# Rakesh (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-27
- **Case number:** Criminal Appeal No. 388 of 1984
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-in-jail-v-state-of-u-p-48788
- **Pages:** 18

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 9- Test Identification Parade-
Acquittal
of
two
co-accused
while
conviction of the appellant - Before relying
upon the evidence of identification of
suspects in the test identification parade,
the Court is required to determine as to
whether
prosecution
had
taken
all
necessary precautions to ensure that the
identity of the suspect be kept concealed
before the parade- If the prosecution has
led evidence to show that from the time of
arrest of an accused to the time of his
admission into the jail, precautions were
taken to ensure that he was not seen by
any
outsider,
and
if
the
identifying
witnesses depose that they never saw him
at any time between the crime and the
identification parade, the burden lying on
the prosecution has been discharged. It is
then for the accused to establish that he
was shown. The law does not require him
to do so affirmatively; it is sufficient in
creating a reasonable doubt in the mind of
the Court. But if he fails to raise a
reasonable doubt the law enjoins that the
prosecution evidence on the matter be
accepted.

One of the requirements for establishing a test
identification parade as valid and legal is that
the prosecution must discharge its burden that
the accused was not seen by any outsider from
the time of his admission in jail till his test
identification parade.

Indian Evidence Act, 1872- Section 9- Test
Identification Parade- Unnecessary delay
in
the
holding
of
the
test-
While
answering the question as to whether the
witness did have opportunity of seeing the
offenders, the requirement of holding test
identification
parade
at
the
earliest
opportunity
without
avoidable
and
unreasonable delay after the arrest of the
accused has been insisted by the Courts
from time to time. The idea behind such
insistence is that the witness concerned
would get fair opportunity of identifying
the suspect leaving the possibility of his
memory being faded and rule out all
chances of suspect having been seen
during the period, i.e from the date of
arrest till the date of identification- No
explanation could be offered by the
Investigating Officer nor any question was
put to him by the trial court as to why one
month was taken by the Investigating
Officer
to
conduct
test
identification
parade of the appellant Rakesh, leaving
behind the acquitted accused persons for
whom test identification parade was
conducted after two months - It is proved
that the prosecution has failed to explain
the unnecessary delay in holding the
6 All. Rakesh Vs. State of U.P.
443
identification test though the witnesses
were very much available being the police
personnel posted in the same police
station wherein first information report
was lodged.

Test Identification Parade has to be conducted
without any unnecessary delay in order to not
only rule out the possibility of any outsider
having seen the accused between the time he
was admitted in jail till his identification parade,
but also to provide the witness a fair
opportunity of identifying the accused before his
memory fades with the passage of time.

Indian Evidence Act, 1872- Section 9- Test
Identification Parade - Requirement of
corroboration- The test identification of
the accused in test identification parade is
an evidence which requires corroboration
from the testimony of the witnesses in the
Court and without corroboration, the
result of test identification parade cannot
be made sole basis of conviction - The
result of the test identification parade was
not corroborated with the evidence of
implication of the appellant Rakesh in the
Court- Only witness who allegedly had
identified appellant Rakesh in the test
identification parade also identified him in
the Court but this identification was only
by the police personnel posted in the
convoy duty on the fateful night and not
by any other witness. As it is settled that
the test identification report do not
constitute substanti

## Text

_Characters 0–39,919 of 61,455. This is a partial read: ask again with offset=39919 for what follows._

442 INDIAN LAW REPORTS ALLAHABAD SERIES
the able assistance provided by him in
hearing of the Criminal Appeal No. 210 of
1997. The said payment shall be made to
Shri Jai Raj Singh Tomar, Advocate by the
Registry of the Court within the shortest
possible time.

58. The office is directed to send back
the lower court record along with a
certified copy of this judgment for
information and necessary action.

59. The compliance report be
submitted to this Court through the
Registrar General, High Court, Allahabad.
----------
(2022)06ILR A442
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No. 388 of 1984

Rakesh ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.B. Sahai, Sri Amrish Sahai, Sri R.B. Sahai

Counsel for the Respondent:
D.G.A., A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 9- Test Identification Parade-
Acquittal
of
two
co-accused
while
conviction of the appellant - Before relying
upon the evidence of identification of
suspects in the test identification parade,
the Court is required to determine as to
whether
prosecution
had
taken
all
necessary precautions to ensure that the
identity of the suspect be kept concealed
before the parade- If the prosecution has
led evidence to show that from the time of
arrest of an accused to the time of his
admission into the jail, precautions were
taken to ensure that he was not seen by
any
outsider,
and
if
the
identifying
witnesses depose that they never saw him
at any time between the crime and the
identification parade, the burden lying on
the prosecution has been discharged. It is
then for the accused to establish that he
was shown. The law does not require him
to do so affirmatively; it is sufficient in
creating a reasonable doubt in the mind of
the Court. But if he fails to raise a
reasonable doubt the law enjoins that the
prosecution evidence on the matter be
accepted.

