S. Acharya, J.
1. The appellant stands convicted under Section 302, I. P.C. for having murdered one Beni Ganda with axe and has been sentenced thereunder to undergo R. I. for life.
2. The prosecution case, in short, is that Tiari Gandani. P. W. 12, and her husband P. W, 14, along with some others, had gone to the house of P. W. 12's father at Lesunbahal in connection with some marriage negotiation. In the morning of 2-3-1966 they, along with the deceased and P. Ws. 11, 15 and 16, were returning from Lesunbahal. After they had crossed village Ghodar and when P. W. 12 and the deceased were iust approaching the Nektimunda Nala. P. W. 12 saw that from the left side of the road two persons, one of whom held an axe and the other a knife, came running, and each of them picked up a stone from the road side and scolded her father deceased Beni Ganda in filthy language and were about to throw stones at him. Her father was receding back while appealing to those persons not to assault him. At that time one of the two accused persons who held an axe threw away the stone and with the axe in his hand dealt an axe blow on the head of P. W. 12's father, Beni Ganda. The other man with the knife with him stabbed Beni Ganda on his right side. On seeing this P. W. 12 shouted out that her father was being killed and called out to her maternal uncle Machhu Suna (P. W. 11) and her husband P. W. 14, who were walking ahead of them, to come running to that place. When she appealed to the assailants not to assault her father, the assailant who held the axe dealt another axe blow on the back of the neck of her father as a result of which he fell down on the ground with profusely bleeding injuries on his head and neck. The other assailant, who held the knife, dragged away P. W. 12 from that place and pushed her aside. Then the man with the axe dealt some more axe blows on her father, and the other man stabbed her father with the knife in his hand P. Ws. 11, 14 and 15, who came running to that place in response to the call and shouts of P. W. 12, were threatened by the assailants by the show of the knife and the axe and were asked not to come near the spot. On being afraid of the situation and the threatening attitude of the assailants P. Ws. 11, 14 and 15 went away from that place. The assailants then left the place. Beni Ganda instantaneously died at the spot on receiving the above mentioned blows. Thereafter P. W. 14 (the husband of P. W. 12) came there, and many others, on receiving information from P. W. 14. gradually assembled at the spot. After a while P. W. 12 along with others went to the Titilagarh police station (six miles way from the place of occurrence) and there lodged the F. I, R. Ext. 14 on the same day at 2:30 p. m. After investigation and the commitment proceeding the appellant and one Bhima Bag (since acquitted) stood their trial on a charge under Section 302/34. I. P.C. The trial court acquitted the said Bhima Bag by giving him the benefit of doubt, and convicted the appellant under Section 302, I. P.C. and sentenced him thereunder as stated above.
3. The accused persons pleaded not guilty to the charge. The appellant Sadhu Bag in his statement under Section 342. Criminal P.C. refuted all the allegations against him, and stated that this false case was foisted against him by the police as he could not pay Rupees 600/- to the police as demanded by them. With regard to the prosecution evidence that he was identified in a T. I. parade conducted by a Magistrate, he alleged that he could be so identified only because the said Magistrate pointed him out to the witnesses identifying him in the said parade.
4. The doctor P. W. 2 who held the post mortem examination on the dead body of Beni Ganda on 3-3-1966 at 12 O'clock found the following external injuries on his person:
(1) One incised wound at the level of the second and third cervical vertebrae dividing the neck which is attached to the body only by a tag of skin of the front and left side of the neck.
(2) One incised wound 2 1/4'x2/3' gaping x bone deep lying almost vertically in the left side of the forehead and frontal region of the skull beginning from the point 1' above the left eye brow.
(3) One incised wound 2' x 1/2' x 1/2' deep lying yertically in the right supra scapular region of the back.
(4) One incised wound l 1/2'xj'x1/2' deep lying vertically on the left side of the back in the 8th inter-costal space one and half inch from the mid-line.
(5) One incised wound 1' x 1/2' x 1/2' lying in the right 8th inter-costal space in the back one inch away from the mid-line.
(6) One penetrating wound 1 1/4'x3/4' x 3 1/2' deep obliquely in the right loin.
(7) One penetrating wound l 1/4'x3/4' entering into the abdominal cavity in the right iliac phosa and through this wound a portion of the omentum and mesentery of the small intestine have come out.
(8) One incised wound 3' x 1/2' x 1/2' deep lying vertically in the outer aspect of the lower third of the left thigh 3' above the knee joint.
