Case Note & Summary
The Supreme Court of India heard an appeal by special leave against the judgment of the Allahabad High Court which had confirmed the conviction of the two appellants by the Sessions Judge, Mainpuri, under Section 302 read with Section 34 of the Indian Penal Code for the murder of Ram Swarup Pandey. The first appellant was sentenced to death and the second to life imprisonment. The prosecution alleged that on February 26, 1968, at about 7:30 a.m., the appellants, in furtherance of common intention, attacked the deceased with a chhuri and a knife near the house of Kotwal Singh on the Grand Trunk road in Bewar town, causing 34 injuries, and he died on the spot. The First Information Report was lodged at 8 a.m. the same day, naming both accused but without parentage. The accused surrendered on March 12, 1968, and applied for test identification on March 25, 1968, claiming that the eyewitnesses other than Prem Narain were strangers. The Additional District Magistrate (Judicial) rejected the application on April 20, 1968, on the ground that the charge sheet had already been received and the accused were named by witnesses. The Sessions Judge also rejected the request as not bona fide. The trial court convicted the appellants relying on the testimony of Prem Narain (PW1), who was injured in the incident, and two independent eyewitnesses, Mahesh Chandra (PW2) and Dwarka Prasad (PW3). The appellants raised two principal contentions before the Supreme Court: first, that the denial of a test identification parade vitiated the trial; second, that the medical evidence regarding the empty stomach and half-full intestines conflicted with the prosecution case that the murder occurred at 7:30 a.m. They also argued that the number and nature of injuries belied the prosecution story and that the application to the Superintendent of Police was a peshbandi. The Supreme Court, applying the principle laid down in Perkash Chand Sogani v. State of Rajasthan, held that absence of test identification is not fatal if the accused is well-known by sight, and if there is any doubt, the prosecution should hold an identification parade especially if the accused says that the alleged eyewitnesses did not know him previously. It noted that there is no express provision in the Code of Criminal Procedure enabling an accused to insist on an identification parade, but if an application is turned down and it transpires during trial that the witnesses did not know the accused previously, the prosecution runs the risk of losing the case on that point. On the facts, the Court found that Mahesh Chandra's claim of knowing the accused for about four years was not challenged in cross-examination, and while Dwarka Prasad's knowledge was scant, the trial was not vitiated. The Court also considered the medical evidence and held that the doctor's explanation reconciled the empty stomach with the prosecution case, as the stomach could be empty by 2 or 2:30 a.m. after a meal at 8 p.m. Consequently, the Supreme Court dismissed the appeal and upheld the conviction and sentences.
Headnote
A) Criminal Law - Test Identification Parade - Evidentiary Value and Necessity - Evidence Act, 1872, Section 9 - The accused were convicted under Section 302/34 of the Indian Penal Code for murder based on eyewitness testimony; they requested a test identification parade claiming some witnesses did not know them, but the Magistrate and Sessions Judge refused. The Supreme Court held that absence of test identification is not fatal if the accused is well-known by sight, and if there is doubt the prosecution should hold a parade, but on facts the trial was not vitiated because one eyewitness's claim of four years' acquaintance was unchallenged and the applications were found not bona fide. Held that denial of test identification did not vitiate the trial, though the Magistrate's reason for refusal was wrong (Pages 924 G-925 C; 925 G-926 C). B) Criminal Law - Medical Evidence and Time of Assault - Consistency with Prosecution Case - Indian Penal Code, 1860, Sections 302/34 - The appellants contended that the empty stomach and half-full intestines indicated that the murder occurred between 3 and 4 a.m. rather than at 7:30 a.m. as alleged; the doctor in cross-examination explained that after a meal at 8 p.m. the stomach could be empty by 2-2:30 a.m. and the intestines could remain half full. The Supreme Court did not find any material conflict and upheld the conviction (Pages 920-921).
Issue of Consideration
Whether denial of test identification parade vitiated the trial; whether medical evidence conflicted with prosecution case about time of assault.
Final Decision
Appeal dismissed; conviction and sentences upheld. Jadunath Singh's death sentence and Girand Singh's life imprisonment confirmed.
Law Points
- Absence of test identification is not fatal if accused known by sight
- prosecution should hold identification parade if doubt about identity
- no express provision for accused to insist on identification parade
- if application wrongly refused and witnesses do not know accused prosecution risks losing case
- test identification parade under Section 9 Evidence Act 1872