One of the requirements for establishing a test
identification parade as valid and legal is that
the prosecution must discharge its burden that
the accused was not seen by any outsider from
the time of his admission in jail till his test
identification parade.

Indian Evidence Act, 1872- Section 9- Test
Identification Parade- Unnecessary delay
in
the
holding
of
the
test-
While
answering the question as to whether the
witness did have opportunity of seeing the
offenders, the requirement of holding test
identification
parade
at
the
earliest
opportunity
without
avoidable
and
unreasonable delay after the arrest of the
accused has been insisted by the Courts
from time to time. The idea behind such
insistence is that the witness concerned
would get fair opportunity of identifying
the suspect leaving the possibility of his
memory being faded and rule out all
chances of suspect having been seen
during the period, i.e from the date of
arrest till the date of identification- No
explanation could be offered by the
Investigating Officer nor any question was
put to him by the trial court as to why one
month was taken by the Investigating
Officer
to
conduct
test
identification
parade of the appellant Rakesh, leaving
behind the acquitted accused persons for
whom test identification parade was
conducted after two months - It is proved
that the prosecution has failed to explain
the unnecessary delay in holding the
6 All. Rakesh Vs. State of U.P.
443
identification test though the witnesses
were very much available being the police
personnel posted in the same police
station wherein first information report
was lodged.

Test Identification Parade has to be conducted
without any unnecessary delay in order to not
only rule out the possibility of any outsider
having seen the accused between the time he
was admitted in jail till his identification parade,
but also to provide the witness a fair
opportunity of identifying the accused before his
memory fades with the passage of time.

Indian Evidence Act, 1872- Section 9- Test
Identification Parade - Requirement of
corroboration- The test identification of
the accused in test identification parade is
an evidence which requires corroboration
from the testimony of the witnesses in the
Court and without corroboration, the
result of test identification parade cannot
be made sole basis of conviction - The
result of the test identification parade was
not corroborated with the evidence of
implication of the appellant Rakesh in the
Court- Only witness who allegedly had
identified appellant Rakesh in the test
identification parade also identified him in
the Court but this identification was only
by the police personnel posted in the
convoy duty on the fateful night and not
by any other witness. As it is settled that
the test identification report do not
constitute substantive evidence and its
corroboration
from
the
surrounding
circumstance is required. In the instant
case, the circumstances discussed above,
do no corroborate the result of the test
identification parade.

Result of a Test Identification Parade is only
corroborative evidence and where the same is
not corroborated by the other evidence and
circumstances, the sole witness is a police
personnel, then conviction solely on the basis
of such test identification may not be legal
and proper. (Para 41, 42, 43, 44, 45, 47, 59,
62, 64)

Criminal Appeal allowed. (E-3)
Judgements/ Case law relied upon:-

1. Asharfi Vs State, AIR 1961 Alld 153

2. Rameshwar Singh Vs St. of J&K, (1971) 2
SCC 715

3. Ram Babu Vs St. of U.P, (2010) 5 SCC 63

4. R. Shaji Vs St. of Ker., (2013) 14 SCC 266

5. Munshi Singh Gautam & ors. Vs St. of M.P,
(2005) 9 SCC 631

6. Matru Vs. St. of U.P, (1971) 2 SCC 75

7. Santokh Singh Vs Izhar Hussain ,(1973) 2
SCC 406

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Amrish Sahai learned
Advocate for the appellant and Sri Patanjali
Mishra learned A.G.A for the State.

2. This appeal is directed against the
judgment and order dated 06.02.1984
passed by the Second Additional Sessions
Judge, Fatehpur in Sessions Trial no.145 of
1993 arising out of Case Crime no.139 of
1982 under Section 396 IPC, P.S- Malwan,
District-Fatehpur whereby sole appellant
Rakesh has been convicted for the offence
punishable under Section 396 IPC and
sentenced to undergo imprisonment for life.