P. W. 2 speaks only about the following internal injuries.
(1) All the important structures of the neck including the spinal cord have been fully divided at the level of the 2nd and 3rd cervical vertebrae. The neck is attached to the trunk only by a tag of skin of the left and front side of the neck.
(2) There is extra vession of large amount of blood in the subcutaneous tissue of the right loin.
(3) About one ounce of blood was deposited in the right iliac phosa of the abdomen which has trickled inside from the external injury.
5. It is evident from the above that the doctor did not dissect all the different parts of the dead body having the other external injuries. He has opined that all the injuries found by him were ante mortem in nature; external injuries 1 to 4 and 8 could have been caused by the axe sent to him and external injuries 5 to 7 could have been caused by the knife sent to him; injury No. 1 could be possible by one or more strokes; and that on receiving the above-mentioned injuries the deceased might have died instantaneously. In cross-examination he has further stated, and it is also quite obvious, that external injury No. 1, by which the head was almost severed from the body, was alone sufficient to cause instantaneous death. Probably because of the nature of this injury and the obvious conclusions following therefrom, the doctor did not proceed to examine the internal consequences of the other external injuries. He proved his post mortem report Ext. 3.
6. On a perusal of the evidence of P. W. 2 and his post mortem report Ext, 3 we are convinced that the death of the deceased was homicidal.
7. P. W. 12 saw the entire occurrence from the beginning to the end, and P. Ws. 11. 14, 15 and 16 saw the occurrence in parts. Mr. Ray, the learned Counsel for the appellant, apart from questioning the prosecution evidence relating to the identification of the appellant, which I will advert to later, did not contest any other aspects of the eye witness version of the occurrence as testified to by the abovementioned P. Ws. On a perusal of their evidence and that of the doctor P. W. 2 we are satisfied that it is proyed beyond reasonable doubt that two assailants dealt several blows on the deceased, one with an axe and the other with a knife, as a result of which he sustained the several bleeding injuries on his person found by the doctor and died instantaneously at the spot. The court below, on a consideration and discussion of the evidence of identification together with other relevant evidence supporting the same, has arrived at the unequivocal finding that it was the appellant who with an axe dealt the fatal blow on the neck of the deceased. Of the several injuries on the deceased caused by an axe, the ante mortem external injury No. 1 on the neck, as stated above was alone sufficient to cause his instantaneous death. On the above findings the court below has arrived at the conclusion that the appellant is guilty of the offence of murder.
8. Mr. Ray. as stated above, without assailing any other finding, challenged only the finding of the court below relating to the identification of the appellant. In that connection he urged that the T. I. parade was not conducted in the proper, legal and desired manner as both the suspects were put up for identification in one T. I. parade and they were mixed only with 13 others, thus contravening the provisions of Rule 236 (a) of Chapter XI of the Orissa Police Manual. The portion of this rule relevant to the above contention is: 'On arrival the suspect shall be mixed up with eight or ten men of similar dress, age, religion and social status'. Mr. Rav has not been able to show that non-observance of the provisions of the aforesaid rule would amount to an illegality, ipso facto, invalidating the parade in its entirety, rendering evidence thereof inadmissible in the case. The preface to the Orissa Police Manual shows that the rules contained therein are binding only on police officers, and serve as authoritative guidance for other officers of the Government. The above rule, therefore, is an executive instruction indicating certain desirable things to be done in holding and conducting a T. I. parade. The purpose underlying the rule of mixing a large number of persons with the suspects in a T. I. parade is to eliminate the possibilities of chance identification or identification by extraneous aid. thereby rendering evidence of identification more weighty, reliable and authentic. No hard and fast rule of law is or can be laid down as to the proportion in which others have to be mixed with the suspects, but at the same time care must be taken to mix as large number of other persons as possible in order to obviate to the maximum extent the above unwanted and undesirable possibilities which nullify the very purpose for which such a parade is conducted.
9. The provision in Rule 236 (a) of mixing 8 to 10 persons with each suspect is wholesome and desirable, but it cannot be said that it is such an imperative rule that merely on slight deviation from the same the parade is vitiated, or on that account alone evidence thereof should be disregarded. The above rule as is evident therefrom makes a flexible provision for mixing 8 to 10 persons with each suspect, and it does not state that in no case two or more suspects can be put together for identification in one parade.
