Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. In Budhsen & Anr. v. State of UP., AIR (1970) SC 1321 it was held that identification parades belong to the investigation stage and generally G held with the primary object of enabling the witnesses to identify persons . concerned in the offence who were not previously known to them. The legal effect of identification parades was stated as follows : " …. that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point H A out are persons whom they recognized as having been concerned in the crime. They do not constitute substantive evidence."
12. In Tek Chand v. State, AIR (1965) Punjab 146, cited by learned counsel, a Division Bench of the Punjab High Court held that the accused B cannot compel the prosecution to hold' their identification during the investigation and there is no law or procedure under which the Magistrate could pass such an order. The Bench proceeded to hold that if such a prayer is made by the accused and the prosecution opposes the same, it exposes the witnesses of identification to a genuine criticism that they would probably not be able to identify the offenders correctly if the parade was held. The C Court held that when the request for identification parade was refused for no valid reason and the court identification was made long afterwards, the identification evidence in court could not be relied on, unless it was a corroborated.
13. In Jadunath Singh v. State of H.P., AIR (1971) SC 363 a Bench of D Three Judges of this Court held that failure to hold test identification of accused is not fatal in all cases. The Bench referred to the case law on the subject including the decision of the Madras High Court in Sangiah's case and held as follows : "It seems to us that the reason given by the public prosecutor in the report and the reason given by the Additional Directing Magistrate (Judicial) in the order directing that identification requested for be not held were not valid. The fact that the chargesheet had been received and the accused had been named by P. Ws was no justification for not !laving ordered the test identification. But on the facts of this case it is clear that PW2 at least knew the accused from before. As regards PW3 although he claims to have known the accused, it is clear that his knowledge of the accused was very scant and if it had not been for the evidence of PW2 we would not have placed reliance on the evidence of PW 3 in view of the fact that the police did not ask him to identify the appellant. It is stated in Phipson on the Law of Evidence, 9th Ed. P. 4 l 3d as follows: "In criminal cases it is improper to identify the accused only when 'in the dock : SURENDRA NARAIN@MUNNA PANDEYv.
STATE OF UP [SRINIVASAN .I.] 105 The police should place him, before hand, with the orders, and ask the A witness to pick him out. Nor should the witness be guided in any way, nor asked "is that the man" ?" We consider that the same is the law in India, if the identity is in doubt. Accordingly on the facts of this case we are of the opinion that the trial was not vitiated because the accused persons were denied identification. The same Bench dealt with the State ofU.P. v. Rajju, AIR (1971) SC 708 and held that in the absence of request from accused, State is not bound to hold C identification parade wl,en they were arrested on the spot.
14. In Go/am Majibuddin v. State of West Bengal, (1972) Cr!. L.J. 1342, another Bench of three Judges of this Court held that when the witness stated that he already knew the accused before the day of occurrence and it was not the case of the accused that he was not known to the witness previously, D test identification would serve no purpose. The same Bench had to consider a converse case in Rameshwar Singh v. State of J&K, AIR (1972) SC !02. The Bench stated the law thus : "Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a E witness is his evidence in Court but when the accused person is not previously known to the witness concerned then the identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to investigating agency an assurance that the investigation is proceeding on right line in addition to F furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the· proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of G the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct line for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after H the occurrence. It is thus and thus alone that justice and fair play can be assured both to the accused and to the prosecution. The identification during police investigation, it may be re-called, is not substantive evidence in law and it can only be used for corroborating and contradicting evidence of the witness concerned as given in Court. The identification proceeding, therefore, must be so conducted that the evidence with regard to them when given at the trial, enable the Court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in the Court of the identifying witness." C On the facts of the case, it was found that the name of the accused was not mentioned in the FIR.
This Court found the witnesses to be untruthful. This Court found that the High Court had erroneously relied upon statements recorded under Section 161 Cr. P.C. for the purpose of corroboration of certain statements made in Court. On that basis, the judgment of the High Court was D set aside and the appellant was acquitted.
