Budhsen vs State Of U.

P on 6 May, 1970

ACT:

Evidence Act of 1872, s.9 - Identification

parades – Manner of holding - Weight to be
attached - Constitution of India, 1950, Art.
136 - Evidentiary value attached to
identification parades erroneous - Interference
by Supreme Court.

HEADNOTE:

The two appellants B and N, along with two

others who were acquitted by the High Court,
were charged with the offence of murder by
shooting the deceased, committed on September
12, 1967. The evidence against them mainly
consisted of six witnesses who had identified
them at test parades. The High Court rejected
the evidence of three of them and relied upon
the evidence of the remaining three. Two of them
claimed to be present at the time of the
occurrence and the third came on the scene after
hearing pistol shots and the alarm raised by
others. The appellants were strangers to all the
witnesses. One of the eye witnesses (P.W. 1)
gave the first information to the police, but
there was no description of the assailants in
it. The P.S.J. recording the report also did not
question the informant for the purpose of
securing more information about the description
of the assailants in order to be able to take
measures to discover and arrest them.

P.W.1 identified the appellants at two

identification parades conducted by a
Magistrate. The identification parade in respect
of N was held on October 21, 1967 and in respect
of B on October 28, 1967. In the form relating
to the identification parade, there is a
footnote stating that it is very useful to note
whether the witness knew the name of the person
he had come to identify or only described him
and that the witness should not be asked in a
general way to identify whomsoever he knew.
The Magistrate gave evidence that he had asked
witnesses who had come to identify the accused
(named) as to what he had seen the accused doing
and recorded whatever the witness told him.
Whatever the first witness had told him was
recorded word for word and since the other
witness had repeated the same thing he noted
down against their names the words as above.

The identification memorandum as regards the

other accused, prepared by the Magistrate at the
time of his identification parade, was similar.
There was also unexplained error as to the date
on which appellant B was admitted into the jail.
In both identification memos there were no
remarks by the Magistrate in respect of the steps
taken by the jail authorities to ensure proper
conduct of proceedings. The eye witnesses also
did not specify in court the accused who had
actually fired the pistol.

The second eye witness admitted in cross-

examination that he had gone to the jail for
identification on three occasions and that on
two occasions be had identified the accused but
on the third occasion he did not identify any.
He was unable to state as to which accused he
identified in the first and which in the second
parade.

The third witness deposed that he had identified

the accused who had a jhola in his hand (he was
alleged by the three witnesses to have taken a
pistol from the Jhola) at one identification
parade and the other accused at the second
identification parade.

On the question whether the conviction could be

sustained on this evidence :-
HELD : Facts which establish the identity of
an accused person are relevant under s.9 of the
Evidence Act. The substantive evidence of
identification is the statement of the witness
in court. But the evidence of identification at
the trial for the first time is from its very
nature weak.
A prior test identification, therefore serves to
corroborate the evidence in court. The purpose
of identification parades which belong to the
investigation stage is to enable the witnesses
to identify persons concerned in the offence,
who are not previously known to them, and
thereby to satisfy the investigating officers of
their bona fides by pointing out the persons
they recognise as having taken part in the
crime. These parades, thus furnish evidence
which corroborates the testimony of the
identifying witnesses in court. These parades do
not constitute substantive evidence. Keeping in
view the purpose of identification parades, the
precautions to eliminate suspicion of unfairness
and to reduce chances of testimonial error. They
must take intelligent interest in the
proceedings bearing in mind two considerations :
(i) that the life and liberty of an accused may
depend on their vigilance and caution, and (ii)
that justice should be done in the
identification.

Generally, the Magistrates must make a note of

every objection raised by an accused at the time
of identification and the steps taken by them
to ensure fairness to the accused, so that the
court which is to judge the value of the
identification evidence may take them into
consideration in the appreciation of that
evidence. The persons required to identify an
accused should have had no opportunity of seeing
him after the commission of crime and before
identification and secondly that they should
make no mistakes or the mistakes made are
negligible. The identification to be of value
should also be held without much delay. The
number of persons mixed up with the accused
should be reasonably large and their bearing and
general appearance not glaringly distinct.

