TMI Blog1970 (12) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ny as 34 injuries were found on the deceased at the post-mortem conducted on his body on the same day at about 3 p.m. 3. The prosecution case in brief is as follows : It is common ground that there was great enmity between the deceased and Laturi Ahir and his sons, the two appellants. The deceased apprehended danger to his life from them, and on November 23, 1967, he sent an application to the Superintendent of Police, Mainpuri, alleging that Laturi and his son, Jadunath, Brahma, Panna Lal and Anokhey, etc. were terrorising the weaker and poorer sections of the village community and declaring openly that they would kill the deceased to silence his opposition for ever. He prayed that an enquiry may be made and suitable action taken against them. On February 25, 1968 the deceased came to Bewar in the evening to meet the A.D.O. in connection with an enquiry on a complaint made against Munshi Lal Pradhan of the village. He could not meet the A.D.O. as he was out of station. He stayed during the night with Prem Narain, P.W. 1, who happened to be a brother-in-law of his cousin Gulati Ram. According to Prem Narain, both of them got up in the morning at 6.45 a.m. and since it was Shivra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this case. Submitted for n.a. The Additional District Magistrate (Judicial) passed the following, order on the application, on April 20, 1968 : As charge sheet has already been received and the accused have been named by P.Ws., there appears to be no justification for ordering test identification. Accused be informed accordingly. The jail authorities be informed not to keep them ba parda. 5. We have set out these facts in detail because, as will presently appear, one of the points raised by the learned Counsel is that failure to put up the accused for identification either vitiated the trial or, in any case, rendered the evidence of P.W. 2, Mahesh Chandra, and P.W. 3, Dwarka Prasad, useless. 6. We may here notice that portion of the evidence of Dr. N.K. Mital, who conducted the post-mortem examination and on which one other point is sought to be founded. He found that the stomach was empty and the small intestines were half full and the large intestines were also half full. In cross-examination he stated that since the stomach was empty, the deceased should have taken his last meal about 4 to 6 hours before the infliction of the injuries. He was asked : The evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but only once or twice before that. For all these reasons the learned Sessions Judge held that the applications claiming identification were not bona fide and were intended to protract the proceedings, and accordingly he was unable to draw any adverse inference against the prosecution for the omission to parade the accused persons at a test identification parade in the jail. 8. The High Court believed the three eyewitnesses, Prem Narain, Mahesh Chandra and Dwarka Prasad. The High Court held that Mahesh and Dwarka Prasad are wholly independent witnesses having no affinity with the deceased and entertaining no animosity towards the appellants. The High Court observed that these witnesses had claimed to have known the appellants for the last six or seven years as they had been frequently visiting the town of Bewar, and the appellant, Girand Singh, was a student in a college at Bewar. 9. The learned Counsel for the appellants raised two principal points before us : (1) Since the accused were denied identification the trial was vitiated; (2) The medical evidence is in conflict with the prosecution case about the time of the assault. 10. The learned Counsel further urge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant at the trial. The actual evidence regarding identification is that which is given by the witness in Court. The fact that a particular witness has been able to identify the accused at an identification trade is only a circumstance corroborative of the identification in Court. If a witness has not identified the accused at a parade or otherwise during the investigation the fact may be relied on by the accused, but I find nothing in the provisions of the Code which confers a right on the accused to demand that the investigation should be conducted in a particular way. 14. In Perkash Chand Sogani v. The State of Rajasthan Criminal Appeal No. 92 of 1956. decided on January 15, 1957 (an un-reported decision of this Court) in connection with the point regarding identification, it was observed : Much is sought to be made out of the fact that no identification parade was held at the earliest opportunity in order to find out whether P.W. 7 Shiv Lal could have identified the appellant as the person who was at the wheel of the car and drove it and reliance is placed upon Awadh Singh and Ors. v. The Patna State A.I.R. 1954 Patna 483., Provash Kumar Bose and Anr. v. The King AIR1951Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having identified such persons at a test identification parade has no substantive value, but is very important corroboration of their evidence in Court. 17. In Kanta Prasad v. Delhi Administration 1958CriLJ698 . a point was made regarding non-holding of test identification parade by the police and this Court observed : As for the test identification parade, it is true that no test identification parade was held. The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance. It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course. 18. It seems to us that it has been clearly laid down by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for not having ordered the test identification. But on the facts of this case it is clear that P.W. 2 at least knew the accused from before. As regards P.W. 3, although he claims to have known the accused it is clear that his knowledge of the accused was very scant and if it had not been for the evidence of P.W. 2 we would not have placed reliance on the evidence of P.W. 3 in view of the fact that the police did not ask him to identify the appellant. 21. It is stated in Phipson on the Law of Evidence, 9th Ed., p. 415, as follows : In criminal cases it is improper to identify the accused only when in the dock; the police should place him, before hand, with others, and ask the witness to pick him out. Nor should the witness be guided in any way, nor asked Is that the man ? We consider that the same is the law in India, if the identity is in doubt. 22. Accordingly on the facts of this case we are of the opinion that the trial was not vitiated because the accused persons were denied identification. 23. Regarding the second point, we have already extracted the evidence of the doctor, and it is quite clear to us that the evidence is not in conflict with the prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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