3. The first report of the incident was
given in writing by P.W-1-Naresh Chandra
s/o Jagdish Chandra, a driver of the truck
no.3901 URQ. The averments in the said
report are that the first informant was driver
of the aforesaid truck and on 14.10.1982, at
about 2.00 a.m., while they were going to
Bhogaon from Varanasi, three persons
namely Suresh Chandra s/o Matadeen
(second Driver) Shyam Singh s/o Puselal
444 INDIAN LAW REPORTS ALLAHABAD SERIES
(Cleaner) and one Ram Sewak Dubey were
sitting in his truck. At about 2.00 a.m., when
they reached near the village Allipur in a
convoy, about 3 kms away from the said
village, the road was blocked by placing
branches of Babool tree across the road.
Seeing that, the first informant slowed down
his vehicle (truck) and at that time, 8-10
miscreants armed with weapons gheraoed
his vehicle pointing out Tamancha and Gun.
The miscreants started looting money and
then one of them fired which hit deceased
Ram Sewak Dubey who died in the vehicle
itself. The cleaner Shyam Singh got injuries
in his right leg. The police personnel on
convoy duty present in the vehicle behind
namely Truck no.UTM 2400 also fired. The
miscreants looted Rs.3800/- from the first
informant and the persons sitting in the
truck. It is stated in the written report that
this incident was witnessed by the drivers of
the vehicle No.UTM2400, Bhagwan Singh
s/o Bhupal Singh and Lalaram s/o Ulfat
Singh as also the driver of vehicle
no.8030HRU namely Laxman Singh s/o
Chatur Singh as well as others present on the
spot. It was stated in the written report that
they all had seen and identified the assailants
in the light of the trucks and they could
identify the miscreants if they were brought
before them. The body of the deceased Ram
Sewak and the injured Shyam Singh
(cleaner) were taken to the police station.
The Check report and the GD entry of the
report were proved by P.W-6 being in his
writing and signature as Exhibit Ka-4 and 5.
It was stated by P.W-6 that the written
report was given by the first informant
Naresh Chandra at about 2.30 a.m on
13/14.10.1982 who came along with the
driver Suresh Chandra and injured cleaner
Shyam Singh and also brought the dead
body of Ram Sewak. Two constables
Ramdeo Singh and Vinay Kumar who were
on convoy duty came along with them.

4. The G.D entry of the movement of
Constable Ramdeo Singh and Vinay Kumar
from the Police Station on 13.10.1982 at
about 9.30 p.m in Rapat no.32 was proved
by P.W-6 being in his hand writing by
bringing the original G.D and filing the
copy with his signature proved as Exhibit
Ka-3. In cross, P.W-6 stated that the
convoy used to be prepared in front of the
police station, one Constable used to make
the convoy and two Constables accompany
it. On confrontation, it was stated, in cross,
by P.W-6, that G.D entries of the duty of
the Constables, on convoy duty, was before
him and as per the GD dated 17.10.1982,
Constable Vinay Kumar was on Santri duty
from 6.00 p.m till 9.00 p.m and Constable
Ramdeo was on Convoy duty from
17.10.1982 at 19.00 hours till 18.10.1982 at
4.00 a.m. However, the movement of these
constables from the police station on the
said dates ie 17.10.1982-18.10.1982 was
not recorded in the GD.

5. The written report of the incident
reported by P.W-1 was read over to him
during his deposition before the Court, who
admitted his signature and handwriting on
the same, it was proved as Exhibit Ka-1.
After lodging of the report, blood from
inside the truck, found on the seat and near
the engine and plain soil which came there
from the foot of the people entering in the
truck found near the window of the truck,
were collected and sealed, and the recovery
memo of the same was proved as Exhibit
Ka-18. The blood stained clothes of
deceased Ram Sewak Dubey were seized
and recorded in the recovery memo Exhibit
Ka-9. The inquest was conducted on
14.10.1982, which commenced at 6.30 am
and ended at 8.30 am. The injured Shyam
Singh was sent to the Sadar hospital,
Fatehpur on 14.10.1982 for investigation of
his injuries. Two gunshot wounds with
6 All. Rakesh Vs. State of U.P.
445
blackening and tattooing were found on the
lower limb (right) of injured Shyam Singh.

6. One gun shot wound of entry on
left side of neck behind the left ear cavity
deep below occipital area with blackening
and tattooing was present on the person of
deceased Ram Sewak Dubey. One wadding
piece and 23 small pellets were recovered
from the neck muscles and two small
pellets from left lung. The post mortem
report exhibited as Exhibit Ka-7 indicates
that the death was caused due to shock and
hemorrhage as a result of fire arm injuries.

