2002 Supreme(SC) 924

2002(6) Supreme 508
Supreme Court of India
(From Patna High Court)
U.C. Banerjee & B.N. Agrawal, JJ.
Dana Yadav @ Dahu & Ors. —Appellants
versus
State of Bihar —Respondent
Criminal Appeal Nos. 1156-1157 of 2001
Decided on 13-9-2002
Counsel for the Parties :
For the Appellants : P.S. Mishra and A. Sharan, Sr. Advocates, S. Chandra Shekhar, Vishna Sharma, Upendra Mishra, Tathagat H. Vardhan, Irshad Ahmed, ­Advocates.
For the Respondent : B.B. Singh and Kumar Rajesh Singh, Advocates.

Very important point
Ordinarily, if an accused is not named in FIR, his identification by witnesses in Court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated in this case.

Headnote:(i) Evidence Act, 1872—Section 9 —Relevancy of identification of an accused—Appellant 3 was neither named in FIR nor in statement before police but was identified in Court for the first time after 2 years of incident—Whether it is safe to uphold his conviction, as was done by Courts below? (No)—Case law discussed.

       Held : In the present case, appellant No.3-Deo Nandan was undisputedly not named as one of the accused in the first information report, though names of several other accused persons were enumerated therein. In statement made before the police, no prosecution witness has named him. He was named in court by Balroop Prasad (PW 3), Chandrika (PW 4), Bal Govind (PW 8) and Shambhu Prasad Komal (PW 14) but PW-4 and PW-8 identified another person as this appellant and thus these two witnesses wrongly identified this appellant. So far the other two witnesses, namely, PW-3 and PW-14 are concerned, though they have identified this appellant in court, but they did not disclose his name before the police. There may be a case where an accused is known to a prosecution witness who did identify him at the time of the occurrence but for manifold reasons, he could not have divulged his name to the informant before the first information report was lodged. One of the reasons may be that such a witness could not meet the informant before the first information report was lodged and no sooner, after lodging of the first information report, without any reasonable delay, when he was examined by the police, name of the accused was disclosed. The other reason may be where such a witness received injuries during the course of the occurrence and became unconscious, as such he could not get opportunity to disclose name of the accused to the informant before the lodging of the first information report and no sooner he regained consciousness, name of the accused was disclosed by him in his statement made before the police. These instances are by way of illustrations and cannot be exhaustive. In view of these and similar other circumstances, it can be said that merely because the accused was not named in the first information report, though he was known to some of the prosecution witnesses, no adverse inference can be drawn against the prosecution for not naming such an accused in the first information report. Likewise there cannot be an inflexible rule that if a witness did not name an accused before the police, his evidence identifying the accused for the first time in court cannot be relied upon. There may be a case where a witness has received injury during the course of occurrence, became unconscious and remained as such for few months while in the meanwhile, charge sheet was submitted by the police. In such an eventuality, statement of the witness could not have been recorded by the police and his identification for the first time in court may be relied upon. In the present case, there is no evidence that this appellant was known to PWs 3 and 14 from before. The occurrence is said to have taken place on 25th April, 1983 whereas PW-3 was examined after two years in the year 1985 and PW-14 after more than two and a half years after the occurrence, i.e., in the month of June, 1986, Thus, it would not be safe to place reliance on the identification of this appellant for the first time in court by these witnesses after an inordinate delay of more than two years from the date of the incident, especially when the identification in court is not corroborated either by the previous identification in the test identification parade or any other evidence. This being the position, we are of the view that the High Court was not justified in upholding conviction of Deo Nandan (appellant No. 3). (Para 9)

       (ii) Indian Penal Code, 1860—Sections 302/149, 307/149 and 436—Offences under—Appellants 1, 2, 4, 6 and 7 convicted under by Courts below—Appeal against—No test identification parade held despite direction by court—Whether fatal? (No in the facts)—Evidence of identification whether sufficient—Their conviction whether sustainable? (Yes)—Case law discussed.

       Held (after case law) : Thus, we are of the view that in case an accused denies the fact that he is known to the prosecution witnesses and challenges his identity by filing a petition for holding test identification parade, what a court is required to consider without holding any mini enquiry, is as to whether the denial is bona fide or a mere pretence and/or has been made with an oblique motive, to delay the investigation so as to make out a ground for grant of bail under proviso to Section 167(2) of the Code of Criminal Procedure. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but, however, if it is of the view that the same is a mere pretence, question for grant of the prayer would not arise. However, grant or refusal of such a prayer unjustifiably would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so called claim that the accused was known to him from before and identification in court cannot be accepted. But in case either prayer is not granted or granted but no test identification parade is held, the same ipso facto cannot be a ground for throwing out identification of an accused by a witness in court whose evidence is found to be unimpeachable. Thus the main thrust should be on answer to the question as to whether the evidence of a witness in court that he knew the accused from before and correctly identified the accused is trustworthy or not. If the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or if granted, no such parade was held is not material and would not in any manner affect the evidence of identification of an accused in court by a witness. (Para 29)

       Held further : Shri Mishra, learned counsel appearing on behalf of the appellants, by referring to the evidence of the Investigating Officer (PW 15) pointed out that on prayer being made on behalf of the appellants, other than Deo Nandan, order was passed by the Sessions Court in revision for holding test identification parade, but for reasons best known to the police, same was not carried out. We find that the said prayer was not made on behalf of any of the aforesaid five appellants who were named in the first information report, but was made on behalf of other accused persons, namely, Tilakdhari and Sehdeo who have been already acquitted. Therefore, for not holding test identification parade in relation to the other two accused persons referred to above, the appellants cannot take any advantage therefrom. Learned counsel, however, could not point out any material from the record in support of the bold submissions advanced by him that no test identification parade was held in spite of order passed therefor. It appears as a matter of fact that no petition was filed on behalf of the appellants challenging their identification by the prosecution witnesses. The submission, in our view, has been made in vacuum without their being any foundation for the same, therefore, we find no option but to reject the same being devoid of any substance. (Para 30)

       Held (on appreciation of evidence by High Court, particularly as to their identification) : In view of the law analysed above, we conclude thus:-

        (a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.

        (b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.

        (c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court.

        (d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.

        (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

        (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.

        (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above. (Para 38)

       Held finally : In view of the foregoing discussion, in our opinion, the High Court has not committed any error in upholding convictions of appellant Nos. 1, 2, 4, 6 and 7 and sentences awarded against them, consequently their appeals fail and the same are dismissed. Appeal of appellant No. 3 is allowed, his convictions and sentences are set aside and he is acquitted of all the charges. This appellant is directed to be released forthwith, if not required in connection with any other case. (Para 39)