Brij Narain, J.C.
1. This is an appeal under Section 417, Criminal P. C., read with Section 20, Manipur State Courts Act, 1947, on behalf of the State of Manipur against an order of acquittal passed by Sri N, D. Singh, E. A. C., in G. R. Case No. 395 of 1953 on 27-5-1955, The respondents were challaned under Sections 148, 326, 353 and 342, I. P. C., by Bishenpur Police for committing riot with deadly weapons at about 2-10 p.m. on 20-6-1953 in Hidelkom fishery when Head constable Joykumar Singh (P. W. 18) had gone to the spot taking with him Madhob Singh, constable No. 32 and Achou Singh, constable No. 170 after receiving report from Yanglem Koireng Singh of Yumnam Khunou praying for prevention of a breach of the peace as Yumnam Dhananjoy Singh, as leader of his 80 associates, had threatened Y. Koireng Singh and 11 others with death if they intended to carry on paddy cultivation in the aforesaid fishery even though they had been permitted by the Chief Commissioner and the Deputy Commissioner to do so.
When Joykumar Singh, Head constable along with other two constables reached the spot he found some members of the party of Y. Koireng Singh on the spot and just after their arrival these constables noticed that 70 to 80 villagers of Yumnam Khunou reached there from different directions and they were armed with daos, spears and sticks.
According to the prosecution, these people were in an aggressive mood and in spite of the efforts of the constables to prevent the breach of the peace they started attacking the Head constable Joykumar Singh and constable Madhob Singh and some people of the party of Y. Koireng Singh. The assailants shouted 'kill the police, kill the police'. The Head Constable Joykumar Singh and constable Madhob Singh, managed to escape but constable Achou Singh was alleged to have been arrested and detained by the assailants.
2. The respondents denied the charges and they examined 7 witnesses in defence; while the prosecution examined as many as 18 witnesses in this case. The learned Magistrate acquitted the respondents on the ground that the First Information Report lodged in this case was found to be false by the evidence of constable Achou Singh and as there were no proper identification proceedings in the case, there was legally no sufficient evidence against any of the respondents.
3. I have been taken through the evidence on the record at the time of the hearing of arguments by the learned Counsel for the parties and I think, the learned Magistrate was not justified in acquitting the respondents simply because there were two minor discrepancies in the statements of the witnesses when their versions were compared with the First Information Report,
The mere fact that there was an O. C. in charge, Bishenpur Police Station on 20-6-1953, will not go to effectively rebut the statement of Head constable Joykumar Singh that he was incharge when Y. Koireng Singh lodged his report. It is possible that the O. C. might have gone out at that time and H. C. Joykumar Singh was looking after the work. It has not been made clear in the evidence from Head Constable Joykumar Singh that O. C. was actually present at the place where the report of Y. Koireng Singh was written out.
Similarly, the fact that two Sub-inspectors worked in the Bishenpur Police Station during those days will not be of any material consequence.
4. The other portion on which reliance has been placed by the learned Magistrate in this connection is that according to the Head Constable Joykumar Singh when he reached the spot about 60 men led by the accused were standing near, Yumnam Khunou village, but in the First Information Report, it was mentioned that 70 -80 villagers of Yumnam Khunou came armed with weapons from different directions.
The discrepancy, if at all, is but natural as sufficient time has elapsed between the occurrence and the date of giving deposition. Again, the statement shows that some 60 persons led by the accused who are 16 in number were on the spot and so the number would come to about 76 and it would be well between 70 and 80. The mere fact that some of the assailants and the accused reached the spot from different directions and some were standing from before would also not falsify the P, I. B. in any manner.
5. The last part of the First Information Report has been condemned by the learned Magistrate on the ground that it was mentioned that Achou Singh constable was arrested and confined by the accused but Achou Singh (P. W. 17) merely stated that he was left behind and he stayed at a house for sometime and then ran away. I do not think, this discrepancy also to be sufficient to rebut the prosecution version as Head Constable Joykumar Singh at the time of his return must have noticed that Achou Singh was not with his party and so he must have believed that he was detained by the accused.
It is established in this case by convincing medical evidence that seven people received injuries & they were medically examined by the C. M. O. Ngangon Lafoi Singh received as many as six injuries out of which one was grievous, while the others, received multiple injuries : vide injury reports dated 21-6-1953. No explanation was offered on behalf of the accused, as to how these injuries were caused.