7. P.W-1, the first informant stated on
oath that on 13.10.1982 his truck no.3901
URQ was looted and at that time carrying
coal in the truck he was going to Bhogaon
from Varanasi and in the truck three
persons namely second driver Suresh
Chandra, Cleaner Shyam and one Ram
Sewak were sitting. Other trucks were also
coming behind him in the convoy and
police was accompanying them. At about
2.00 a.m., 3 kms away from Village Allipur
on GT Road, branches of wild babool were
lying on both sides of the road blocking it.
He had to slow down the truck and then 7-8
miscreants came and gheraoed the truck
from all four sides. The dacoits were
carrying weapons and they started loot.
From the right side one dacoit opened fire
which hit at the back of the head of the
deceased Ram Sewak Dubey and he fell in
the cabin below the back seat. One fire
which came from the left side hit the
cleaner Shyam Singh. The miscreants
looted Rs.3800/-.

8. In the meantime, two constables
posted on the convoy duty reached with
their truck,they fired and the miscreants ran
away with the money towards North South.
P.W-1 stated that when his truck reached
the place of the incident, the truck light was
on but when the loot was started then they
forced him to put off the light.The light of
the truck behind him were, however, 'On'.
Ramsewak Dubey died inside the truck.
The report was written and signed by him
and was lodged in P.S-Malwan at about
2.30 a.m. The report was read over to him
and he proved it as Exhibit Ka-1.

9. The injured Shyam Singh was sent
to the Sadar hospital, Fatehpur. P.W-1
stated
that
the
Investigating
Officer
interrogated him and took out the dead
body from the truck, conducted inquest and
sent it for the postmortem. He categorically
stated in chief that he did not participate in
the identification parade of the accused
persons.

10. In cross, P.W-1 stated that he did
not
mention
the
appearance
of
the
assailants in the report nor he disclosed
anything about this to the Investigating
Officer. The night of the incident was dark
and when his truck was stopped the
miscreants forced him to put off the light.
On a suggestion, he stated that when the
trucks are parked, the lights get dim. He
then stated that the trucks which were
behind him in the convoy, their headlights
were on. He could not see the miscreants
and that is why, their appearance was not
disclosed in the report nor was disclosed to
the Investigating Officer in his statement.
Lastly, P.W-1 stated that he could not get
intimation of the date of identification
parade in time and whenever it was held, he
was somewhere else on duty.

11. P.W-2 is Constable Ramdeo
Pandey C.P-324 P.S Malwan, DistrictFatehpur who on 13.10.1982 was on
convoy duty. He stated that he moved from
the police station at about 9.30 p.m on
446 INDIAN LAW REPORTS ALLAHABAD SERIES
convoy duty accompanied with Constable
Vinay Kumar. They both were sitting on
the front seat of the truck. Two-three trucks
were in front of their truck and some were
behind. At around 2.00 a.m, they reached at
the G.T. road between Village-Allipur, and
Village Saura, a road jam was created there
by the branches of Babool tree. The dacoits
were looting the truck on the front and the
head light of the truck in which they were
sitting was on. The headlights of the truck
which was looted and all other trucks in the
convoy were also on. P.W-2 stated that he
had 12 bore personal gun and his
companion was carrying official rifle. They
both challenged the dacoits and fired, who
ran towards the North and could not be
nabbed. P.W-2 stated that he had seen the
faces of the dacoits in the headlight of the
truck and identified them. They were
unknown, 8-10 in number.

12. P.W-2 further stated that he went
to
the
District
Jail-Fatehpur
in
the
identification parade and identified two
dacoits, and then stated that they were also
present in the Court. P.W-2 then went to
the place where the accused persons were
standing, touched two of them and said that
those were the persons who were identified
by him in the jail. On being asked to give
names of the dacoits, he stated that one of
them was Ram Kishun @ Kripali, and then
said that he was Ram Ashrey @ Ghonchey.
P.W-2 further stated in chief that he had
seen the said dacoits for the first time at the
place at the time of the incident and then in
jail, and that he had never seen them in
between.

13. When confronted by the accused,
in cross, about his posting, P.W-2 admitted
that two of the accused person namely Ram
Kishun and Ghonchey were residents of the
Mohalla
Lahauri
wherein
P.S-Bindki
situated. PW-2 denied the suggestion that
he knew both the above named accused
persons before the incident and that the
accused persons were caught from their
homes by the Investigating Officer and
then detained in the Police Station Malwan
for two days and, thereafter, challaned in
the case. He then narrated as to how the
identification parade was conducted in the
jail.

14. It is further stated by P.W-2, that
on the fateful day, his convoy duty was
from Malwan to Nawabag and it was his
6th round. It was further stated by P.W-2
that the truck of Naresh (P.W-1) was ahead
in the convoy, there were 15-20 trucks and
there were 10-15 trucks behind the truck
wherein he was sitting.

15. The headlights of all the trucks
which were behind were on and the truck in
which he was sitting was brought forward
and parked besides the truck which was
looted and the assailants fled away towards
the North. It was a dark night.

