HARI NATH AND ANR. ETC. versus STATE OF U.P.

Citation: [1988] 1 S.C.R. 848 · Decided: 06-11-1987 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
HARI NATH AND ANR. ETC. 
v. 
STATE OF U.P. 
NOVEMBER 6, 1987 
B 
[A.P. SEN AND M.N. VENKATACHALIAH, JJ.] 
Indian Evidence Act, 1872: Section 9-Identification of accused 
persons in dock after long lapse of time-Whether valid-Evidence of 
test identification-Significance of. 
C 
Criminal Trial: Promptitude in time with which suspected 
\ 
persons are put up for test identification-Necessity for. 
_.t-
It was alleged that on the nig~t between the 3rd and the 4th 
November, 1973 at abont 1.30 a.m. while the two deceased brothers and 
their relatives were sleeping, dacoits armed with weapons including fire 
D arms raided the house. Apart from looting of property, both the 
brothers were seriously injured. They snccnmbed to the injnries there-
after. In response to the commotion and the alarm raised by the house-
hold, a number of villagers assembled and challenged the dacoits, who, 
while running away with the loot under cover of gunfire injnred one of 
i 
the villagers. 
"'( 
E 
An FIR was lodged at 3.45 p.m. that day. Though the identity of 
the cnlprits was not disclosed, some general physiognomic features 
which contd be of universal application were mentioned. 
.._
On 9.11. 73 the appellants and the non-appealing accused were 
F arrested from two villages which were said to be in close vicinity of the _J 
place of occurrence. They were put up for test identification in"'° l 
indentification parade only on 5.3. 74, nearly four months after their 
arrest. The accused persons were stated to have been picked out by PWs 
I to 4. 
G 
The appellants alongwith the non-appealing accused were 
arraigned for the offence. Their defence was one of denial. 
PWs I, 2 and 4, the son and two daughters of the deceased elder r 
brother who were stated to be eye-witnesses and identified the appel· 
lants as the culprits claimed to have been able to recall the identity of 
H the appellants by perception made at the time of the occurrence with the 
848 
HARi NATH v. STATE OF U.P. 
849 
aid of the light of the lantern and the electric hulh which was burning at 
the scene of occurrence. PW 3, who was also put up as an eye witness 
did not support the prosecution. 
During the cross-examination the appellants sought to prove that 
they, being residents of a village close-by, the eye-witnesses, and 
particularly PW 1, who was classmate of three of the appellants, had 
seen and known them earlier and the omission to mention their names 
in the FIR detracted from the credibility of the indictment. 
The trial court convicted all the accused under s. 396 IPC and 
sentenced them to 10 years of rigorous imprisonment. In appeal, High 
Court, affirmed the conviction and sentence. 
On the questions: whether it is reasonably probable that the three 
eye witnesses who had identified the culprits had known three of the 
appellants and their omission to mention them in the FIR stultifies the 
prosecution and, whether, even if there was no such familiarity or 
because of it, the evidence of identification pursuant to a test identifica-
tion conducted after a lapse of nearly four months after arrest, inspires 
confidence. 
Allowing the appeals, 
A 
B 
c 
D 
HELD: 1.1 The one area of criminal evidence susceptible of E 
miscarriage of criminal justice is the error in the identification of 
the criminal. The evidence of test identification would call for a 
careful scrntiny. [855F] 
In a case where the eye witnesses, on their own admission, did not 
know the accused persons before the occurrence, their identification for 
the first time in the dock after a long lapse of time would have been 
improper. In suc.h cases, the test identification at an identification 
parade to test the power of recollection of the witnesses assumed added 
significance. [855A, C] 
F 
1.2 The evidence establishing the identity of the culprits assumes 
G 
particular materiality in a case of decoity occurring in the darkness of 
the night. [854H; 855A] 
The evidence of identification merely corroborates the oral 
testimony in court which alone is the primary and substantive 
evidence as to identity. Absence of corroboration by test identifica-
H 
850 
SUPREME COURT REPORTS 
[ 1988] I S.C.R. 
A 
tion may not assume any materiality if either the witnesses had 
'f.
known the accused earlier or where the reasons for gaining an enduring 
impress of the identity on the mind and memory of the witness 
B 
are, otherwise brought-out. The test identification is itself, directed 
for the purpo

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