Evidence of identification obtained through an unsatisfactory test identification parade is weak and cannot be used to convict an accused person.

HARRIES, C.J. :- This is an appeal by one Kanai Lal Dwary who was tried by a learned Assistant Sessions Judge and jury upon a charge of dacoity. The jury unanimously found the appellant guilty under S. 395, Penal Code, and the learned Judge agreeing with the verdict convicted the appellant under that section and sentenced him to five years rigorous imprisonment. It is from that conviction and sentence that the present appeal has been preferred.

2. The charge against Kanai was that he and others on 17th March 1949, committed dacoity in the house of one Durgadas Nandi at Kanchannagar. A number of dacoits are said to have broken into the house and looted cash and property to the value of Rs. 1300.

3. At the trial the factual of dacoity was not contested and the only point at the trial was whether or not Kanai and four others who were standing their trial, were amongst the dacoits and had been satisfactorily identified by the witnesses. The only other piece of evidence against the accused was a confession by one Tej Bahadur which had been subsequently retracted.

4. Mr. Sudhanau Mukherji who has appeared on behalf of the appellant has confined his argument to the summing up of the learned Judge with regard to the evidence against his client.

5. The learned Judge very rightly pointed out that the retracted confession of Tej Bahadur was of little evidentiary value against the appellant Kanai. The learned Judge, I think, should have gone further than that and should have told the jury that the retracted confession of Tej Bahadur implicating Kanai was not evidence upon which the jury could convict Kanai. The implication of Kanai by Tej Bahadur was at most a circumstance which the jury could take into account by way of assuring them of the truth of other evidence. In short, the retracted confession of Tej Bahadur at most would only afford some weak corroboration of any other admissible evidence against the appellant. Merely telling the jury that the retracted confession was of little evidentiary value is not to my mind sufficient. The jury should be told that its evidentiary value is each that no conviction could be based upon it alone and that at most it can only be regarded as a weak corroboration of other evidence.

6. The only other evidence against the appellant Kanai was the evidence of two witnesses - Abhoy and Jatin, Abhoy (P.W. 11) and Jatin (P.W. 10) stated that they were villagers who had recognised these two dacoits. Admittedly they did not know the appellant and their evidence of identification was sought to be corroborated by evidence relating to a test identification.

7. Kanai who was practically a one eyed man was put up for identification and it is said that he was identified by Abhoy and Jatin. Had the test identification been a satisfactory one there can be no question that the identification of Kanai by these two witnesses at such a parade would afford valuable corroboration of their evidence that they had recognised this appellant during the dacoity. However the evidence relating to this teat identification is most unsatisfactory and it appears to me clear that as far as Kanai was concerned the test identification was a force. The learned Judge did warn the jury about the disquieting features of this test identification parade, but in my view he did not place the matter strongly enough to the jury.

8. The test identification parade was carried out by a Magistrate who is referred to as Radha Syam Babu in the summing up. In his evidence he stated that it had been reported, to him by the police that Kanai and another accused person had been in Court for hours, before the test identification and further that the two witnesses Abhoy and Jatin had also been in Court. If the accused and the witnesses had been in the same Court for some hours before the test identification parade then quite obviously the two witnesses would know that this practically one eyed man Kanai was alleged to have been in tie dacoity.

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