Supreme Court of India

DANA YADAV @ DAHU & ORS.versusSTATE OF BIHAR

Citation: 2002 INSC 383
Decided: 13 September 2002
Disposal: Disposed off
Bench: U C BANERJEE

Holding

Identification of an accused for the first time in court, without prior test identification or corroboration, is insufficient for conviction, leading to the acquittal of appellant No.3, while convictions of appellants known to witnesses are upheld.

Summary

The Supreme Court examined the convictions of seven accused in a murder case arising from a Naxalite attack in 1983. The key issue was whether identification of an accused for the first time in court, without a prior test identification parade or corroboration, could support a conviction, especially when the accused was not named in the FIR and identification was delayed by more than two years. The Court held that such identification is unreliable and cannot be the sole basis for conviction, setting aside the conviction of appellant No.3 (Deo Nandan) who was not named in the FIR and whose identification was uncorroborated. However, the Court found that the other appellants (Nos.1,2,4,6,7) were known to the prosecution witnesses and their identification, though sometimes solitary, was credible and supported by other evidence, so their convictions were upheld. The judgment clarified the limited role of test identification parades and affirmed that failure to hold a parade does not render court identification inadmissible, but it remains weak evidence unless corroborated or justified by exceptional circumstances.

Issues considered

Whether identification of an accused for the first time in court, without a prior test identification parade or other corroboration, can form the basis of conviction.
Whether the non‑naming of an accused in the FIR and the delay of more than two years before identification affect the reliability of eyewitness testimony.
Whether the failure to conduct a test identification parade mandates the exclusion of court identification evidence.
Whether convictions of appellants known to prosecution witnesses can be sustained despite the absence of a test identification parade.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2)
Indian Evidence Act, 1872s. 3, s. 9
Indian Penal Code, 1860s. 149, s. 302, s. 307, s. 436

Subjects

identification paradetest identificationeyewitness identificationFIRconvictionacquittalevidentiary valueIndian Evidence Actmurderappellate reviewcriminal procedure

Judgment

DANA YADA V @ DAHU & ORS. A
v.
STATE OF BIHAR

SEPTEMBER 13, 2002

[UM ESH C. BANERJEE AND B.N. AGRA WAL, JJ.) B

Criminal trial:

Identification-Reliance of-Identification of accused in court for the
first time after two years of occurrence without being corroborated either by C
test identification parade or any other evidence-Accused not named in the
FIR though other co-accused were named-Accused also not named in the
statement made by prosecution witnesses to police-No evidence that accused
was known to witnesses-Held it would not be safe to place reliance on such
identification in court unless the same is corroborated by any other evidence- D
Conviction set aside-Evidence Act, 1872-Sections 3 and 9-Penal Code,
1860-Sections 3021149, 3071149 and 436.

Identification of accused by a solitary witness-When accusedji1/ly known
to prosecution witnesses-Held can form basis of conviction, Hence on facts
and circumstances of the case conviction of other accused justified. E
Evidence Act, 1872-Section 9-Test identification parade:

When accused known to prosecution witnesses-Held in such case test
identification is not called fo1'.
F
When prosecution witnesses claiming that accused was known to them,
accused denying the same-Prayer for holding test identification parade-
Course to be adopted by court-Discussed.

Identification of accused-In court and in test identification parade-
Evidentiary value of-Farmer is substantive evidence while latter is though G
primary evidence, but would be corroborative in its character-Further the
• identification in test identification parade can be used only to corroborate
identification of accused by a witness in court.

Admissibility of-Held failure in holding test identification parade does
363
H
364 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A not make it inadmissible in law-Ordinarily identification of accused.for the
first time in court should not form basis of conviction unless it is corroborated
by previous identification in the test identification parade or any other
evidence-Previous identification is a check valve to the evidence of
identification in court of an accused-In exceptional cases only, identification
B of accused in court, without any corroboration, can form the basis ofconviction.

According to the prosecution informant-PW14 along with his
companions undertook a padyatra against terror spread by Naxalites
group. It is alleged that they were attacked by the appellant along with
accused persons and several others, as a result of which two persons died
C and others were injured. First Information Report was drawn up against
named accused persons including the appellants except appellant No. 3.
During investigation ap.Pellant No. 3 was also made accused in the case.
Accused persons including appellants were committed to trial. Trial Court
convicted appellants for murder and other offences. High Court upheld
the conviction.
D
In these appeals, it was contended that appellant No.3 was not named
in the FIR; that he was neither known to informant nor to any of the
prosecution witnesses; that no test identification parade was held and since
appellant No.3 was identified in court for the first time, no reliance should
have been placed upon such identification; and that on the basis of the
E analysis of evidence of identification of appellant Nos. 2, 4, 6 and 7, there
remains evidence of identification by a solitary witness in which event
chances of mistaken identification cannot be ruled out.