10. Mr. Ray in support of his above-mentioned contention cited the decision in Asharfi v. State : AIR1961All153 wherein their Lordships, while laying down various desirable things in connection with an identification parade, have accepted with approval the observations made by Desai. J. in the case reported in : AIR1953All385 to the effect that the proper way to hold identification proceedings is to put up each suspect separately for identification, mixed up with as large a number of innocent men as possible, in any case not less than 9 to 10. As each witness comes up for identification it will be seen whether he identifies the suspect or not. In Asharfi's case : AIR1961All153 their Lordships were dealing with two identification parades in one two suspects were mixed with 20 under-trial prisoners and in the other 4 suspects were mixed up with 40 under-trial prisoners. Their Lordships deprecated the practice of putting up several suspects together in one parade consequently making the parade large and unwieldy, thereby causing confusion for even a most honest witness. In expressing approval for the above and some other views of Desai. J. in : AIR1953All385 , their Lordships have stated that if the procedure mentioned therein is adopted the proceedings will be made as simple as possible, no complication of innocent men being picked up in the parade would arise, an honest witness will have every chance of displaying his integrity, and artificial means of judging veracity will be avoided to a large extent. Saying so they hoped that the U.P. Government would incorporate the said procedure as a rule in its standing instructions. All that has been stated in the above decision in connection with an identification parade is salutary and wholesome requiring utmost care and efforts for the observance of the same.
11. Their Lordships, after laying down the above and certain other desirable things in connection with identification parades. ultimately accepted and acted upon the evidence of the two above-mentioned parades of the nature and character stated above.
12. In the present case the T. I. parade was conducted by P. W. 3, a Magistrate, First Class, inside the Titlagarh Jail on 16-3-1966 at 3.30 p.m. P. W. 3 has testified to the fact that in that parade, held inside the jail, the two suspects were mixed up with 13 under-trial prisoners of the same stature, complexion, height, physique and dress. Accordingly the witnesses were required to identify the two suspects from amongst the 15 such persons in that parade. All of them were wearing Dhotis and none of them had any other clothings on his body. The 5 witnesses who came to identify the suspects were kept outside the jail and they were called inside the jail one after another to identify the suspects. The position of the suspects in the parade was changed for each witness. Apart from P. W. 3, only two clerks of the said jail were present inside the jail during the T. I. parade and no police officer was present anywhere near that place or near about the witnesses outside the iail. P. Ws, 11, 12. 14, 15 and 16, the five witnesses who came to identify the suspects have testified to the fact that they had no prior acccuaintance with the two assailants and that they for the first time saw them during the said occurrence. The testimony of P. W. 12 to the above effect gets corroboration from her similar statements in the F.I.R.
13. Mr, Ray questioned the credibility of the evidence of P. W. 3 on the ground that though in cross-examination he stated that it was not possible for him to state all details about the T. I. Parade without reference to the case record, in his examination-in-chief he stated various details about the same even though there was no mention of these facts in his report, Ext. 5, drawn up in that connection. There is no substance in the above contention. On reading his entire evidence it is quite clear that all that he meant by stating as above in his cross-examination is that it was not possible for him to state all the minute details relating to the T, I. parade, such as the names of the witnesses, the names of the suspects, the actual number of persons mixed up in the T. I, parade, the names of other persons present at that place and other such details which one cannot possibly remember without reference to the relevant reports and connected case records. It is always possible for a man of average intelligence and P. W. 3 can reasonably be expected to be one such person, to remember the place where he conducted a T. I. parade the place where the witnesses for identification were waiting and such other, important features and details about the parade. Merely because in his examination-in-chief he mentioned about some such important details which do not find place in his report Ext. 5, it cannot be said that this witness, a Magistrate of the First Class, falsely stated those things from his imagination though they were not within his knowledge, and thus violated the solemn oath taken by him in the witness box. There is nothing on record on which any such adverse inference can be drawn against P. W. 3, a responsible public servant of the class and category on which the society and the law of the land repose confidence. On the above considerations we do not find any substance in the above contention.
14. On a perusal of the evidence of P. W. 3 and that of the identifying witnesses we are satisfied that the appellant was properly identified in the T. I. parade without any mistake. Nothing convincing could be shown on which it can be said that the identifying witnesses had a prior opportunity of seeing the appellant anywhere after the occurrence or that they were tutored by somebody or had access to extraneous aid, which en-abled them to identify the appellant in the said parade. The appellant's allegation that the witnesses identified him in the parade on being pointed out by the Magistrate is entirely baseless and unworthy of credence. The very fact that four of the witnesses could not identify another suspect mixed up in the parade renders improbable the possibility of tutoring. In court also the appellant was identified by all the eye witnesses as the person who assaulted the deceased with an axe.
15. On a careful perusal of the evidence of the Magistrate, P. W. 3, and that of the eye witnesses identifying the appellant in the parade we are convinced that the T. I. parade was conducted in a fair and proper manner and all the witnesses correctly identified the appellant in that parade without any fumbling or bungling. On all the above considerations we do not find any merit in the above contentions raised by Mr. Ray in this connection.
