Suresh Chandra vs State

V.N. Varma, J.—These are two appeals-Criminal Appeal No. 2975 of 1974 and Criminal Appeal No. 2815 of 1974-which I propose to dispose off together as they were filed by one and the same person, namely, Suresh Chandra, and are also more or less inter-dependent.

The facts of the case giving rise to these appeals are as follows:

One Sheopujan Lai Jaiswal was a resident of Madanpur Bazar situate in the cirele of P.S. Rudrapur, district Deoria. In his house he ran a shop also. On 28-12-1970, at about 7.30 P.M., he was inside his shop doing something in the company of his sons Hari Lal and Kanhaiya Lal. The shop was electrified and there was thus enough light in the shop at that time. While Sheopujan Lal and his sons were so sitting in their shop, 14 or 15 dacoits arrived there. They demanded the key of the iron safe from them. In the meantime, one Munni Lal, who lived next door, also happened to arrive there. One of the dacoits fired towards him whereupon he ran for his life shouting. Hearing his shouts several persons collected near the house of Sheopujan Lal Jaiswal. Kanhaiya Lal, son of Sheopujan Lal Jaiswal, gave a slip to the dacoits and ran inside the residential portion of his house. From there he brought out a gun and fired at the dacoits standing inside his shop. Sensing danger the dacoits left the shop and tried to escape. The villagers, however, gave them a fight and killed three of them at the spot. They also caught one of them alive-but the rest managed to escape. The person caught was questioned and he gave out his name as Suresh Chandra the Appellant before us. He was searched and a pistol and two live cartridges were recovered from his possession. The Appellant was then locked in a room and Munni Lal was sent to Thana to make a report. He made a report about this incident at 8.50 P.M.S.I. Surya Pratap Singh was present at the Thana when the report was made. He immediately left for the spot reaching there at 10 P.M. There he recorded the statements of the material witnesses, inspected the locality and drew the site plan Ex Ka-8. Thereafter, Hari Lal son of Sheopujan Lal Jaiswal handed over to him the pistol and cartridges which had been recovered from the possession of the Appellant. He kept these things in a parcel and duly sealed it. Thereafter, he took charge of the custody of the Appellant and sent him to Thana under police escort. Having done that, he held inquests on the dead bodies of the dacoits who had been killed by the villagers. After the usual ivestigation was over, the -Appellant was sent up to stand his trial u/s 395/397 IPC and 25 Arms Act. Two charge sheets were filed against him, one u/s 396/397 IPC and the other u/s 25 Arms Act. That is why, two trials took place in this case and after being convicted the Appellant filed two appeals, one against his conviction u/s 395/397 IPC and the other against his conviction u/s 25 Arms Act. It is these two appeals which are before us.

In both the cases the Appellant pleaded not guilty. He denied that he had taken part in the dacoity at the house of Sheo Pujan Lal Jaiswal on the night of 28-12-1970. He also denied that he had been arrested on the spot as claimed by the prosecution.

The learned trial Court found the prosecution case proved against the Appellant and it, therefore, convicted the Appellant Under Sections 395/397 IPC and 25 Arms Act and sentenced him to seven years'' R.I. under the first count and 14 years'' R.I. under the second count. Aggrieved, he has come up in appeal to this Court.

The story of the crime as narrated by the witnesses stands unchallenged and conclusively proves the commission of an offence punishable u/s 395 IPC and indeed the learned Counsel for the Appellant has made no attempt to question the factum of the occurrence. Accordingly, all that is necessary for me in this case is to examine the evidence and endeavour to judge whether or not the participation of the Appellant in this crime has been established beyond reasonable doubt.