In the present case the evidence shows that the

Magistrate paid scant attention to the direction
in the identification memos. The memos do not
show that the parades were held by the
Magistrate with the degree of vigilance, care
and anxiety their importance demanded, and
they were filled up in a very casual manner.
They could only have a somewhat fleeting glimpse
of the assailants. The prosecution has also not
explained why the second eye witness had to go
to the jail for identification a third time.
The two eye witnesses did not state in evidence
what particular part the two appellants played
in the occurrence. The third witness who come on
the scene on hearing the alarm could only have
had a still more fleeting glimpse.

The statements of the three witnesses were also

otherwise unimpressive and coupled with the fact
that there was a possibility of their having
seen at least one of the accused (appellant B)
outside jail gates a week before the
identification parades were held, the test
identification parades could not be considered
to provide safe and trustworthy evidence on
which the appellants' conviction could be
sustained.

The entire case depended on identification of

the appellants and the identification was
founded solely on test identification parades.
The High Court did not correctly appreciate the
evidentiary value of the parades and proceeded
on the erroneous assumption that it is
substantive evidence and that on the basis of
that evidence alone the conviction could be
sustained. The High Court also ignored important
evidence on the record in regard to the
manner in which test identification parades
were held and the connected circumstances
suggesting that they were held more or less in a
mechanical way without the necessary precautions
being taken to eliminate unfairness. This is an
erroneous way of dealing with test
identification parades and since it has caused
failure of justice, this Court is justified in
interfering under Art. 136 .
JUDGMENT:

CRIMINAL APPELLATE JURISDICTION :

These two appeals by special leave arise out of a joint trial of the present
appellants and Jagdish and Sugriv. All the four accused were convicted
by the trial court; the present appellants were sentenced to death under S.
302 read with s. 34 I.P.C. and Jagdish and Sugriv to life imprisonment
under S. 302 read with s. 109, I.P.C. They challenged their conviction by
separate appeals to the Allahabad High Court. By means of a common
judgment the High Court dismissed the appeal of the present appellants
and allowed that of their co-accused Jagdish and Sugriv. The sentence
of death imposed on the present appellants under s. 302, I.P.C. for the
murder of Lala Hazarilal was confirmed.

According to the prosecution story Jagdish and Sugriv related to each

other as cousins belonged to village Bidrika. They used to harass the
poor inhabitants of that village whereas deceased Hazarilal used to
espouse their cause. As a result, there was not much love lost between
Jagdish and Sugriv on the one side and Hazarilal on the other.

The trial court came to the conclusion that Jagdish and Sugriv had
abetted the murder of Hazarilal, and appellants Naubat and Budhsen had
committed the murder. Naubat and Budhsen were, therefore, sentenced
to death and Jagdish and Sugriv to life imprisonment.

