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1982 Supreme(Del) 307
High Court Of Delhi
NAWAL KISHORE - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 45 of 1981
Decided On : 11/02/1982
D.B.Sethi, Gulshan Bai
Headnote:Indian Evidence Act, 1872-Section 9-Identification of accused-No proper identification when accused shown or known to prosecutions witnesses before identification parade-Circumstances when evidence of identification has little value-Precautions to be taken-When there are several identifying witnesses-Greater the crime stricter the proof-Impact of the maxim-Unfair identification-Effect of-
Fact-
On November 23, 1977 at about 9-15 p.m. a robbery was committed at the shop of Dr. L.D. Malhotra in Beedan Pura, of Delhi. When the doctor was closing his clinic two persons entered his shop and requested him to give some medicine to his companion who was wrapped in a white sheet but whose face was not muffled. The doctor refused to give medicine as it was his closing time. Then both the accused left the clinic and after two or three minutes they came with other three persons, re-entered the shop. They were armed with a revolver and a knife. They bolted the door of the shop from inside and pulled the curtains of windows and affrighted the doctor and looted all his cash and a wrist watch and made way. The doctor was so terrified that he did not make a report to Police that night and after consulting his men he reported the matter the next morning.
Procedural Facts-
All the five appellants were tried for offences under sections 395/397 I.P.C. They were found guilty and convicted and sentenced to eight years R.I. From their conviction and sentence they appealed to the High Court. In appeal the following questions arose.
Questions-
Can there be proper identification where accused have been shown or are previously known to witnesses? (No)
In what circumstances evidence of identification has little value?
What precaution should be taken when there are several identifying witnesses?
What is the impact of maxim-Greater the crime stricter the proof?
What is the effect of unfair investigation on the case?
Decision-
The High Court allowed all the five appeals.
Reasons-
1. Where both the Doctor and the compounder admitted in their testimony that they were shown the accused persons by police prior to identification parade, the accused persons rightly refused to take part in identification parade on the ground that they were shown to the witnesses.
It is improper to show the witnesses to the accused alone and ask: "Is that the main"? There is an obvious danger of the identification simply being based or the witness's assertion that the police have got the correct person. A conviction can be quashed if the accused is pointed out to the witness by the police before an identification parade.
2. Recollection depends, first, upon the strength of the witness's memory. Very sound and very old people tend to forget more easily than others. Secondly, the nature of the original impression; for example, whether it was accompanies by any unusual incident which made it likely that the witnesses impression would be preserved. Circumstances explained when evidence of identification can have very little value.
3. If there are several witnesses, they should be segregated or kept under supervision before the parade to prevent them from comparing notes about the criminal appearance and a witness who has completed his identification should not be allowed to rejoin the others.
4. Greater the crime, stricter the proof. This maxim applied to this case. The burden of establishing the guilt of the accused beyond reasonable doubt always lies on the prosecution which never shifts.
5. When the investigation is unfair it will be unsafe to convict the accused on the unsatisfactory evidence led by the prosecution.
( 1 ) THESE are five appeals from the order of the Additional Sessions Judge dated February 20, 1981. This judgment will govern them all.
( 2 ) THESE five appellants namely, Muksh, Dewan Ghand, Munim Kumar, Kishan Lal and Nawal Kishore were tried for offences under Sections 395/397 of the Indian Penal Code. They were found guilty. They were convicted. Each of them was sentenced to eight years rigorous imprisonment. From their conviction and sentence they appeal to this court.
( 3 ) THESE are the facts. On November 23, 1977 at about 9. 15 p. m. a robbery was committed at the shop of Dr. L. D. Malhotra in Beedan Pura, Karol Bagh, New Delhi. Dr. Malhotra lodged a first information report on November 24, 1977 at 11. 00 a. m. He complained that at his clinic on November 23, 1977 at night when he had finished his day s work and was leaving two persons entered his shop. One of them requested him to give some medicine to his companion who was wrapped in a white sheet but whose face was not muffled. These two persons were identified as Munim and Mukesh by the doctor in court. The doctor refused to give medicine as it was his closing time. Then both the accused left the clinic. After two or three minutes these two persons alongwith three other persons re-entered the shop. These were identified as Dewan Ghand, Nawal Kishore and Kishan Lal in court. Doctor s compounder, Harish Ghander, wag proceeding towards the gate and the doctor was following him. Mukesh gave a push to Harish Ghander. He whipped out a knife and made him sit on the chair. Munim also stood by the side of the compounder. Dewan Ghand had a revolver in his hand. Kishan Lal was armed with a knife. They motioned the doctor to go back, to the examination room. Nawal Kishore bolted the door from inside and pulled down the curtains on the window. He was also armed with a knife. The doctor was frightened seeing these men all around him. He obeyed them and sat on the chair. Dewan Ghand then showed him aloaded revolver. Four bullets were in the chamber and one socket was vacant. Dewan Ghand and Kishan Lal asked the doctor to hand over to them whatever was in his possession. The doctor took out the purse from his pocket. He handed over Rs. 700. 00 which lie had in the purpose. The accused persons then searched the purse to ascertain whether it contained more money. Then they asked the doctor to hand over the watch which he did. Then the accused asked him to hand over the key of the drawer which he gave to him. Kishan Lal went to the outer room and opened the drawer. He took out Rs. 400. 00 from the drawer. Munim and Mukesh divested Harish Ghander compounder of his watch and Rs. 15. 00 which he had on his person. Thereafter all the five accused left the clinic threatening the doctor that if he reported tile matter to the police he would be done to death. After that the doctor and the compounder left for their respective houses. The doctor was mortally afraid. He did not make any report to the police until next morning. Before doing so he consulted his brother-in-law Harbans Lal Talwar and his own brothers. They all advised him to lodge a report. After talking to them he decided to lodge the report. He went to the shop where he met Talwar and his brothers. The doctor, Harish Chander compounder, and these persons then went to the police station and lodged the report.
( 4 ) A large number of witnesses were examined by the prosecution. The trial judge mainly relied on the evidence of the doctor and his compounder. He found them trustworthy witnesses. He based his conviction and sentence primarily on their testimony.
( 5 ) THE first and foremost question in this appeal is about the identification of the accused persons. There was no test identification parade. An identification parade was fixed for December 5, 1977 in jail. But the accused refused to participate in the identification parade on the ground that they had been shown to the witnesses before. All the accused
