G.D. Sahgal, J.
1. Ali Jan and Mahadeo, residents of village Birampur, Police Station Mitauli in the district of Kheri who were tried along with eight other persons have both been convicted for offences under Sections 399 & 402 of the Indian Penal Code and S. 25(1)(a) of the Arms Act, the other co-accused being acquitted. For the offence under Section 399 they have each been sentenced to seven years' rigorous imprisonment for the offence under Section 402 to five years' rigorous imprisonment and for the offence under Section 25(1)(a) of the Arms Act to 2 years' rigorous imprisonment, the sentences being ordered to run concurrently.
2. The prosecution case is that on the 13th of April, 1964 at about 6.45 P. M. Sub-Inspector V. D. Yadav (P. W. 15), Station Officer in charge Police Station Mitauli, received information from an informant that a dacoity was going to be committed at the house of one Paragi Gadaria in village Bojhia and that a gang of dacoits would collect for the purpose in the grove of one Chela Raidas in village Ghuraipurwa. Sub-Inspector Yadav made an entry as to it in the general diary. Soon after he deputed two Constables Shambhu Dayal and Nizamuddin to go to village Bojhia as a precautionary measure to guard the house of Paragi Gadaria and the village in general with muskets and twenty rounds each Both these facts have been mentioned in the general diary an extract from which has been filed in the case.
At 7.15 P. M. Sub-Inspector Yadav picked up a party consisting of Sub-Inspector K. B Upreti, Second Officer, Clerk Constable Pratap Narain and six other Constables equipping them with sufficient arms and ammunition and took them along with him towards village Madaijurwa where they arrived at about 8 P. M. There six persons were taken from the public. The party thus swelled to 15. They proceeded to Ghuraipurwa arriving there at about 9 P. M. In that village twelve more witnesses were collected from the public out of whom Chaudhari Lal Raidas was holder of a gun licence while the others had in this with them. Eleven of them had torches. Each and every one of the police party had a torch with him. At the house of Babu Raidas in Ghuraipurwa the party of 27 was split up into three, of nine persons each. Party No. 1 was under the charge of Sub-Inspector Yadav himself, party No. 2 was put under the charge of Clerk Constable Pratap Narain and party No. 3 was under the charge of Sub-Inspector Upreti. He gave them instructions to quietly wait on the spot and to make a charge on his flashing his torch.
They proceeded to the grove of Cheta Haidas and after inspecting the locality Sub-Inspector Yadav stationed his party towards the west, party No. 2 towards the south and party No 3 towards the east in khains behind the cover of Patawar He found a heap of straw collected to the north-west of the grove He instructed Ram Naresh Constable to set fire to it on his flashing his torch The parties took their positions at about half past 10 in the night and waited for the arrival of the dacoits from the north. The dacoits start ed coming in after they had waited for about an hour and a half. About 12 or 13 of them collected in the grove and started talking amongst themselves. They were talking, according to the prosecution case, with regard to their scheme or plan of committing dacoily at the house of Paragi Gadaria. It seemed as if they were waiting for the arrival of a few of their companions when some of them ex-pressed an apprehension that it was getting late, that they were already equipped with six arms and that they had to return to their respective places in the dark hour of the night.
It was, therefore, decided to make a move on the expectation that their companions might join them on the way. These talks confirmed the belief of Sub Inspector Yadav that it was the gang of the dacoits regarding which the informer had given him information the previous evening When Sub-Inspector Yadav found that they were about to move he gave a signal by flashing his torch. Constable Ram Naresh set fire to the heap of straw and the members of all the three parties almost simultaneously charged the dacoits flashing their torches at them. The dacoits got dazzled. One of them even fired a shot at party No. 1 which returned the fire. The dacoits then took to their heels but they were chased and two of them, viz the appellants were apprehended in the field of one Cheta Raidas. Sub-Inspector Upreti and Constable Gajraj arrested Ali Jan while Mahadeo was arrested by constables Ram Naresh. Sri Krishna and Pratap Narain.