The case against the Appellant rests on the direct evidence of Munni Lal (PW 1), Hari Lal (PW 2) and Narain (PW 4). They have all stated that the Appellant was amongst the dacoits who had committed dacoity at the house of Sheopujan Lal Jaiswal and that they had caught him at the spot after beating him. The main contention put forward on behalf of the Appellant before me is that none of these three witnesses is worthy of belief inasmuch as their testimony was open to grave doubt by reason of the Appellant not having been put up for identification inspite of his application. It is true that the holding of identification parade is a procedure not prescribed by any law but at the same time it is also true that identification parade is generally held at the investigation stage to test the veracity of the witnesses who profess either to have known the accused or to have identified an accused not already known. In the instant case the case taken up by the Appellant from the very beginning was that he had not been caught at the spot as claimed by the prosecution and the witnesses therefore, did not know him. Consequently, he prayed that he be put up for identification and the witnesses be asked to identify him. It appears that soon after he was arrested he gave an application to S.P. Deoria requesting him to direct the investigating agency to get his test identification done in Jail. Probably S.P. Deoria directed the Investigating Officer to get his test identification done and that is why the Investigating Officer took four remands from the Magistrate concerned for the identification of the Appellant in Jail. The first remand was taken on 29-12- 1970 and the fourth one on 22-3- 1971. The Investigating Officer, however, did not get the test identification of the Appellant done in Jail. He gave out that as the Appellant had been caught at the spot there was no need to get his test identification done. Failing to get justice at the hands of the investigating agency the Appellant then moved the Judicial Magistrate Deoria to arrange for his test identification in Jail. Judicial Magistrate Deoria also did not come to his rescue in this matter and he directed the Appellant to move the Executive Magistrate concerned for his test identification in Jail. Judicial Magistrate Deoria was most ill-advised in having not done anything in getting the test identification parade of the Appellant held in Jail. In all fairness he should have exercised his powers u/s 540 Code of Criminal Procedure and seen to it that justice was done to the Appellant. It, however, appears that he played into the hands of the police and thereby exposed himself to the charge that he was acting in concert with the police in not giving the accused a fair deal. It is now more or less well settled that 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. See Lajja Ram Vs. The State, , Hanif v. State 1973 AWR 408 and Mohammad Yaqub v. State 1974 ACC 43. In Jadunath Singh and Another Vs. The State of U.P., , the Supreme Court remarked 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 but if the prosecution failed to hold an identification test 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. Their Lordships further remarked that if there was any doubt in the matter the prosecution should always hold an identification parade specially when an accused says that the alleged eye witnesses did not know him previously. The same view was more or less reiterated by the Supreme Court in State of Uttar Pradesh Vs. Rajju and Others, . Their Lordships remarked that if the accused felt that the witnesses would not be able to idenitfy them they should have requested for an identification parade.

The learned Counsel for the State drew my attention to the ruling reported in State of U.P. Vs. Neel Kanth and Another, in support of his contention that in the case of spot arrest identification is not necessary. I have gone through this ruling with pleasure and profit and I may say here at once that it does not lay down in so many words that in every case of spot arrest identification of the accused is not necessary. The learned Judges have remarked that there may be cases in which the accused himself may claim identification test in order to support his plea of non-participation in the crime and in such cases the Court should consider the request of the accused on its merits and may in a suitable case require the prosecution to hold an identification parade. If, however, no request is made by the accused it will not be necessary to hold an identification test and the failure of the prosecution to put the accused for identification test will not be deemed to be a fatal weakness in the prosecution case. Therefore, this case also lays down that if the accused claims identification test in order to support his plea of non-participation in the crime the prosecution should hold an identification parade. In the case before us, the Appellant had repeatedly been asking the authorities concerned to get his identification test held but they rejected his request. An accused may or may not have legal right to claim for test identification and the holding of test identification may or may not be a rule of law but it is a rule of prudence. Test identification parade must always be held when the accused definitely asserts that he was unknown to the prosecution witnesses either by name or by face. Even if his assertion is found to be false no harm will be done if his test identification parade is ordered to be held. If in the identification parade the witnesses succeeded in identifying him the value of their evidence would be increased.

The learned Counsel for the State drew my attention to the judgment of Mr. Justice J.M.L Sinha delivered by him in Cr.A. No. 1109 of 1974 connected with Cr.A. Nos. 1108 and 1142 of 1974 on 11-4-1979 and urged that according to this judgment also test identification is not necessary in the case of spot arrest. In the case covered by this decision some persons were arrested on the night of 22-12-1972 from a grove and the police sent them up to stand their trial u/s 399/402 IPC. These persons denied their arrest in the manner as claimed by the police. According to them, they had been rounded up by the police from different places and on different dates and were subsequently framed up in this case. In support of their plea of non-participation in this crime they prayed for their identification test in Jail. They were put up for identification but the performance of the prosecution witnesses at the test identification was not at all found to be satisfactory. Despite that, the learned Judge refused to discard their evidence; instead he placed reliance on their evidence saying that the accused persons had been arrested at the spot and it was, therefore, immaterial whether the witnesses succeeded in identifying them or not. With respect I am unable to agree with this view of brother Sinha because I find it to run counter to the ratio laid down by the Supreme Court in Jadunath Singh and Another Vs. The State of U.P., and State of Uttar Pradesh Vs. Rajju and Others, and by our High Court in AIR 1955 AUd. 671 and State of U.P. Vs. Neel Kanth and Another, . My appreciation of law is that 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 identification that the veracity of the eye witnesses 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 the instant case the eye witnesses did not know the Appellant from before-according to their own admission it was only after questioning him that they had come to know about his name. Obviously, therefore, the Appellant was a complete stranger to them. In view of this it was absolutely necessary that the Appellant should have been put up for identification when from the very beginning he had been repeatedly making requests for his test identification. On every occasion his request in this regard was turned down. Probably, the prosecution was not sure that the eye witnesses would succeed in identifying him and that is why his request for identification was always ignored. In such a situation it would not be proper to place much reliance on the evidence given by the witnesses in Court. It is quite possible that the Appellant was arrested somewhere else and the police subsequently framed him up in this case. In any event the case against him is not free from doubt and he, therefore, deserves to be acquitted.

In the result, I allow both these appeals and set aside the conviction and sentences passed against the Appellant. He is on bail, his bail bonds are discharged and he need not surrender to them.