16. On a query, P.W-2 stated to the
Court that he gave appearance of the
miscreants in his statement on the next day
when
he
was
interrogated
by
the
Investigating Officer.

17. P.W-3 is Constable Vinay Kumar
who was also on convoy duty on the fateful
night. He narrated the incident in the same
manner as has been stated by P.W-2 Ram
Deo Pandey and stated that he was on
convoy duty along with P.W-2. P.W-3
stated that all dacoits were unknown, and
when they ran away, the witnesses reached
near the truck and saw that one person was
killed and cleaner was injured in his right
leg. The identification of the dacoits was
made in the District jail Fatehpur and he
6 All. Rakesh Vs. State of U.P.
447
had identified three of them. P.W-3 stated
that he had seen the dacoits firstly at the
spot of the incident and then during the
identification parade in jail and did not see
them in between. He also identified three
accused persons standing in the Court
stating that they were the same persons
who had been identified by him in the jail.

18. On a suggestion, P.W-3 stated that
when the accused persons were earlier
caught by the police and brought to the
police station, he was not present there. He
further stated that he heard the sounds of
two fires. On a suggestion to P.W-3 he
denied that he was posted in the police
station Bindki before the incident and
admitted that at the time of incident he was
posted in the Police Station Malwan. He
further denied the suggestion that the
accused were shown to him when they
were brought from the jail to the Court.

19. He expressed ignorance to the
suggestion that accused Rakesh was
brought without veil in the Court on the
date
of
his
appearance,
before
the
identification parade. He denied that
accused Kripali and Ghonchey were
identified by him earlier as they were
without
veil
behind
the
bar.
On
confrontation by the accused, P.W-3 stated
that he identified three accused persons
correctly and 3-4 wrongly.

20. He stated, in cross, that the
headlight of the truck at the front was on
and lights of all other trucks were also on.
He stated that the entire incident occurred
in about 2-3 minutes and as soon as they
reached and fired the assailants fled away.
They came down from their truck and
challenged the assailants and fired at them,
the assailants, however, escaped. The
suggestion that he did not see or identify
any of the assailant was denied. P.W-3 also
denied that he had seen the accused persons
before the identification parade. He said
that he identified the accused persons in jail
during the actual identification parade. The
suggestion that there was no light at the
time of the incident was denied by P.W-3.

21. P.W-4 is Constable Harnath Singh
who was posted in the Police Station
Malwan in October, 1982. He was
produced in the witness box to prove that,
two accused namely Ram Kishun @
Kripali, Gonchey were brought with their
covered faces handed over in his custody
and
Constable
Chandra
Bhan.
His
testimony is not relevant as the said two
accused persons have been acquitted by the
trial court.

22. P.W-5- Lal Singh Chandel is the
Investigating Officer, who stated that
initially the investigation was made by one
Sub-Inspector, Phool Singh Sachan. On
15.10.1982, the investigation was handed
over to him under the orders of the
Superintendent of Police. He recorded the
statement of witnesses and the police
officials posted in convoy duty on the date
of the incident.

23. On 16.10.1982, on the clue of the
informant who told that the perpetrators of
the crime was a gang of Chandrapal
Khatik, search was conducted, but no one
could be nabbed. He then stated that he
came to know that the incident was carried
out by the brother of Chandrapal Khatik
and it was verified by the statement of
other witnesses.

24. On 17.10.1982, accused Ram
Kishun @ Kripali was arrested. He brought
in the police station by covering his face.
On his interrogation he confessed the crime
448 INDIAN LAW REPORTS ALLAHABAD SERIES
and disclosed the names of other accused
persons. The accused Ram Kishun was
lodged in the lockup in the police station at
3.15 p.m and instructed to keep him under
veil. The accused Ghonchey was arrested
on 17.10.1982 at about 8.30 p.m from
another place. The said accused also
confessed the crime and disclosed the
names of his co-accused and he was lodged
in the police station covering his face. P.W5 came to know on 22.11.1982, that the
accused appellant Rakesh had surrendered
and was sent to jail under veil. The result of
the identification parade was received on
07.01.1983 and the chargesheet was
submitted against the above named three
accused persons in his handwriting and
signature which was proved as Exhibit Ka2.

25. The papers pertaining to the
deceased such as inquest, site plan and the
recovery memo were proved by P.W-5,
having been prepared in his writing and
signature. P.W-5 further stated that he
recorded statement of the first informant,
injured witness Shyam Singh and another
witness Suresh Chandra and blood found
inside the truck was seized. On a suggestion,
P.W-5 denied that the accused persons were
first identified by two constables on convoy
duty and that they were kept in the police
station with bare faces. On another question,
P.W-5 stated that he came to know that
accused Rakesh had surrendered in the Court
on 22.11.1982 through Pairokar and that the
fact that he was sent to jail under veil came to
his knowledge through papers. He denied that
accused appellant Rakesh appeared bare face
in the Court on 22.11.1982 and then he was
identified by the Constables on convoy duty.

