Neeraj vs State of U.P.

H.C. Mital, J.—In this bail application it has been urged that the applicant though has been named in the FIR, but still he is not known to the witnesses and, therefore, he claimed identification, but his application for identification was rejected and, therefore, he should be granted bail, as that is a circumstance creating doubt regarding the authenticity of the prosecution case.

The facts in brief according to the prosecution are that on 18-7-1989 at 9-30 P.M. at a restaurant of the complainant�s brother in Kuncha Sita Ram, P.S. Kotwali, Bareilly, the applicant along with two other co-accused arrived and at their instigation he threw away the paraat from the shop whereupon Gyaneshwar objected, then the applicant Neeraj inflicted knife blows on Gyaneshwar. Immediately thereafter Rameshwar Dayal from the shop opposite to the restaurant arrived to intervene, then the applicant Neeraj also inflicted several knife blows on him. However, Rameshwar Dayal survived and Gyaneshwar died. The applicant claimed identification on the plea that the witnesses did not know him.

Learned Counsel for the applicant relied on the decision in the case of Suresh Chand v. State 1979 ACR 385 wherein Hon�ble V.N. Verma, J. after considering the various decisions including of the Hon�ble Supreme Court held :

When an accused claims identification it should normally be allowed in order to lend assurance to the statements of the eye-witnesses of the occurrence and in order to corroborate their statements from the result of the identification proceedings, if the accused is a stranger to the prosecution witnesses and he claims identification, his request in this regard must always be allowed because it is only by holding his test identifiation that the veracity of the eyewitnesses could be checked. And if the prosecution turns down the accused�s request for identification it runs the risk of the veracity of the eye witnesses being challenged on that ground. In such a situation it would not be proper to place much reliance on the evidence given by the witnesses in Court.

It was a case of dacoity wherein the Appellant was alleged to have been caught on the spot and locked in a room and a person was sent to Police Station to make a report. After the report a Sub-Inspector arrived and Appellant was taken in custody and then taken to the Police Station. The Appellant had denied to have taken part in the dacoity. He also denied to have been arrested on the spot. In the appeal it was alleged that the Appellant was not put up for identification inspite of application. The witnesses did not know him. Under those circumstances the above view was taken by Hon�ble Verma, J.

In the case of Jadunath Singh and Another Vs. The State of U.P., after making reference to the various decisions of the various High Courts in which different views were taken, their Lordships relied on their earlier decision in the case of Prakash Chand Sogani v. State of Rajasthan, and unreported decision in Criminal Appeal No. 92 of 1956 dated 15-1-1957 (SC), and laid down as follows :

It seems to us that it has been clearly laid down by this Court that� the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. 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 it an acusced says that the alleged eye-witness 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.

(Under-lined my own)

The same view was reiterated by their Lordships of the Supreme Court in the case of Shri Ram Vs. The State of U.P., the facts were different and their Lordships observed as follows :

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 tact, evidence of identification is itself a week 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 that case it was further clear from the evidence of the eyewitness Sri Om Prakash Dubey, an Advocate that he had not given proper reply in cross-examination and he admitted that he could not identify other co-accused in that case in which the Appellant was also an accused and the Advocate of the Advocate was that he knew the Appellant because he was an accused in that case.

There is a direct decision of this Court of Hon�ble V.P. Mathur, J. in the case of Madan Mohan Singh alias Chhedi Singh v. State of U.P. 1986 ACR 163 wherein it was held :

There is no law to lay down that in every case in which the accused applies for being put up for identification the prosecution is bound to accept his request. Normally it should be so but if it refuses it take the risk and the risk is that if the Court ultimately holds that the witnesses who are deposing against the accused did not know him from before, their testimony will have to be discarded because it will become suspicious in the absence of a previous test identification inspite of the request of the accused.

His Lordship futher he�d that simply because the application for identification was not accepted he could not be entitled to bail. There is another latest decision in the case of Ram Karan Mak v. State 1989 ACR 228 wherein it was held by Hon�ble V.P. Mathur and M.M. Lal, JJ. that if the eye-witnesses did not know the accused and the accused was not put up for identification despite application by the accused praying for identification evidence of eye-witnesses was not reliable and the investigation was not lair.

After a consideration of the above decisions it is clear as is laid down by their Lordships of the Hon�ble Supreme Court that if there is any doubt in the matter the prosecution should hold identification parade specially if an accused says that the alleged eye-witnesses did not know him previously. It would also not be out of place to mention that it would not be proper to lay down that in every case in which prayer for identification of the accused has been rejected by the Investigating Agency the accused shall be entitled to bail. However, if from the record it appears that there was indeed some doubt in the matter and the prosecution has refused to hold identification parade even though the accused asserted that the alleged eye-witnesses did not know him previously and he applied for identification then of course that would be a ground for bail.

In the present case at this stage in the absence of the case-diary and the counter affidavit from the State it cannot be prima facie said whether there is any doubt in the matter of identification of the accused, hence the learned A.G.A. is directed to send for the case-diary and file a counter affidavit.

Learned Counsel for the applicant also pointed out that one of the witnesses has filed an affidavit. He is also allowed to file the same with a supplementary affidavit.

It be now listed on 8-2-1990.