1. After stating fads, and discussing the evidence concerning five of the appellants, his Lordship proceeded as follows:---] There remain now the cases of nine other accused appellants with which we feel ourselves unable to deal at the present moment for reasons which we are now about to give.
2. It has been stated that certain identification proceedings were held in the Jail at Meerut on the 12th of March 1921 and further proceedings were held in the case of Khushya, accused, on the 26th of March 1921.
3. When this case came up for trial in the Sessions Court in the middle of July it turned out that a large number of witnesses who had made identifications in the Jail were utterly unable to repeat these identifications in Court. It appears from the statements made by these witnesses that' they were completely baffled in the Sessions Court by the changes wrought in the appearance of the accused. The witnesses pointed out that the accused's heads and faces had been shaved or that their hair had been cropped in such a way as to render identification impossible. Chajju Singh, the principal witness, expressed his inability to identify a number of the accused, in somewhat picturesque language. He said that the Sarkar had turned out these people for trial dressed like wedding guests (barati).
4. On this part of the case we wish to observe that if the statements of these witnesses about the shaving of the heads and faces of these accused are true, there has been a very gross breach of the Jail Regulations.
5. In Paragraph 870 of the Jail Manual it is distinctly laid down that undertrial prisoners ought not to be allowed to crop their hair or in any way to alter their appearance so as to make it difficult to recognise them.
6. We regard this as a serious matter and we think it our duty in delivering this judgment to recommend to the Local Govevnment that an investigation into this affair should be made through the head of the Jail department. We need hardly say that practices of this kind if tolerated are calculated to lead to very grave miscarriage of justice.
7. The learned Sessions Judge no doubt felt the difficulty which was caused by the failure of these witnesses to identify the accused in Court. He has in his judgment expressed an opinion regarding the evidence of identity which appears to us to involve an error of law which it is our duty to correct.
8. The learned Judge observes, ''I never attach the slightest importance to success or failure to identify in Court.'
9. If by this statement the learned Judge means that he is entitled to treat the evidence of identification in the Jail as substantial independent evidence in the trial he is grossly mistaken. Indeed there can be no doubt that he has fallen into this error for he seems to have convicted at least one of the accused on an identification made by two witnesses at the Jail, both of these witnesses having failed to identify the particular accused at the Sessions trial.
10. Identification proceedings held in the Jail seem to us to 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 recongnise as having been concerned in a particular crime.
11. 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 of the Evidence Act). If when a witness to identity 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.
12. During the argument it was brought to our notice that the record prepared by the Committing Magistrate was in Court and we were referred to it for the purpose of showing that although a number of Witnesses from these two villages of Bam and Sikka were unable to identify the accused during the Sessions trial, they had been able to identify them in the course of the proceedings held in the Magistrate's Court. Most of these witnesses were examined by the Committing Magistrate some 18 or 19 days after the date of the Jail identification.
13. We refer now to the special rule of evidence which is laid down in Section 288 of the Cr. P. C. According to that section the evidence of a witness duly taken in the presence of the accused before the Committing Magistrate may, in the discretion of the Presiding Judge, if such witness is produced and examined, be treated as evidence in the case.
14. It so happens that in the present case the learned Judge, probably under the influence of the erroneous opinion of law which he appears to entertain, did not avail himself of the discretion conferred upon him by this section. That there was a case for the exercise of his discretion seems to us to be abundantly clear. There were before him a large number of witnesses who had to admit their inability to identify certain accused in the dock because, as we have said, their appearance had been altered by shaving and cutting of the hair. Bearing in mind that these witnesses had identified a number of these accused in the Court of the Committing Magistrate some 18 or 19 days after they had identified them in the Jail and at a time when there had not been any opportunity of causing alteration in the appearance of the accused, we think' the learned Sessions Judge ought to have taken action under Section 288 of the Cr. P. C. and put in evidence the statements made by the witnesses in the Court of the Committing Magistrate.
15. Sitting here in appeal it is not competent to us to deal with these statements made in the Court of the Committing Magistrate, the simple reason being that at the present time they constitute no evidence in the case.
16. Under Section 428 of the Cr. P. C. an Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by the Court of Session.
17. We have already given reasons which, in our opinion, fully justify our calling for additional evidence in this case and we, therefore, exercise our power under the section just named and direct the learned Sessions Judge to bring upon the record the statements of the witnesses as given in the Court of the Committing Magistrate. Those statements cannot properly be brought on the record until notice is given to the accused persons concerned that it is proposed to use those statements against them, and so it will be necessary for the learned Sessions Judge to take these proceedings in the presence of the accused concerned or their Pleaders. That is provided for by Sub-section (3) Section 428.
18. We order, therefore, that the case be sent down to the Sessions Judge of Meerut with a direction to put on the record the additional evidence which we have referred to above. These proceedings will be taken in the presence of the following accused, namely, Nagina, Jagpal Singh, Raghunath Singh, Behari Singh, Khushya, Bhikhan, Nirmal, Bhondu and Chaita. The record with the additional evidence so taken must be returned to this Court on or before the 24th of October 1921. The cases of these nine accused appellants will then be taken up and disposed of.