26. P.W-7 is the Constable posted in
the Police-station Malwan and stated that
the accused Ram Kishun @ Kripali and
Ghonchey, were lodged in the lockup under
veil.

27. Before we enter into further
discussion, it may be noted that the trial
court had acquitted two accused persons
namely Ram Kishun @ Kripali and Ram
Ashrey @ Ghonchey on the ground that the
prosecution did not produce any positive
evidence that the identification of the
aforesaid two accused persons by the
witnesses
P.W-2
and
P.W-3
was
independent and that these witnesses had
no occasion to see the accused persons
namely Ram Kishun @ Kripali and Ram
Ashrey @ Ghonchey from the time when
they were arrested on 17.10.1982 up to
when they were taken out from the police
station lock up and sent to the District jail
Fatehpur on 18.10.1982 at about 8.30 am.
However, for the third accused Rakesh
namely the appellant herein, it was opined
by the trial court that since the appellant
Rakesh had surrendered in the Court there
was no chance for the witnesses P.W-2 and
P.W-3 to see him on any of such occasion,
between his surrender and lodging in the
jail.

28. The controversy in the present
case, thus, revolves around the issue of
identification of appellant Rakesh by two
constables on convoy duty namely Ram
Deo Pandey and Vinay Kumar, examined
as P.W-2 and P.W-3; respectively.

29. To challenge the conviction of the
appellant Rakesh, it was vehemently
argued by the learned counsel for the
appellant that the identification of the
appellant
was
made
by
the
police
personnels and the eye witness P.W-1 who
had the best chance to identify the
miscreants and stated that he witnessed the
assailants clearly in the headlight of the
6 All. Rakesh Vs. State of U.P.
449
truck and could identify them, did not
participate in the identification parade. The
prosecution has very conveniently withheld
the
best
evidence
by
not
getting
identification of the accused persons from
the first informant, namely P.W-1. The
appellant Rakesh herein had taken a
categorical stand in his examination under
Section 313 that the Investigating Officer
got him identified by the witnesses (P.W-2
and P.W-3) on the date when he was
brought in the Court and that he was kept
bare face.

30. The submission is that the procedure
for conducting identification parade of
unknown accused as provided in the U.P.
Police Regulations and the procedure laid
down for test identification by this Court in
Asharfi vs State reported in AIR 1961 Alld
153 had not been followed. No explanation
could be offered by the prosecution as to why
the identification of accused appellant was not
made by P.W-1 who was the eye-witness and
the first informant of the case. Even according
to the testimony of P.W-1, there was no
chance for anyone else to identify the accused
persons as the assailants were over 7-8 in
number and they ran away after committing
loot as soon as the Police Personnel on convoy
duty reached near his truck. The statement of
P.W-2 and P.W-3 that they identified the
assailants/ dacoits clearly on the spot, is
unbelievable in view of the statement of P.W1 and their own statement that when they
reached at the site of the incident and fired, the
miscreants ran away. There is nothing on
record nor any whisper in the statement of
P.W-2 and P.W-3, Constables on convoy duty,
that they chased the assailants rather they both
admitted that the dacoits were not known to
them and that they did not chase them.

31. In the statement of P.W-3, it has
clearly come that the entire incident
happened within 2-3 minutes. In such a
short gap of time, it was not possible for
the police personnels on convoy duty who
were behind the truck of P.W-1 to identify
the accused persons.

32. Learned A.G.A in rebuttal had
defended the judgment of the trial court
with the contention that the trial court had
committed no illegality in distinguishing
the case of the appellant Rakesh from that
of other two accused persons who were
arrested by the police.

33. As the appellant herein had
surrendered in the Court and he was lodged
in the jail directly, there was no occasion
for the police personnels (P.W-2 and P.W3) to see him or identify him before his
identification in the identification parade.
No infirmity can be found in the
identification parade and the conviction of
the appellant cannot be set aside.

34. Having heard learned counsel for
the parties and perused the record.

Before
entering
into
the
controversy in light of the facts of the
present case it would be apt to note the law
pertaining to test identification parade, i.e
the procedure prescribed in law and the
legal pronouncements pertaining to the
matter.

