Gaddam Vijaya Bhskara Reddy and others vs State of A.P.

The petitioners are accused No.l, 2, 9, 10 and 11 in Crime No.42/98. The Inspector of Police, Addanki has filed a charge-sheet against the petitioners and 12 others in the Court of the Addl. Munsif Magistrate, Addanki under Sections 147, 148, 302, 427 read with 149 IPC and Sections 3 & 5 of E.S. Act. It is alleged that on 15-9-1998 at 6.00 p.m. the defacto complainant along with her husband was proceeding from Narsaraopet to Kammalapadu. On reaching Kammalapadu, the defacto complainant''s husband got down from his vehicle and was talking to villagers, the driver of the car was standing near the car and at that time Al and A2 hurled bombs on the face of the driver and A3 and A4 hurled bombs on the husband of the defacto complaint. Subsequently A5 to Al I armed with axes, knives and sickles chased and attacked the husband of the defacto complainant. The husband of the complainant died and a report was given to the Police on 15-9-1998 by his wife. The petitioners claim that they came to know about the incident and about the fact that they have been implicated in the case on 16-9-1998 although they were not present at the scene of occurrence. It is also submitted that on 16-9-1998 a news item appeared in Eenadu and Vaartha daily which attributed a statement to the Superintendent of Police, Ongole saying that the deceased had died after he was attacked by unknown offenders. It is further stated that the petitioners have no acquaintance with either the defacto complainant or the deceased. They say that they have never seen in their life the defacto complainant. Once they came to know that they have been named in the First Information Report they surrendered before the Police on 29-10-1998 and informed the Director General & Inspector General of Police and others and requested them to hold test identification parade. They submit that they filed petitions also for this purpose before the Director General of Police, D.I.G. of Police and Superintendent of Police. They submit that the defacto complainant cannot identify them as they were not known to her and their names have been mentioned in the FIR on instigation by somebody else. The petitioners filed an application before the Magistrate requesting him for directions to the Inspector of Police to hold identification parade. The learned Magistrate dismissed the application. Therefore, this petition has been filed.

I have heard the learned Counsel for the petitioners as well as the Public Prosecutor. The Public Prosecutor has not filed any counter but he has argued the matter. The question which is raised and which has to be decided in this petition is whether the investigating agency can be ordered to conduct an identification parade at the instance of accused or not. The learned Public Prosecutor submits that it is for the investigating agency to decide what steps are necessary to be taken during investigation of a case to collect the evidence against the suspects. He also submits that since the accused-petitioners had been named by the defacto complainant in the FIR itself therefore there was no need of identification. On the other hand, the learned Counsel for the petitioners submits that the petitioners had taken a risk by offering themselves for an identification parade, although the investigating agency had declined it, the petitioners were sure that since they were not at the scene of occurrence when the occurrence took place and they had never seen the defacto complainant in their life they would not be identified. In case an identification parade had been conducted, the petitioners would not have gone into agony of a full-fledged trial. Now, the charge-sheet has been filed and ultimately the accused would be acquitted but for no fault of them they would be put to the agony of a prolonged trial.

It is true that it is for the investigating agency to carry on the investigation in accordance with the demands of a particular case subject to the safeguards provided under the Criminal Procedure Code. But, I fail to understand that, if an accused takes a stand during the interrogation that he is not known to the complainant and he was not at the scene of occurrence why was not an identification parade conducted. It was for the benefit of the prosecution itself because the duty of the prosecution is not to prove a person guilty but, it is also their responsibility to see who is the real offender and this is also part of their duty to see that no innocent person is put to the agony of trial unnecessarily. It is not sufficient for Police to conclude that a person is guilty if he is named as an offender by the defacto complainant. The defacto complainant named the petitioners as accused, but it is the duty of the investigating agency to see whether the allegation is true or not. Ultimately if during the trial it is proved that the petitioners were not known to the complainant their identification and their presence at the scene of occurrence itself would become doubtful. Therefore, in my view when a request is made by the accused for an identification parade it must be held. It is true that there is no provision contained in the Criminal Procedure Code that gives a right to an accused to ask for an identification parade but in the interest of investigation and in the interest of the prosecution itself it is always safe to conduct an identification parade where identity is disputed.