16. Apart from the above evidence of identification, some of the eye witnesses have also deposed that at the time of the occurrence the appellant had a silken napkin around his waist. A silken napkin, M.O. VIII, was seized from a paddy field at a close distance from the place where the deadbody was lying. The chemical examiner's report, Ext. 24, and the Serologist's report, Ext. 25, shows that the silken napkin. M.O. VIII. had stains of human blood. Of course nobody has identified the seized napkin. M. O, VIII, as belonging to the appellant.
17. All the eye witnesses have consistently stated that it was the appellant who dealt blows on the deceased with an axe. An axe, M.O. VI, was seized from the aforesaid paddy field from where M.O. VIII was seized. This axe. on chemical examination and serological test was found to have stains of human blood. The seizure of M.O. VI and M.O. VIII with stains of human blood from a place not far from the deadbody in the context of the evidence mentioned above is also of some significance.
18. It is also in evidence that the appellant, who was serving as a gardener in the P. W. D. Inspection Bungalow at Rayagada, was on casual leave for three days from 2-3-1966 to 4-3-1966 (occurrence on 2-3-1966) and there is no evidence to the contrary to show that during the said period he stayed back at Rayagada and did not avail of the said leave granted to him. This is again another circumstance which lends support to the prosecution case.
19. As stated above Mr. Ray did not assail the findings of the court below on any other ground except the finding relating to the identification of the appellant discussed above. We have gone through the evidence on record, and we are thoroughly satisfied that the finding of the court below that it is the appellant who with an axe dealt several blows on the deceased and particularly the fatal axe blow on his neck, as a result of which he instantaneously died at the spot, is perfectly justified and correct. We are satisfied that the charge of under against the appellant has been proved beyond all reasonable doubt and so his conviction under Section 302. I, P. C and sentence passed thereunder are perfectly justified and are hereby upheld,
20. There is no merit in this appeal and the same is dismissed.
S.K. Ray, J.
21. I agree that this appeal should be dismissed. But I would like to add a few words as to the law of identification and the reasons why I am of the opinion that the evidence of identification led in Court shall be acted upon in this case.
22. Identification of accused in a test identification parade held before a Magistrate in course of police investigation is a relevant fact, but such evidence is not substantive evidence in the sense that that is not evidence led in Court in course of trial. It is pertinent to quote a passage on this aspect of the law from a decision of the Supreme Court in the case of Budhsen v. State of U.P. : 1970CriLJ1149 . The passage runs thus:
The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation, stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Criminal P.C.
To take the evidence of prior test identification in a parade from out of the prohibited ambit of Section 162, Criminal P.C. it is held by a Magistrate.
23. In this case, P. Ws. 11, 12, 14 and 15 have identified the appellant as the accused who was holding an axe and dealt the deceased blows with it. As the evidence stands, P. W. 12 was in close proximity of this appellant while he was killing her father with the axe, and had. therefore, opportunity to observe the physiognomy of the appellant more closely than other witnesses. P. Ws. 11, 14 and 15 also came near the place of murder and had been threatened away by the accused. These witnesses in fact asked the accused not to assault the deceased and were threatened in return. Thus, they came face to face with the accused persons. It was broad daylight and so their chances of identification were good. It will be further seen that these witnesses identified the appellant in the prior test identification parade held on 2-3-1966. Thereafter, they again identified them in Court about two years later. Identification in Court related not only to the identification of the accused as the assailant, but also to the details of the part the accused played in the crime and the weapon used by him, at the time of commission of murder. There was a long lapse of time of about two years between the time of test identification parade held on 2-3-1966 or the identification made in committing court on 23-1-1966 and the court identification held in January, 1968. and yet the witnesses correctly identified the appellant with reference to the part played by him and the weapon used by him at the time of murder. This is a circumstance reinforcing the trustworthiness of the testimony of these witnesses, viz., P. Ws. U, 12. 14 and 15, relating to identification. The further corroboration of the identification evidence is afforded by the fact that the appellant who was granted casual leave from 3-6-1966 to 4-6-1966 gave a false denial when questioned about his whereabouts during that period. The fact that he was granted casual leave for those days is a fact within the special knowledge of the accused and his false reply, therefore, impliedly strengthens the identification evidence. Even without the aforesaid corroborative circumstances, the testimony of P. W. 12, in particular, could be safely relied upon in regard to the identification of the appellant and his part played in the occurrence.