35. It is settled that the test
identification
is
designed
to
furnish
evidence to corroborate the evidence which
the witness concerned tenders before the
Court. It is held in Ashrafi vs State (supra)
that of all evidence of fact, evidence about
the identification of a stranger is perhaps
the most elusive, and the Courts are
generally agreed that the evidence of
identification of a stranger based on a
450 INDIAN LAW REPORTS ALLAHABAD SERIES
personal impression, even if the veracity of
the witness is above board, should be
approached with considerable caution,
because a variety of conditions must be
fulfilled before evidence based on the
impression
can
become
worthy
of
credence.
While
discussing
general
precautions
regarding
identification
proceedings, it was held that the Court is
bound to follow the rule that evidence as to
the identification of an accused person
must be such as to exclude with reasonable
certainty the possibility of an innocent
person being identified. The Division
Bench judgment of the Madhya Pradesh
High Court was noted in para-'33' of the
report to put a note of caution and lay down
a guideline to accept the evidence as to the
identification, in the shape of 12 questions.

36. The relevant portions of para-'33'
is quoted as under:-

"The evidence of identity must
be thoroughly scrutinised, giving benefit
of all doubt to the accused; but if after a
thorough scrutiny there appears to be
nothing on the record to suspect the
testimony of the identification witnesses,
the Court ought not to fight shy of basing
a conviction on such evidence alone,
because of the bare possibility that there
could
be
honest
though
mistaken
identification."

With great respect we agree with
their Lordships.

The following twelve questions
are apt to arise and must be answered by
the Court to its satisfaction before it can
accept the evidence:--

(1) Did the identifier know the
accused from before?

(2) Did he see him between the
crime and the test identification?

(3) Was there unnecessary delay
in the holding of the test?

(4) Did the Magistrate take
sufficient precautions to ensure that the test
was a fair one?

(5) What was the state of the
prevailing light?

(6) What was the condition of the
eye-sight of the identifier?

(7) What was the state of his
mind?

(8) What opportunity did he have
of seeing; the offenders?

(9)
What
were
the
errors
committed by him?

(10)
Was
there
anything
outstanding in the, features or conduct of
the accused which impressed him?

(11) How did the identifier fare at
other test identifications held in respect of
the same offence?

(12)
Was
the
quantum
of
identification evidence sufficient?

We proceed to discuss these
questions ad seriatim but before we do so
we should like to utter, the warning that no
hard and fast rules can be laid down and
that each case must be dealt with on its
own merits, for rules cannot be so worded
as to include every conceivable case -- it is
sufficient that they apply to those things
which most frequently happen.
6 All. Rakesh Vs. State of U.P.
451

37. In the case of Rameshwar Singh
vs State of Jammu and Kashmir reported
in (1971) 2 SCC 715, it was held that
before dealing with the evidence relating to
identification of the accused it may be
remembered that the substantive evidence
of a witness is his evidence in the 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 in
addition to furnishing corroboration of the
evidence to be given by the witness later in
court at the trial. Much emphasis has been
laid that such identification shall be held
without avoidable and unreasonable delay
after the arrest of the accused and that all
the necessary precautions and safeguards
must be effectively taken so that the
investigation proceeds on correct lines for
punishing the real culprit. It was observed
that it would, in addition, be fair to the
witness concerned who was a stranger to
the accused because in that event the
chances of his memory fading are reduced
and he is required to identify the alleged
culprit at the earliest possible opportunity
after the occurrence. It was held that it is
thus and thus alone that justice can be fairly
assured both to the accused and to the
prosecution.
The
identification
during
police investigation is not a substantive
evidence in law and it can be used for
corroborating or contradictory evidence of
the witness concerned as given in the
Court. It was further stated that the
identification proceedings, therefore, must
be so conducted that evidence with regard
to them when given at the trial, enables the
Court to safely form appropriate judicial
opinion about its evidentiary value for the
purpose of corroborating or contradicing
the statement in Court of the identifying
witnesess (emphasis added).

38. In Ram Babu vs State of Uttar
Pradesh reported in (2010) 5 SCC 63 while
dealing with the case for the commission of
the offence of dacoity punishable under
Section 395 of the Penal Code, it was held
that :-

"14. As per Section 9 of the
Evidence Act, facts which establish the
identity
of
an
accused
are
relevant.
Identification parade belongs to investigation
stage and if adequate precautions are
ensured, the evidence with regard to test
identification parade may be used by the
court for the purpose of corroboration. The
purpose of test identification parade is to test
and
strengthen
trustworthiness
of
the
substantive evidence of a witness in court. It
is for this reason that test identification
parade is held under the supervision of a
magistrate to eliminate any suspicion or
unfairness and to reduce the chances of
testimonial error as magistrate is expected to
take all possible precautions."

