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TMI Blog1987 (11) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... thi (PW 4); his father Mathura Yadav and his brother Rajdeo. That day Gangaram Yadav and one Sunder were sleeping in the Bythak of the house, while Mathura Yadav and Kamla were sleeping in another portion of the house. Gangaram's wife and daughters were asleep in an adjacent new construction put up by PW 1. Rajdeo was also sleeping there. 4. A lantern was lit in the Bythak. At the site of the pump house on a side of the house, a 100 Watts electric bulb was burning. 5. At 1.30 A.M. the household was rudely woken-up by the barking of dogs and the dacoits aimed with weapons, including fire arms, raided the house, in the course of which, apart from the looting of property, both the brothers Gangaram Yadav and Rajdeo were seriously injured. Both the brothers succumbed to the injuries soon thereafter. In response to the commotion and the alarm raised by the household a number of villagers including Sanktha is stated to have assembled at the spot with torches and lathis. They challenged the dacoits, who hastened away with the loot under cover of gun-fire, injuring, Sanktha. 6. The F.I.R. (Exhibit 1) was lodged at the Station House at Jalalpur at 3.45 p.m. that day. The identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2 and 4 had known appellants Rajnath, Chabbinath, Ram Lachman and their omission to mention them in the F.I.R. stultifies the prosecution and, secondly, whether even on the view that there was no such prior familiarity-or more appropriately because of it-the evidence of identification pursuant to a test identification conducted after a lapse of nearly four months after arrest, inspires confidence. 12. To probablise their prior acquaintance with the eye witnesses, appellants relied not only upon what, according to them, would be a reasonable inference from the very circumstance of the parties being residents of villages in close vicinity of each other; but also on the circumstance that PW 1 himself was a contemporary of three of the appellants at 'Kutir Inter College'. PW 1 admits that he studied at that institution; but pleaded ignorance whether appellants Rajnath, Chabbinath and Ram Lachman were his contemporaries at that college. The answers of PW 1 to the relevant questions in cross-examination are these: ...There is a Kutir Inter College, Chakke in the Khalispur village. This college is situated in Village Chakke.... I have studied in Kutir Inter College for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this kind where the eye witnesses, on their own admission, did not know the appellants before the occurrence, their identification of the accused persons for the time in the dock after a long lapse of time would have been improper. In Helsbury's Law of England (IV Edn. Volume II, para 363) this passage occurs and is worth re-calling: It is undesirable that witnesses should be asked to identify a defendant for the first time in the dock at his trial; and as a general practice it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out. 16. In such cases, it is needless to say, the test identification at an identification parade to test the power of recollection of the witnesses assumes added significance. Prosecution has, therefore, relied upon the result of the test identification (Exhibit 30) where the appellants were picked out by P.W. 1, P.W. 2, and P.W. 4. 17. The conduct of an identification parade belongs to the realm, and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act. But the value of the 1 test identifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n can much better distinguish those of his own age and condition than those of different ages and condition. Uniform is a cause of fallacious resemblance, above all for those who do not wear it. (emphasis supplied) 20. The evidence of identification merely corroborates and strengthens the oral testimony in Court which alone in the primary and substantive evidence as to identity. In Hasib v. State of Bihar this Court observed: ...The purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding.... 21. In Rameshwar Singh v. State of J and K 1972 AIR SC 102 this Court observed: ...It may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We, therefore, allow the appeal and acquit the appellant. 26. The benefit of this regrettable and wholly unexplained lack of promptitude in holding the test identification, we are construed to say, enures to the appellants The evidence of test identification lacks the requisite element of re-assurance to support the conviction. A reasonable doubt arises. 27. Accordingly, these appeals are allowed, the conviction and sentence of the appellants in S.T. 168 of 1974 on the file of the First Additional Sessions Judge, Jaunpur, and affirmed in the Criminal appeal No. 14 of 1979 on the file of the Allahabad High Court are set aside and the appellants are directed to be set at liberty forthwith. The conviction and sentence of the non-appealing accused, namely, Pheku Singh cannot also be sustained consistent with the findings in and the result of these appeals as the findings are inter-dependant and inextricably integrated. The conviction and sentence of Pheku Singh are also set aside and the said Pheku Singh, the accused No. 3 in S.T. No. 168 of 1974 is also directed to beset at li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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