As a result of the search of Ali Jan were recovered a countrymade S. B. B. L. gun with a live cartridge in its barrel and a bag containing six live cartridges besides a two cell torch in working order. From the possession of Mahadeo were recovered another S. B. B. L. gun with a live cartridge in its barrel, a bag containing five cartridges, a three cell torch in working order, a bundle of bid is and a match box These things were duly packed and sealed. A sample of ashes of straw was also recovered and sealed. They were then brought to the Police Station where a first information report was lodged at 4.30 A. M. A case was then registered as a result of this report. The investigation was taken over by Sub-Inspector Yadav himself. The other co-accused of the appellants were arrested from time to time and ultimately all ten of them including the two appellants were put up for trial.
3. We are not concerned with the other eight co-accused of the appellants and we need not deal with their cases.
4. Ali Jan and Mahadeo denied their complicity in the crime altogether. They pleaded that they had been falsely implicated on account of enmity with the police Ali Jan and Mahadeo made applications on the 23rd of June. 1964 being Exs. Kha-6 and Kha-9 that they be put up for identification by the witnesses but an order was passed by the Judicial Magistrate (Kha-8) rejecting their application. The learned Magistrate stated in his order that they had allegedly been arrested at the spot. Charge-sheet had already been submitted against them and that being no stage after submission of the charge sheet in Court for holding test identification, the application was rejected Apart from denying their complicity the appellants disputed the occurrence itself. They also claimed that they had been apprehended at their respective houses in village Birampur and had not been arrested at the spot.
5. The prosecution case, however found favour with the trial Court so far as the appellants are concerned and they have been convicted for the various offences as already indicated above though their co-accused were all acquitted. We have, therefore, to examine how far, if it all. has any case been made out against any of the appellants.
6. The direct evidence in the case relating to the occurrence consists of the statements of Chaudhari Lal. Nokhev. Kirpali, P. Ws. 1 to 3, Champa, Chaudhari. Constable Ram Naresh Singh P. Ws 5 to 7. Sub-Inspector Upreti, Constable Sri Krishna. Constable Swaroop Singh. P Ws 10 to 12 and Sub-Inspector Yadav himself P. W. 15 They have supported the prosecution version of the occurrence Out of the six witnesses collected from Madaripur it has been pointed out two viz. Champa P. W 5 and Chaudhari P. W 6 were witnesses of a case of dacoity committed at the house of one Swami Dayal which was pending in April 1964 when this occurrence took place Sub Inspector Yadav has even made a recommendation for the giving of a gun licence to the sons of Chaudhari and Champa P W 5 and also to Chaudhari Lal P W 1 Chaudhari Lal has also obtained a licence during the period of his posting at the police station though he had applied for it earlier This circumstance will not detract from the value of the testimony of these witnesses, for a Sub-Inspector is bound on such occasions to take along with him per sons whom he considers to be absolutely reliable and these persons were taken by him be cause he found them to be so reliable There is no reason why their presence in the raiding party be not believed. They might have been witnesses in another dacoity case also relating to village. But if a dacoity did take place in the village it will not he unnatural for them to be witnesses in that case. Champa and Chaudhari were even previous convicts but I fail to understand why reliance should be placed on this circumstance to condemn their testimony.
7. It was further pointed out that none of the twelve witnesses from village Ghuraipurwa was produced as a prosecution witness. Each one of them has filed an application with an affidavit in the Court of the Sessions Judge indicating that he was not a member of the raiding party, that he bad nothing to do with it and that he was being forced to depose in the case by the police. This is a circumstance in favour of the appellants but it is only one of the circumstances in favour of the appeallants It does not necessarily lead to the conclusion that the other witnesses should be disbelieved None of these twelve witnesses has been produced in the witness-box and simply because each one of them gave an application of the kind regarding which on account of their being not produced in Court they could not be cross-examined, the circumstance though it may be relevant cannot by itself be taken to discredit the testimony of other witnesses also who were examined.
8. The evidence produced in the case consisting of P. Ws 1 to 3, 5 to 7, 10 to 12 and 15 above referred to establishes the prosecution story about the raid, supported as it is by the various entries in the general diary regarding the information received, the arranging of two Constables for being sent to the village of the apprehended dacoity and the taking of the party by Sub-Inspector Yadav along with him There is also an entry in the general diary about the return of the party to the police station and there is also a first information report recorded at the earliest opportunity.
