LexJADUNATH SINGH & ANR. versus STATE OF U.P.
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c D E F G H JADUNATH SINGH & ANR. v. STATE OF U.P. December 7, 1970 [S. M. Snoo, V. BHARGAVA AND I. D. DUA, JJ.] Evidence Act, 1872, s. 9-ldentit,y of accused-Witnesses claiming to have known accused from before-Accused denying claim and r.equestlng ttst identifisation-Refusal of test identification whether vitioted trial. The appellants were accused of an offence under s. 302 read with s. 34 of the Indian Penal Code. Apart from P who was injured in the I incident there were, according to the prosecution, two other eye-wit· nesses M and D who knew the appellants from before. The names of the appellants were mentioned in the First Information Report liut not their parentage. The appellants, at the stage of inquiry, made an application to the Additional District Magistrate (Judicial) requellting that a test identification parade be held. According to the appellants P knew them from ·before but not the other two alleged eye-witnClises. The Magistrate rejected the application on the ground that the charge sheet had already been filed. The same request made at the trial stage to the Sessions Judge was again rejected on the ground it was not bona fide. The trial court, believing the eye witnesses, convicted the appellants. The High Court upheld their conviction and did not accept their plea that the trial had been vitiated because they had been denied a test indentification parade. In appeal to this Court by special leave, HELD : As laid down bv this Court in Perkash Chand Sogani's case the absence of teu identification in all cases is not fatal, and if the accus· ed person is well-known by sight it would be waste of time to put him up for identification. But if there is any doubt in the matter the prose· cution should hold an identification parade specially if an accused says that the alleged eye-witnesses did not know him previously. It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist on an identification parade but if the accused does make an application and that application is turned down and It transpires during the course of the trial that the witnesses did not know the accused previously, the prosecution will, unless there is some evidence, run the risk of losing the case on this point. [924 G-925 C] Perk,,sh Ch~nd Sogani v. State of Rajasthan, Cr. A.No. 92/1956 dt. 15-1-1957, applied. · Sajjan Singh v. Emperor, A.I.R. 1945 Laj. 48, State of U.P. v. Jagnoo, A.l.R. 1962 All. 333, In re Sangish, A.LR. 1948 Mad. 113, Awadh Singh & Ors. v. Patna State, A.l.R. 1954 Pat 483, Provash Kumar Bose v. Tiie King, A.I.R. 1951 Cal. 475, Kanta Prasad v. Delhi Administration [1958) S.C.R. 1218. 1221, referred to. · ' In the .present case it could be said about D that his knowledge of the accused was very scant. The claim of the other witness M that h& had. known the accused for about four years was not challenged in ctoss· examination Therefore on the facts of the case the trial of the appellants 918 SUPREME COURT REPORTS [1971] 2 S.C.R. could not he held to be. vitiated because of the denial of test identification A although the reason given by the Magistrate for refusing it, namely, that the charge-sheet had already been filed, was wrong. [925 G-926 CJ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 55 of 1970. Appeal by special leave from the judgment and order dated B September 26, 1969 of the Allahabad High Court in Criminal App!lal No, 1037 of 1969 and Referred No. 82 of 1969. Yogeshwar Prasad, S. K. Bagga and Sureshta Bagga, for the appe!llants. 0. P. Rana, for the respondent. The Judgment of the Court was delivered by. c Sikri, J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad confirming conviction of the two appellants by the Sessions Judge, Mainpuri, 0 under s. 302/34 of the Indian Panel Code. Appellant Jadunath ~ Singh was sentenced to death by the Sessions Judge and appellant Girand Singh was sentenced to undergo imprisonment for life. Jn order to appreciate the points raised before us by the learned counsel for .the appellants it is necessary to state a few facts. It is alleged against the appellants that on.February 26, 1968, at about E 7 .30 a.m., in furtheran9e of their common intention, they murdered one Ram Swamp Pandey by repeatedly stabbing him to death, when iie was passing on the Grand Trunk road
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