Non-disclosure on the record as to how and when
\nthe Investiga to the lacuna in the prosecution case.   These
\nappeals are allowed and the accused acquitted.\n<\/p>\n
Y.P.\t\t\t\t\t\t     Appeals\nallowed..\n(1)  [1970] 1 S.C.C. 225.\n<\/pre>\n
(2)  crl.  A. No. 62 of 1968 on March 26, 1970
\n5 81<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Budhsen vs State Of U.P on 6 May, 1970 Equivalent citations: 1970 AIR 1321, 1971 SCR (1) 564 Author: I Dua Bench: Dua, I.D. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249714","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBudhsen vs State Of U.P on 6 May, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/budhsen-vs-state-of-u-p-on-6-may-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Budhsen vs State Of U.P on 6 May, 1970 - 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