9. The question, however, is whether the appellants have been rightly convicted as being members of the party of persons who collected at the grove. They deny that they were at all arrested on the spot. Their case is that they were arrested from their houses.
10. When the prosecution witnesses were examined against them in Court Chaudhari P. W 6 picked up Piarey, a co-accused, instead of Mahadeo in the Committing Magistrate's Court and Somwari instead of Ali Jan. Champa P W 5 made mistake in picking up Ali Jan in the Committing Magistrate's Court and Mahadeo in the Court of the Sessions Judge This means that the statements of Chaudhari and Champa so far as the complicity of the appellant is concerned, cannot be depended upon but on that ground the evidence of other witnesses cannot be discarded for the impressions in the mind of Chaudhari and Champa might have got obliterated during the interval.
11. So far, therefore, there is not much against the prosecution evidence which may lead one to the conclusion that it was not reliable and that Ali Jan and Mahadeo were not among the persons who collected in the grove.
11a. Ali Jan and Mahadeo produced evidence in defence also consisting of the statements of Ilahi Bakhsh and Mahmood, D. Ws. 1 and 2 respectively Ilahi Bakhsh staled that they were not arrested in his presence by any Sub-Inspector in the village but Mahmood contradicted him by saving that Ilahi Bakhsh and others were present at the time these persons were arrested The learned Sessions Judge, therefore, was right in rejecting the testimony of these defence witnesses.
12. Still we have to examine whether there is any material on record which would make it doubtful if Ali Jan and Mahadeo were present among the persons who collected in the grove at all Great reliance has been placed on the circumstance of their not being put up for identification even though they requested from jail that they should be so put up, to disprove the claim of the prosecution that they were arrested on the spot. The question is whether in view of their application for identification being rejected are they entitled to an acquittal and to a finding that they were not among the persons who collected at the grove and that they were never arrested at the spot as stated by the prosecution or whether this circumstance introduces an element of doubt in their participation in the crime.
13. The appellants were not put up for identification because they were claimed to have been apprehended on the spot. It is to be remembered that in convicting an accused person the Courts are to be guided by the sworn testimony that is given in Court. Reliance is placed on identification proceedings only by way of contradiction or corroboration of the evidence in Court and no more as has been remarked in Nagina v. Emperor, AIR 1921 All 215 reproduced at page 390 in the case of Satya Narain v. The State. : AIR1953All385 that identification proceedings held in jail
'amount to this, namely that certain persons are brought to the jail or 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 a particular crime.'
'These statements are of course not made on oath and again, they are made in the course of extra judicial proceedings. The law does not allow statements of this kind to be made available as evidence at the trial unless and until the persons who made those statements are called as witnesses When these persons are called as witnesses then these previous statements become admissible, not as substantive evidence in the case, but merely as evidence to corroborate or contradict the statements made by these witnesses in Court (Sections 155 and 157, Evidence Act) If when a witness to identify is called in the Sessions Court and states there that he can identify no one there is obviously nothing to corroborate and so the evidence of the previous statement, express or implied, made in the course of the identification proceedings in the jail is not admissible '
A party has no right to claim identification. Identification proceedings are held only during the course of investigation for the investigating agency to satisfy itself as to whether a particular witness had at all seen the suspects put up for identification before him and whether he will be in a position to support the prosecution case against the suspect in Court The real evidence is the evidence of the witness in Court when he states whether or not a particular person was seen by him at the time of commission of the crime.
14. Let us examine the authorities on the point as to what is the effect of a person not being put up for identification after he claims to be put up for identification on the ground that the persons who may be produced to identify him had never seen him or that if they claim to have known him they do not know him at all.
15. The earliest authority that was cited is that of Sajjan Singh v. Emperor AIR 1945 Lah 48 In that case the witnesses claimed to have known the accused but the accused denied this Before being set up for trial he applied to have the veracity of these witnesses tested by means of an identification parade It was reported to the Court by the prosecution opposing the application that the statementsof these witnesses showed that they knew the accused from before and that the application had been made only for the purpose of delay. The application was rejected. The application was made more than a week before the proceedings came up for trial so that it could have been possible to arrange for a parade which would not involve any delay The reason given for refusing identification was in the circumstances held to he not sound. In such circumstances even if the denial of the accused was false no harm was done and the value of the evidence given by the witnesses could be increased When the request of the accused for holding an identification parade is refused, an acquittal is not an unlikely event should any serious question of identity arise during the course of the trial for the witnesses' claim to identify the accused will remain subject to a doubt which might easilv have been removed if their ability had been put to the test before the trial.