In this connection, various judgments have been cited. One of the judgments is from Calcutta High Court reported in Provash Kumar Bose and Another Vs. The King, . By this judgment a Division Bench of Calcutta High Court held that on a question of identity it is not sufficient that the witness identify the accused in a Court to prove that such an accused have taken part in an occurrence when such witness had not known the accused previously. The Court found that if a witness was not known to the accused previously and he identifies him in the Court as a person taking part in an occurrence it is very necessary that there must be good corroborative evidence for such an identification and the corroborative evidence could only come in an identification parade. The following lines from the judgment are useful to be reproduced :

"On this question of identity it is necessary to remember that admittedly none of these witnesses knew either of these accused persons from before. The fact therefore that these witnesses have identified in Court Provas as the man who was in police uniform & Azizur Rahman as his companion is of very tittle consequence. Before we can accept such identification as sufficient to establish the identity of the accused. It is very necessary that there must be good corroborative evidence and the corroborative evidence which one is entitled to expect in cases of this nature is the evidence of the witnesses having pointed these accused persons whom they identified in Court from the midst of other persons with whom they were mixed up at a test identification parade. The evidence of their having identified such persons at a test identification parade has no substantive value, but it is very important corroboration of their evidence in Court. It is in circumstances like this that test identification parades are held."

There is a judgment from Allahabad High Court in Prakash Dhabi v. Slate of V.P., 1994 (1) Crimes 463, in which almost the same question was considered and it was the held that the purpose of holding an identification parade is to prove the correctness and veracity of a report in which persons have been named as accused. It further states that the trials take normally a long time and a witness may have seen the accused for the first time while committing an offence and by the time he reaches the Court as a witness he might have lost the memory and he may not be able to identify the accused but if an identification parade is held immediately after the occurrence such a person may be able to identify the accused and identity at identification parade may be used as corroborative evidence.

Similarly, the Supreme Court in a judgment in Jadunath Singh and Another Vs. The State of U.P., , while considering the import of Section 9 of the Evidence Act in the context of absence of test identification held that test identification in all cases is not necessary and is not fatal to the prosecution because if the accused person is well known by sight it would be waste of time to put him up for identification. The Court also held :

"Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eye-witnesses did not know him previously. It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist on an identification parade but if the accused does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, as pointed out above the prosecution will, unless there is some other evidence, run the risk of losing the case on this point."

After making these observations the Supreme Court further held that, whenever such a request is made to the Court that Court should order identification parade. The observations of Supreme Court even suggest that it can be ordered even after charge-sheet is filed. In this case the learned Additional District Magistrate (Judicial) refused the application of the accused seeking identification parade. Following observations of Supreme Court are reproduced :

"It seems to us that the reason given by the Public Prosecutor in the report and the reason given by the Additional District Magistrate (Judicial) in the order directing that identification requested for be not held were not valid. The fact that a charge-sheet had been received and the accused had been named by PWs. was no justification for not having ordered the test identification."

In another case Shri Ram Vs. The State of U.P., , the Supreme Court was considering a matter in which an application made by the accused for test identification had been rejected, the Supreme Court held :

"Shri Ram, along with Ram Chandra, had moved an application before the Additional District Magistrate (Judicial) who was conducting the committal proceedings that he was not known to the witnesses and therefore he should be put up for being identified in an identification parade. The Public Prosecutor objected to that request. The learned Magistrate upheld the objection and refused to direct that a parade be held. The circumstance that Shri Rant had voluntarily accepted the risk of being identified in a parade but was denied that opportunity was an important point in his favour. The High Court rejected it a inconsequential by observing that the oral testimony of witnesses even if not tested by holding an identification parade, can be made the basis of conviction if the request made by the accused is groundless and the witnesses knew the accused prior to the occurrence. It is correct to say that no rule of law requires that the oral testimony of a witness should be corroborated by evidence of identification. In fact, evidence of identification is itself a weak type of evidence. But the point of the matter is that the Court which acquitted Shri Ram was justifiably influenced by the consideration that though at the earliest stage he had asked that an identification parade be held, the demand was opposed by the prosecution and the parade was therefore not held."

In view of these judgments, I am of the opinion that the application should have been allowed by the trial Court because if at this stage when the trial is, yet to start the identification parade is not held this circumstance itself may become a ground for the acquittal of the accused. During the trial the accused has taken a risk therefore in my view the order passed by the learned Magistrate is fairly illegal which is accordingly set aside.

In the circumstances of the case, it is ordered that, before the trial starts the prosecution should take immediate steps to hold an identification parade with respect to the accused-petitioners.

The petition is accordingly allowed.