In my opinion, the learned Magistrate failed to appreciate the prosecution evidence in its correct perspective and the charge sheet which was drawn up by him was also defective inasmuch as he framed charges against two accused only by name and all the other accused were included on the omnibus word ''others',
6. It was really very unfortunate in this case that Sri K. Lamphel Singh, who conducted the identification proceedings completely failed to discharge his duties in this respect.
Instead of holding the identification parade in Jail he held the parade in this case in an open place in the premises of the Land Revenue Office, Imphal. He failed to notice that the identification becomes absolutely worthless if there is a possibility of identifying witnesses having seen the features of the accused before the parade, vide, Sahai Singh v. Emperor 41 Ind Cas 820 : AIR 1917 Lah 311 (A). He should have prepared a detailed identification memo containing full particulars of the proceeding, but identification memo prepared by him does not show that the parade was held according to law and according to the established procedure.
Ten under-trials are to be mixed when one suspect only is supposed to be involved in the crime, but if there are more suspects at least five under-trials should be mixed per suspect. In this case only 45 other persons were mixed with 43 suspects and the identification parade was held in an open place with the result that the witnesses had ample opportunity of noting the features of the particular accused whom they wanted to identify.
The identification memo prepared by the Magistrate does not further show that the accused were given any opportunity of getting their objections recorded. It also does not show that the witnesses who came to identify the suspects in ease were ever asked to give description previous to Identification of the suspects recognised by them on the spot, vide Mahni v. Emperor AIR 1925 Lah 137(2)(B).
7. The Magistrate should at the time of conducting the identification parade -
(a) make a list of outsiders mixed with the accused for the purpose of identification with their names and addresses;
(b) should note in what connection the witness identifies him,
(c) if a wrong person is identified, it should be noted,
(d) any complaint or objection made by the accused at the time of identification parade should invariably be noted, vide Bhagat Ram v. Emperor AIR 1934 Lah 641 (O) and Emperor v. Debi Charan AIR 1942 All 339(D).
8. The value of Identification depends on two important factors, namely that the persons who identify an accused have had no opportunity of seeing him after the commission of the crime in question with which the suspect is put up for Identification and secondly that no mistakes have been made by the witnesses or the mistakes made by them are negligible, vide Emperor v. Chhadammi Lal AIR 1936 All 373(E), State v. Wahid Bux : AIR1953All314 and Satya Narain v. The State : AIR1953All385 .
9. Identity of accused person is of no evidentiary value unless corroborated by the witness having pointed him out in an identification parade with precautions taken against collusion, inadvertent mistake and intentional or accidental prompting, The elaborate rules on the conduct of identification parade are not merely mechanical devices, but are calculated to guarantee against the wrong men being pointed out.
The impression that witness who has seen the offender at the time of the crime, and who apparently has no personal motive to make any intentional mistake should be implicitly believed when he points out the accused in the dock, is most unsafe vide Sahdeo Shyam v. State of Vindhya Pradesh AIR 1954 Vindh-P. 6(H).
10. The learned Magistrate, who conducted the identification parade in this case ignored, all these principles with, the result that the present respondents wore identified by some witnesses presumably after seeing the accused before the identification parade and such an identification is legally valueless and no Court can act on such identification. It is the duty of the investigating Officer at the time of arresting the accused about whom identification proceedings are likely to be held subsequently, to inform the suspect about it and to cover his face.
The investigating Officer should instruct the constable escorting such suspects to the Habal (havalat) or jail to keep the face of the suspects covered so that he might not be seen by the witnesses on the way. Similarly, on every occasion when the suspect is taken out of Jail for the purpose of recording confession, etc., similar care should be taken and the evidence of the care having been taken should be produced before the Court at the time of the trial.
It is the duty of the prosecution to establish beyond any doubt that the witnesses, who identified the accused before the identification parade had seen him at the time of occurrence and they did not know him from before, also they did not see him at any time after the occurrence and be-fore the identification parade. If this is not done. the accused would be entitled to contend that his case has been gravely prejudiced and he would be entitled to the benefit of all or any of shortcomings of the prosecution on this score,
11. After taking into consideration the defects in the identification proceedings in this case, I think, the charges against the respondents under Sections 138, 326 and 353, I. P. C. cannot be deemed to have been established and. so the present Government Appeal is hereby dismissed.