It is too late to do anything after the trial has begun, for by that time the witnesses will have become accustomed to the appearance of authority for the proposition that ordinarily an application for holding an identification in cases the accused in Court. This ruling is only an where the witnesses claim to have known the accused hut the accused denies that they know him at all and asserts that they will not be able to identify him should not ordinarily be refused. It is not laid down therein that it is the right of any party to claim identification when the prosecution themselves have not held by identification during investigation.
16. The next case is of our own High Court, State v. Ghulam Mohiuddin : AIR1951All475 Here it was laid down that there was no provision of law under which an accused can ask the Court or the Court can direct the prosecution to first arrange for an identification parade before recording evidence of the prosecution witnesses, when, at the commencement of or during the course of the trial, the accused informs the Court that the prosecution witness had never seen him committing the crime and he was not even known to him, the Court may in its discretion, satisfy itself by asking the accused to stand among other persons present in Court and then call upon the witnesses, who appear before the Court to identify the accused and make a note of the result on the record but the accused has no 'right' which he can claim or exercise at any stage of the trial.
17. The main object of holding an identification parade, it was remarked, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. In such cases as a rule the investigating officer submits a report to the proper authority for the holding of an identification parade: and if the investigating officer omits to do so, the accused may, if so advised, point out the omission but he has no right to demand that anidentification parade must be held. The omission will certainly entitle the accused to challenge the veracity of the witnesses on that ground at the trial.
It is further remarked that in cases where a Magistrate takes cognizance of an offence upon a police report or upon a private complaint, the accused may inform the Court that he is not known to the prosecution witnesses, and even suggest that the prosecution witnesses, may arrange for a parade for his identification; but he cannot ask the Court to direct the prosecution to arrange for such a parade; obviously because there is no provision of law under which the Court can issue any such direction The accused has no right to ask the Court to direct the prosecution to take steps for identification of the accused by the prosecution witnesses before they are examined in Court but he has certainly a right to cross-examine and challenge the veracity of the witnesses in the manner provided by law and further to contend that no reliance should be placed upon the witnesses who were not called upon to identify him at proper time Two things, it was pointed out, should be kept separate and distinct. The matter was further clarified at page 440 when it was remarked:
'The main object of holding an identification parade, during the investigation stage, is --to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. The identification proceedings being in the nature of tests, no provision is to be found in the Code or even in the Evidence Act, The proceedings are record of facts 'which establish the identity of anything or person' and which may be relevant under Section 9 of the Act. The facts arc to be proved according to law; and in the absence of such proof the Identification proceedings are valueless. The facts if proved can be used both for purposes of corroboration as well as for contradiction But. this does not mean that the accused acquires any 'right' to ask the court to direct the prosecution to hold an identification parade, so that some facts may come on record and he may be able to use them for the purpose of contradicting the prosecution witnesses when they are examined in Court.'
The following remarks of Rajamannar, J. in In re. Sangiah. AIR 1948 Mud 113 were approved:
'An identification parade belongs to the stage of investigation by the police The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by the witnesses in Court, The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court. If a witness has not identified the accused at a parade or otherwise during the investigation the fact may be reliedon by the accused, but I find nothing in the provisions of the Code which confers a right on the accused to demand that the investigation should be conducted in a particular way.'
