Rampal Tewari vs State of U.P.

B.L. Yadav, J.—This is an application for bail filed u/s 439(1) of the Code of Criminal Procedure, 1973. The applicant is being prosecuted for an offence u/s 396 IPC in Crime No. 47 of 1985, Police Station Kalwari, District Basti. The applicant''s bail application was rejected by the order dated 16-9-1985 passed by the Sessions Judge, Basti.

The prosecution story, as unfolded in the first information report (Annexure ''1'') in brief, is that a dacoity was committed on 19/20-5-1985 at about 2 A.M. in the night at the residence of one Ram Lagan by 7 or 8 miscreants, ultimately Ram Lagan was killed and ornaments and wrist watches etc. were looted. The First Information Report was lodged next day at 5 A.M. at Police Station Kalwari, District Basti.

The applicant is alleged to have been arrested the next day by the police on the information given by an informer, when he was lying in a bush and was crying on account of injuries received in the scuffle between the applicant, his associates on one side and the family members of the deceased and the prosecution witnesses on the other side.

The learned Counsel for the applicant urged that no identification parade was held and that the applicant has been falsely implicated and was arrested the next day on the basis of the information received from an informer. There was no evidence against the applicant and he was entitled to bail. He placed reliance on Mohan Lal Ganga Ram Gehari v. State of Maharashtra 1982 UPCRC 226 and Ngangom Iboton Singh and Another Vs. Union Territory of Manipur, and some other decisions but I do not consider necessary to refer all of them.

The learned Counsel for the State, on the other hand, urged that the applicant was arrested on 20-5-1985 the next day from the date of incident, in a bush near the village where the prosecution witnesses and other residents of the village identified him and he was also identified during the occurrence. He urged that the applicant did not demand identification. That can be held later. He relied on State of Uttar Pradesh Vs. Rajju and Others, .

In the affidavit accompanying the bail application it has not been averred that in fact the identification was demanded by the applicant. In this connection there is averment under paragraph No. 4 of the affidavit. For the sake of convenience the same is being set out below:

That the applicant was not named in the First Information Report and the identification parade has also not been held. He was not alleged to have been arrested on the spot. According to the police, he has been arrested next day on the basis of information received through an informer.

From the aforesaid averments under paragraph No. 4 of the affidavit it is clear that the applicant did not demand for identification parade being held. Rather he had stated that the identification parade had not been held so far. As the investigation is still in progress the identification parade can be held at any time. I hope that in case the applicant demands the identification, the same would be held by the prosecution according to the procedure provided under the law.

Authorities relied on by the applicant are to the effect that in case the identification was being demanded by the accused, the prosecution shall hold the same, otherwise an adverse inference can be drawn against it.

In State of Uttar Pradesh Vs. Rajju and Others, on page 710 (para 13) relied upon on behalf of the State the Supreme Court made following observations:

The learned Sessions Judge rightly held that it was not necessary for the State to hold identification parade when according to the prosecution they were arrested at the spot. If the accused felt that the witnesses would not be able to identify them, they should have requested for an identification parade.

I am of the view that identification parade is within the domain of investigation. The accused has no right to demand that a particalar part of the investigation may be held in a particular mode. It does not affect the rights of the accused of the trial. Supposing that no identification was held and the witnesses identified the accused in the Court lock up, the benefit of it would go to the accused. The identification parade, in any case, is not substantive piece of evidence. It is, however, certainly a corroborative evidence.

It is equally true that absence of test identification is not fatal in all cases. In case accused are previously known (there is) no need to hold identification. Identifications are of little value to the prosecution. Delay in conducting identification parade does not cause prejudice to the accused in all cases. Further identification parades are of the stage of investigation and are essentially governed by Section 162 Code of Criminal Procedure. See Jadunath Singh and Another Vs. The State of U.P., , Mehtab Singh v. State of U.P. AIR 1975 SC 275, Raj Kishore v. State of U.P. 1971 SC 1058 and Budhsen and Another Vs. State of U.P., .

It has been the consistent view that the value of the identification evidence is a difficult problem confronting a Judge while deciding a case on its basis. Keeping in view the human fallibility and fugibility of memory it would not be out of place to refer an observation made in Dwight Mc(sic). Carty''s American Classic Psychology for the Lawyer (New York Prentic Hall Cl. 7 p. 2051) to the effect that "The major sources of miscarriage of Justice are due to wrong identification and as the identification evidence has expounded many folds of inaccuracies, hence the identification evidence should be examined with great care." As in the instant case the identification parade has not yet been held and that would be held provided the applicant demands it or the prosecution considers it essential. As is clear from the contents of the affidavit that even no where it was alleged that the applicant demanded the identification parade being held but the prosecution was not holding it. In other words, it is equally distinct that the identification has not been held so far. This may be that the prosecution did not want to hold it as the witnesses have already seen the applicant the next day while the accused was being arrested and they have also seen the accused in the occurrence. But it is entirely different aspect of the matter that in case the applicant demands the holding of the identification, in all probabilities and justification I am hopeful that the prosecation should hold it.

As the investigation is still in progress and there is a mention in the case diary that the applicant was apprehended next day from the date of occurrence at the instance of an informer in a bush while he was crying for help having received a number of injuries and the villagers collected there including the prosecution witnesses, they have sufficient opportunity to see him again in the sun shine. The identification parade can be held either when the applicant demands it or prosecution deems it necessary.

In view of these facts, I don''t consider it to be fit case for granting bail to the accused. The bail application is rejected at this stage.

Application rejected.