Criminal Trial – Identification – Reliance of – Identification of accused by a solitary witness – Test Identification Parade – Evidentiary value of – When accused known to prosecution witnesses – Course to be adopted by court – Discussed.
Identification of Accused
AIR 2002 SC 3325 : 2002 Supp (2) SCR 363 : (2002) 7 SCC 295 : 2002 (6) SCALE 447 : JT 2002 (7) SC 68 : 2002 ALL MR (Cri) 2548 : 2002 (4) RCR (Criminal) 314 : 2002 (4) Crimes 307 : 2002 (4) AICLR 1010 : 2002 SCC (Cri) 1698 : 2002 (Supp) ACrC 298 : 2002 (3) BLJR 2372 : 2002 AIR Jhar R. 1147 : AIR 2002 SCW 3867 : 2003 (1) RajCriC 25 : 2003 (1) Cri.CC 706 : 2002 (2) Andh LD (Criminal) 729 : 2003 (1) Cal. H.C.N. 66 : 2002 (3) ECrC 261 : 2002 (2) W.L.C. 664 : 2002 ALL MR (Cri) 2548 : 2002 (6) Supreme 508 : 2002 (4) PLJR 129 : ILR 2002 Kar. 5025 : 2002 (3) JLJR 208
IN THE SUPREME COURT OF INDIA
UMESH C. BANERJEE & B.N. AGRAWAL JJ.
Appeal (crl.) 1156-57 of 2001
DANA YADAV @ DAHU & ORS. Vs. STATE OF BIHAR
B.N. AGRAWAL, J.
The appellants along with accused Rajendra Yadav and Madan Dusadh were convicted by the trial court under Sections 302/149 of the Penal Code and sentenced to undergo imprisonment for life. They were further convicted under Sections 307/149 and 436 of the Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and seven years respectively.The sentences were, however, directed to run concurrently. The other five accused were acquitted by the trial court. On appeals being preferred, convictions and sentences of the appellants have been upheld by the High Court whereas accused Rajendra Yadav and Madan Dusadh have been acquitted.
The prosecution case, in short, is that the informant Shambhu Prasad Komal (PW.14), who was worker of Revolutionary Group of Forward Bloc, along with his companions was undertaking a padyatra from 22nd April, 1983 to 27th April, 1983 which was led by their leader Balmukund Rahi. In the evening of 25th April, 1983 they held a meeting at Guraru and after the same was over PW-14 along with 150 workers went to Village Karma for night halt where they stayed in the house of one Ramratan Yadav (PW.12) and after taking dinner when some of them were sitting inside the Baithaka and Ors. outside, at about 9-9.15 P.M., they heard slogans coming from towards South of the village. In the meantime, nearly 150-200 members of Naxalite group came, surrounded the house of PW-12, amongst whom accused Dara Singh @ Kamdeo Yadav and appellant Bindeshwar Yadav were carrying guns and pointing towards the prosecution party saying “be careful and raise your hands” whereupon out of fear some of the members of the prosecution party went inside the house and closed the door from within. Thereafter, they heard sounds of bullet firing and bomb explosion and the house in which they were hiding themselves was set on fire. When the members of the prosecution party found that they were exposed to the risk of being roasted alive as a result of fire, they came out of the house and at that point of time the accused persons surrounded them and took them to the south-eastem direction where they were forced to sit. Out of the members of the prosecution party, Balmukund Rahi, Chandradeo Yadav and Ganesh Yadav (PW.l) were taken to eastern direction by the appellants Bindeshwar Yadav and Bhuvneshwar Bind besides accused Dara Singh, Madan Dusadh, Dhudheshwar Dusadh and Gupta Yadav. Out of them appellants Bindeshwar Yadav and Bhuvneshwar Bind apart from accused Dara Singh and Dhudheshwar Dusadh were said to have cut throats of Balmukund Rahi and Chandradeo Yadav with pasuli whereas PW-1 was inflicted injuries on the head by phrasa but he managed to escape. Appellants Dana, Rambilas, Doman and Ramchandra along with eight other named accused persons and several other unknown were alleged to have surrounded other members of the prosecution party and assaulted Bal Govind (PW.8), Chandrika (PW.4) and Ramratan Yadav (PW.12) who received injuries. Thereafter the accused persons took to their heels. Motive for the occurrence disclosed was that members of the prosecution party had undertaken padyatra against terror spread by the naxalites. Stating the aforesaid facts, fardbayan of the informant (PW-14) was recorded by the Sub-Inspector of Police on the same day at 11 P.M. in the village on the basis of which formal first Information report was drawn up against 14 named accused persons, including the appellants, excepting Deo Nandan, and the police, after registering the case, took up investigation, during the course of which appellant Deo Nandan was also made accused in the case and on completion thereof, submitted charge sheet, on receipt whereof the learned Magistrate took cognizance and committed 14 accused persons, including the appellants, to the Court of Sessions to face trial.
Defence of the accused persons, including the appellants, was that they were innocent and had no complicity with the crime, but were falsely implicated.
During trial, the prosecution examined 15 witnesses in all and several documents were exhibited whereas defence failed to adduce any evidence. Upon the completion of trial, the learned Additional Sessions Judge convicted the accused persons, as stated above, and the High Court upheld the convictions and sentences of the seven accused and acquitted two of them, as mentioned above. Hence these appeals by special leave. Out of seven appellants, name of appellant no. 5 Bhuvneshwar Bind was deleted, as such we are required to consider in these appeals cases of six appellants.
Shri Prabha Shankar Mishra, learned Senior Counsel appearing on behalf of the appellants in support of the appeals raised several points. It has been submitted that Deo Nandan (appellant No. 3) was not named in the first information report and neither known to the informant nor to any of the prosecution witnesses and although no test identification parade was held, he was identified in court for the first time, as such no reliance should have been placed upon such an identification more so when there was no exceptional circumstance to place reliance upon his identification for the first time made in Court without the same being corroborated by previous identification in the test identification parade or any other evidence. Section 9 of the Evidence Act deals with relevancy of facts necessary to explain or introduce relevant facts. U says, inter alia, facts which establish the identity of any thing or person whose identity is relevant, in so far as they are necessary for the purpose, are .relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by a witness in court. This Court has dealt with this question on several occasions. In the case of