IMPORTANT POINT
Failure to hold test identification parade even after a demand by accused is not always fatal and it is only one of relevant factors to be taken into consideration with other evidence.

JUDGMENT

Srinivasan, J.-This appeal by special leave is directed against the judgment of the High Court of Allahabad confirming the order of conviction passed by the III Additional Sessions Judge, Kanpur on a charge under Section 302 I.P.C. against the appellant and sentence for rigorous imprisonment for life.

2. The case of the prosecution was as follows :

On April 7, 1977 at about 3.30 P.M. the victim Shree Prakash was going in a rickshaw with his servant Nanhu Singh (PW-3) followed by Balkrishan Bajpai (PW-1) and Mohammed Haneef (PW-2) in another rickshaw in the crossing of Alumandi, Cooperganj, Kanpur within the area of the police station Anwar Ganj. At that time the appellant arrived at the spot sitting on the pillon of a motor cycle driven by another person, shot the victim with a pistol and sped away. The witnesses proceeded to the police station which was very near the place of occurrence and lodged a complaint around 3.45 P.M. The victim was taken to the hospital where he was declared dead. While PW1 stayed at the police station for giving a statement, PW 2 went to inform the sister of the victim. The name of the appellant was mentioned by PW1 in the FIR who could not however give the name of the person who was driving the motor-cycle though he claimed that he could identify him on seeing his face. The appellant could not be traced till he surrendered in Court on 13.5.1977.

3. On that date itself the appellant moved an application before the C.M.M. Kanpur claiming that witnesses were not known to him and that a test identification parade should be ordered. The C.M.M. dismissed it on the ground that the offence being one exclusively triable by Court of Sessions, he could not pass orders thereon. That order was challenged in the Court of Sessions, Kanpur. The latter allowed the prayer by order dated 14.6.77 and directed the appellant to be put up for identification. But the identification parade was not held.

4. The trial went on and the prosecution examined as many as nine witnesses, including three eye witnesses. The accused while putting forward a case of total denial examined three witnesses. The trial judge accepted the case of the prosecution and found the accused guilty of murder punishable under Section 302 I.P.C. On appeal, the High Court confirmed the same.

5. In this appeal, learned counsel has urged five contentions - (1) The failure of the police to put up the appellant for identification parade inspite of an order of the Court of Sessions is fatal to the prosecution inasmuch as the appellant has challenged the claim of PWs 1 to 3 that they knew him already. (2) The non-examination of the rickshaw pullers is a vital factor omitted to be considered by Courts below; (3) The evidence of PW3 runs counter to the medical evidence and deserves to be rejected; (4) The conduct of PW1 after the occurrence was unnatural and he should have been disbelieved; (5) There was no motive for the appellant to commit the offence.

6. We will presently consider them seriatim. The first contention is pressed rather strongly by the learned counsel on the basis of an observation made in Shri Ram v. The State of U.P.1. The Court said in that case that the circumstance that the accused had voluntarily accepted the risk of being identified in a parade but was denied that opportunity was an important point in his favour. In that case, the trial Court was influenced by the aforesaid circumstance and acquitted the accused. On appeal the High Court rejected the same as 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. This Court while holding that no rule of law requires that the oral testimony of a witness should be corroborated by evidence of identification and that such evidence is itself a weak type of evidence observed thus :

"B