39. In R. Shaji vs State of Kerala
reported in (2013) 14 SCC 266 while
referring to the various decisions of the
Apex Court, it was noted in para-'58' that
the evidence from a test identification
parade is admissible under Section 9 of the
Evidence Act, 1872. The test identification
parade is conducted by the police. The
actual evidence regarding identification is
that which is given by the witnesses in
Court. Mere identification of an accused in
a test identification parade is only a
circumstance
corroborative
of
the
identification of the accused in Court.

40. It was discussed in Munshi Singh
Gautam and others vs State of M.P
452 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in (2005) 9 SCC 631 that the
identification
test
did
not
constitute
substantive evidence and the identification
during investigation can only be used as
corroborative of the statement in Court.
Reference had been made to the decision of
the Apex Court in case of Matru vs State of
U.P reported in (1971) 2 SCC 75 and
Santokh Singh vs Izhar Hussain reported
in (1973) 2 SCC 406. Relevant paragraphs
'16' and '17 of the said report are to be
extracted hereunder:-

"16. As was observed by this
Court in Matru v. State of U.P. (1971 (2)
SCC 75) identification tests do not
constitute substantive evidence. They are
primarily meant for the purpose of helping
the investigating agency with an assurance
that their progress with the investigation
into the offence is proceeding on the right
lines. The identification can only be used as
corroborative of the statement in court.
(See Santokh Singh v. Izhar Hussain (1973
(2) SCC 406). The necessity for holding an
identification parade can arise only when
the accused are not previously known to the
witnesses. The whole idea of a test
identification parade is that witnesses who
claim to have seen the culprits at the time
of occurrence are to identify them from the
midst of other persons without any aid or
any other source. The test is done to check
upon their veracity. In other words, 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 eyewitnesses of the
crime. The identification proceedings are
in the nature of tests and significantly,
therefore, there is no provision for it in the
Code and the Evidence Act. It is desirable
that a test identification parade should be
conducted as soon as after the arrest of the
accused.
This
becomes
necessary
to
eliminate the possibility of the accused
being shown to the witnesses prior to the
test identification parade. This is a very
common plea of the accused and, therefore,
the prosecution has to be cautious to
ensure that there is no scope for making
such allegation. If, however, circumstances
are beyond control and there is some delay,
it cannot be said to be fatal to the
prosecution.

17. It is trite to say that the
substantive evidence is the evidence of
identification in Court. Apart from the
clear provisions of Section 9 of the
Evidence Act, the position in law is well
settled by a catena of decisions of this
Court. The facts, which establish the
identity of the accused persons, are
relevant under Section 9 of the Evidence
Act. As a general rule, the substantive
evidence of a witness is the statement made
in
Court.
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
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 proceedings.
This rule of prudence, however, is subject
to exceptions, 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 stage
of investigation, and there is no provision
in the Code which obliges the investigating
6 All. Rakesh Vs. State of U.P.
453
agency to hold or confers a right upon the
accused to claim, a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code.
Failure to hold a test identification parade
would not make inadmissible the evidence
of identification in Court. The weight to be
attached to such identification should be a
matter
for
the
Courts
of
fact.
In
appropriate cases it may accept the
evidence of identification even without
insisting on corroboration. (See Kanta
Prashad v. Delhi Administration (AIR 1958
SC 350), Vaikuntam Chandrappa and
others v. State of Andhra Pradesh (AIR
1960 SC 1340, Budhsen and another v.
State of U.P. (AIR 1970 SC 1321) and
Rameshwar Singh v. State of Jammu and
Kashmir (AIR 1972 SC 102).

41. Considering the above principles,
in light of the language employed in
Section 9 of the Evidence Act, it is settled
that the test identification of the accused in
test identification parade is an evidence
which requires corroboration from the
testimony of the witnesses in the Court and
without corroboration, the result of test
identification parade cannot be made sole
basis of conviction.

42. Before relying upon the evidence
of identification of suspects in the test
identification parade, the Court is required
to determine as to whether prosecution had
taken all necessary precautions to ensure
that the identity of the suspect be kept
concealed before the parade.

43. It is duty of the prosecution to
show that from the time of the arrest of
accused person to the time of his admission
into the jail, precautions were taken to
ensure that he was not seen by any outsider.
Once evidence has been laid to show this,
the burden shifts on the accused to show
otherwise.

44. It was held in Asharfi (supra) that
where a witness gives evidence on oath the
presumption is that he is speaking the truth.
If, therefore, the prosecution has led
evidence to show that from the time of
arrest of an accused to the time of his
admission into the jail, precautions were
taken to ensure that he was not seen by any
outsider, and if the identifying witnesses
depose that they never saw him at any time
between the crime and the identification
parade, the burden lying on the prosecution
has been discharged.