15. In Dharmvir v. State of M. P., (1974] 4 SCC 150, it was held that no identification parade was called for as the victim mentioned the names of the accused in the Fl R.
16. In Mahtab Singh v. The State of M.P., [ 1975] 3 SCC 407 the Bench held that the need for identification parade arises only if the assailants are not previously known to the witnesses. It is to be noticed that it is the very same Bench which dealt with "Shri Ram's case (supra) relied on by the appellant and referred to by us in the beginning.
17. In Harbhajan Singh v. State of J. & K., AIR (l 975) SC 1814 a Bench of three Judges followed Jadunnath Singh's case (supra) and held that failure of investigating officer to hold identification parade is not necessarily fatal.
18. In Kanan v. State ofKerala, AIR(l979) SC 1127, the Court held that G where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation.
19. In Narendra Singh v. State of H.P., [ 1987] 2 SCC 236, the attack on deceased was witnessed by an uninterested and independent witness who H knew the accused already. That witness snatched from the accused the kirpan SURENDRA NARAIN@MUNNA PANDEY1·. STATE OF UP [SRINIVASAN J.] JQ7 and the turban when he escaped and deposited the same in the police station. A The FIR was lodged within 15 minutes and the accused was named therein. The Court held that the question of identification was of qo consequence.
20. In Ramesh Kumar v. State of Punjab, (1993) Crl. L.J. 1800, a Bench of two Judges held that holding of identification parade was not necessary as the murder took place in a rickshaw and the rickshaw puller stated that he B knew the accused and that conviction based primarily on his testimony was proper.
21. On a perusal of the above ruling it is clear that the failure to hold the test identification parade even after a demand by the accused is not always fatal and it is only one of the relevant factors to be taken into C consideration alongwith the other evidence on retord. If the claim of the ocular witnesses that they knew the accused already is found to be true, the failure to hold a test identification parade is inconsequential. .
22. Turning to the facts of this case, it is seen that PW I had mentioned D the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his "Sala" and PW I was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, "there is not a scintilla of evidence" that PW I had a grudge E against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother's son. The accused was not traceable from 7.4. 77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a Jong time does not appear to be bona F fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there ·is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.
23. The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs I to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted. 108.
24. The third contention is based on the statement of PW 3 in his deposition that Shri Prakash sustained injury in the back whereas the medical report showed that two gunshot wounds were in the left side chest upper part and inner to nipple. Another gunshot wound was found in the spine medical part in thoracic region. The fact that PW3 was travelling in the same rickshaw B as his master, the deceased is established beyond doubt. His clothes which got stained by the blood which oozed out of the wounds of the deceased were taken by the investigating officer. The High Court has discussed this aspect of the matter at some length and we agree with the reasoning of the High Court. As pointed out by the High Court the witness having seen the exit wound on the back of the deceased bleeding, thought that he had been C hit in the back. Hence we reject this contention.
25. The fourth contention is equally without any substance. The argument is that PW I would have in the first instance taken the victim to the hospital instead of police station and in any event would have accompanied PW 3 to the hospital. According to the learned counsel the fact that PW I D stayed in the police station to give a statement after sending PW 3 and the victim to the hospital throws considerable suspicion on his credibility. We are unable to accept this contention. The evidence shows that the victim died immediately after the firing. The witness thought fit to stay back at the police station to get his complaint registered. Here again, the reasoning of the High E Court is unassailable and we agree with the same.
26. The fifth and the last contention that there was no moti\'"e for the appellant to commit the offence is also without any merit. There is ample eviderice on record to show that there was a dispute between the appellant and the deceased which remained unsettled. The way in which the deceased F was killed shows that the appellant had the intention to commit the offence of murder and accordingly carried out the same. But it is well settled that when the fact of murder has been proved, there is no necessity to prove motive.
27. In sum, the appeal has to suffer a dismissal and is accordingly G dismissed. S.V.K.l. Appe.al dismissed.