18. We next come to another case of our Court, viz. Shakoor v. State, 1955 All WR (HC) 55. In that case the case of : AIR1951All475 (supra) was distinguished and the case of Sajjan Singh, AIR 1945 Lab 48 was followed. It was pointed out therein that Ghulam Mohiuddin's case : AIR1951All475 at the most lays down that an accused person who has been named by the prosecution witnesses has got no right to claim his identification proceedings on the ground that the witnesses who had named him did not know him but there was nothing in the Criminal Procedure Code which lays down that the prosecution alone has got an exclusive right to hold the identification proceedings, and that the accused has got no right to apply for the same Identification proceedings are held by the prosecution in order to verify the claim made by the prosecution witnesses that they can identify the accused, in other words, to test the veracity of their statements. The accused therefore, could claim identification proceedings if he says that the prosecution witnesses who had named him did not know him at all and would not be able to identify him. This was one of the surest methods in which he could satisfy the Court that the prosecution witnesses who alleged that they knew him and named him did not actually know him and therefore their statement was not correct. It was pointed out that after the case had already begun and the accused had appeared in Court such identification would be of no avail. If an identification is to be held, it is to be held before the accused has appeared in Court and the prosecution witnesses who named him had an opportunity of seeing him. Even if an accused person has got no right to claim identification he has certainly got a right to make a request to the Court that his identification proceedings may be held and there is nothing in the Criminal Procedure Code which deprives the Court of its power to order the identification proceedings of the accused if it thinks that it is necessary in the interests of justice to do so.
19. In Lajja Ram v. The State : AIR1955All671 the three cases, viz. Sajjan Singh's case, AIR 1945 Lah 48 the case of Ghulam Mohiu-ddin. : AIR1951All475 and that of Shakoor. 1955 All WR (HC) 55 were all considered and it was pointed out that there was no doubt that the holding of an identification parade is a procedure not prescribed by any law but one which can be usefully adopted at the investigation stage, before the accused has become a cynosure of witnesses, to test the veracity of eye-witnesses who profess either to have known the accused or to have identified an accused not already known. As to Ghulam Mohiuddin's case. : AIR1951All475 it was pointed out that what was laid down therein was that althoughthe accused may have no right to claim identi-fication, if the prosecution turns down his request for identification, it runs the risk of the veracity of the eve-witnesses being challenged on that ground The Bench then consider-ed a number of circumstances that appeared in the case including the circumstance of the element of doubt attaching to the testimony of the witnesses by reason of the omission of the identification test.
20. The following propositions, therefore, emerge clear from the state of law above referred to:
(1) In identification parade is held during investigation only at the instance of the investigating agency to satisfy itself whether a particular suspect participated in the crime or not by putting him up before the witnesses who claim to have been present at the time the crime was committed.
(2) By itself it is no piece of evidence. It may be used for the purpose of corroborating an eye witness when he states on oath that he had seen a particular accused at the time of the commission of the crime.
(3) It may also be used to contradict an eve-witness if he points to an accused in Court as having participated in the crime in case he has failed to identify him at the parade
(4) It is not the right of an accused to claim identification and duty of the Court to hold an identification parade if the same is claimed before the Court begins to record the prosecution evidence
(5) The accused, however, has got a right to bring it to the notice of the prosecution through Court that he would challenge his identification by witnesses who claim to have known him or to have seen him at the time of commission of the offence or in whose presence he might have been arrested while alleged to be committing the crime. In such a case the prosecution should generally get an identification parade held.
(6) If the prosecution does not agree to get such a parade held then though the accused cannot claim that it be held as of right and the evidence before the court would be the statements of witnesses who point out to the accused as having participated in the crime or to have been arrested before them in the course of commission of the crime, the accused can use the circumstance of the prosecution falling shy of holding identification proceeding, as a circumstance in his favour.
21. In the instant case the appellants are claimed by the prosecution to have been arrested at the time of the committing of the offence Some of the eye-witnesses leaving out those about whom mention has already been made did point out in Court when the evidence was recorded, that the appellants were arrested on the spot in the circumstances alleged by the prosecution. The circumstance that the accused claimed that the witnesses could not identify them and as such they should be put up for identification before themwhich opportunity was denied to them, dots help the accused as creating doubt about the veracity of those witnesses but that alone is not sufficient to hold that the witnesses are liars and that they should not be believed.
We have an additional circumstance in this case, viz., the twelve witnesses belonging to village Ghuraipurwa were not produced at all and each one of them made an application before the Sessions Judge along with an affidavit that he has not a member of the raiding party that he had seen nothing and that he was being forced by the police to depose in the case. Taking the totality of these circum-stances I am of the opinion that benefit of doubt, in any case should be given to the two appellants and they should be acquitted.
22. The appeal is accordingly allowed and the conviction of and the sentence passed against the appellants set aside. The appellants are in jail They shall be set at liberty forthwith unless required in connection with any other offence.