The existence of inimical relations between Jagdish and Sugriv on one

side and Hazarilal on the other was not considered to be a sufficiently
strong circumstance
Now, facts which establish the identity of an accused person are relevant
under S. 9 of the Indian Evidence Act. As a general rule, the substantive
evidence of a witness is a statement made in court. The evidence of mere
identification of the accused person at the trial for the first time is from
its very nature inherently of a weak character. The evidence in order to
carry conviction should ordinarily clarify as to how and under what
circumstances he came to pick out the particular accused person and the
details of the part which the accused played in the crime in question with
reasonable particularity. The purpose of a prior test identification,
therefore, seems to be to test and strengthen the trustworthiness of that
evidence. It is accordingly, considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of witnesses in
court as to the identity of the accused who are strangers to them, in the
form of earlier identification proceeding. There may, however, be
exceptions to this general rule, when, for example, the court is impressed
by a particular witness, on whose testimony it can safely rely, without
such or other corroboration. The identification parades belong to the
investigation stage. They are generally held during the course of
investigation with the primary object of enabling the witnesses to
identify persons concerned in the offence, who were not previously
known to them. This serves to satisfy the investigating officers of the
bona fides of the prosecution witnesses and also to furnish evidence to
corroborate their testimony in court. Identification proceedings in their
legal effect amount simply to this: that certain persons are brought to jail
or some other place and make statements either express or implied that
certain individuals whom they point out are persons whom they
recognise as having been concerned in the crime. They do not constitute
substantive evidence. These parades are essentially governed by s. 162,
Cr. P.C. It is for this reason that the identification parades in this case
seem to have been held under the supervision of a Magistrate. Keeping
in view the purpose of identification parades the Magistrates holding
them are expected to take all possible precautions to eliminate any
suspicion of unfairness and to reduce the chance of testimonial error.
They must, therefore, take intelligent interest in the proceedings, bearing
in mind two considerations :

Shri O. P. Rana on behalf of the State very strongly argued that

under Art. 136 of the Constitution this Court does not interfere with the
conclusions of facts arrived at on appreciation of evidence and in this
case on consideration of the evidence relating to the test identification
parades two courts below have come to a positive conclusion that the
appellants were two out of the four unknown assailants of Hazarilal,
deceased. This Court, so argued the counsel, should affirm that
conclusion in the absence of any proved legal infirmity. In regard to the
sentence the counsel contended that this is a matter which rests in the
discretion of the trial court and when the sentence of death is confirmed
by the High Court this Court should not interfere on appeal under Art.
136.

It is undoubtedly true that under Art. 136 this Court does not ordinarily
interfere with conclusions of fact properly arrived at by the High Court
on appreciation of evidence on the record except where there is legal
error or some disregard of the forms of legal process or a violation of the
principles of natural justice resulting in grave or substantial injustice. In
Tej Narain v. The Stale of U.P. (1) this Court, after examining its
previous decisions in which this Court had not accepted concurrent
findings or had re-examined the evidence for itself, said "The above
cases show that this Court has not accepted concurrent findings of fact if
there is no evidence for the finding or if there has been an omission to
notice material points while appreciating evidence or to bear in mind
relevant considerations which swing the balance in favour of the accused.
It has also on occasions reexamined the evidence in view of the fact that the case
against the accused was based on circumstantial evidence and it was of an
extraordinary nature. In the case before us, as we will show presently, the High
Court appears to have completely overlooked the variation in certain important
aspects by P.W. 3, while deposing at the trial from what he had stated earlier and
consequently the High Court could not apply its mind to their significance. In view
of this infirmity in the judgment and other considerations which will be pointed out
later we are satisfied that this is one of the exceptional cases in which we should
undertake the examination of the entire evidence and appraise it."

Before us the entire case depends on the identification of the appellants and this
identification is founded solely on test identification parades. The High Court does
not seem to have correctly appreciated the evidentiary value of these parades
though they were considered to be the primary evidence in support of the
prosecution case. It seems to have proceeded on the erroneous legal assumption
that it is a substantive piece of evidence and that on the basis of that evidence alone
the conviction can be sustained. And then that court also ignored important
evidence on the record in regard to the manner in which the test identification
parades were held, and other connected circumstances suggesting that they were
held more or less in a mechanical way without the necessary precautions being
taken to eliminate unfairness. This is clearly an erroneous way of dealing with the
test identification parades and has caused failure of justice.

In our opinion, though this factor is relevant it cannot serve as a substitute for
reliable admissible evidence required to establish the guilt of the accused beyond
reasonable doubt. The evidence in regard to identification having been discarded
by us as legally infirm and which does not connect the appellants with the alleged
offence it cannot by itself sustain the conviction of the appellants. These appeals
are allowed and the accused acquitted.

Y.P. Appeals allowed..