Disposing of the appeals, the Court

F HELD: 1.1. There may be a case where an accused is known to a
prosecution witness who did identify him at the time of the occurrence
but for manifold reasons, he could not have divulged his name to the
informant before the FIR was lodged. One of the reasons may be that such
a witness could not meet the informant before the FIR was lodged and no
G sooner, after lodging of the FIR, without any reasonable delay, when he
was examined by the police, name of the accused was disclosed. The other
reason may be where such a witness received injuries during the course
of the occurrence and became unconscious, as such he could not get
opportunity to disclose name of the accused to the informant before
lodging of the FIR and no sooner he regained consciousness, name of the
H accused was disclosed by him in his statement made before the police.
DANA YADA V@ OAHU v. STA TE OF BIHAR 365
These instances are by way of illustrations and cannot be exhaustive. In A
view of these and similar other circumstances, it can be said that merely
because the accused was not named in the FIR, though he was known to
some of the prosecution witnesses, no adverse inference can be drawn
against the prosecution for not naming such an accused in the FIR.
Likewise there cannot be an inflexible rule that if a witness did not name B
an accused before the police, his evidence identifying the accused for the
first time in court cannot be relied upon. There may be a case where a
witness has received injury during the course of occurrence, became
unconscious and remained as such for few months and in the meanwhile,
charge sheet was submitted by the police. In such an eventuality, statement
of the witness could not have been recorded by the police and his C
identification for the first time in court may be relied upon. 1374-8-F)

1.2 In the instant case, appellant No.3 was not named as one of the
accused in FIR, though names of_other accused persons were enumerated
l therein. No prosecution witness named him before the police. PWs 4 and
8 named him in the court but wrongly identified him; PWs 3 and 14 though D
idmtified him in court, did not discl9se his name before the police. There
is 110 evidence that appellant No. 3 was known to PWs 3 and 14 from
before. PW3 was examined after two years of the occurrence and PW14
after more than two- and-a-half years after -t!Je occurrence. Thus, it would
not be safe to place reliance on the identification of appellant No 3 for E
the first time in court by these witnesses after an inordinate delay of more
than two years from the date of the incident, especially when the
identification in court is not corroborated either by the previous
identification in the test identification parade or any other evidence. Hence,
High Court was not justified in upholding the conviction of appellant No.3.
1373-G; 374-A, G, HJ F
1.3. If an accused is well known to the prosecution witnesses from
before, no test identification parade is called for and it would be
meaningless and sheer waste of public time to hold the same. In cases
where according to the prosecution the accused is known to the prosecution
witnesses from before, but the said fact is denied by him and he challenges G
his identity by the prosecution witnesses by filing a petition for holding
test identification parade, Court while dealing with such a prayer, should
consider without holding a mini inquiry as to whether the denial is bona
fide or a mere pretence and/or made with an ulterior motive to delay the
investigation. In case court comes to the conclusion that the denial is bona H
366 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A fide, it may accede to the prayer, but if, however, it is of the view that the
same is a mere pretence and/or made with an ulterior motive to delay the
investigation, question for grant of such a prayer would not arise.
Unjustified grant or refusal of such a prayer would not necessarily enure
to the benefit of either party nor the same would be detrimental to their
B interest. In case prayer is granted and test identification parade is held in
which a witness fails to identify the accused, his so-called claim that the
accused was known to him from before and the evidence of identification
in court should not be accepted. But in case either prayer is not granted
or granted but no test identification parade held, the same ipso facto cannot
be a ground for throwing out evidence of identification of an accused in
C court when evidence of the witness, on the question of identity of the
accused from before, is found to be credible. The main thrust should be
on answer to the question as to whether evidence of a witness in court to
the identity of the accused from before is trustworthy or not. In Cl!se the
answer is in the affirmative, the fact that prayer for holding test
D identification parade was rejected or although granted, but no such parade
was held, would not in any manner affect the evidence adduced in court
in relation to identity of the accused. But if, however, such evidence is not
free from doubt, the same may be a relevant material while appreciating
the evidence of identification adduced in court which is substantive
evidence whereas that of identification in test identification parade is,
E though a primary evidence but not substantive one, and the same can be
used only to corroborate identification of accused by a witness in court.
1387-D-H; 388-A-DI

1.4. Identification parades are held during the course of investigation
ordinarily at the instance of investigating agencies and should be held with
F reasonable despatch for the purpose of enabling the witnesses to identify
either the properties which are subject matter of alleged offence or the
accused persons involved in the offence so as to provide it with materials
to assure itself if the investigation is proceeding on right lines and the
persons whom it suspects to have committed the offence were the real
G culprits. Failure to hold test identification parade does not make the
evidence of identification in court inadmissible rather the same is very
much admissible in law, but ordinarily identification of an accused by a
witness for the first time in court should not form basis of conviction, the
same being from its very nature inherently of a weak character unless it
is corroborated by his previous identification in the test Identification
H parade or any other evidence. The previous Identification In the test
DANA YADAV 01 OAHU v. STA TE OF BIHAR 367
identification parade is a check valve to the evidence of identification in A
court of an accused by a witness and the same is a rule of prudence and
not law. In exceptional circumstances only, evidence of jdentification for
the first time in court, without the same being corroborated by previous
identification in the test identification parade or any other evidence, can
form the basis of conviction. 1388-E; H; 389-A-BI
B
1.5. Ordinarily, if an accused is not named in the FIR, his
identification by witnesses in court, should not be relied upon, especially
when they did not disclose name of the accused before the police, but to
this general rule there may be exceptions as stated above. 1389-B-Cf

1.6. In cases where the accused is not known to the prosecution C
witnesses and is identified in the test identification parade as well as in
court by a solitary witness, the evidence of identification by him has to be
scrutinized with greater care and caution than in the case of known
accused and should not be accepted unless it is free from all reasonable
doubts. In the instant case, appellants were not unknown but were fully D
known to the prosecution witnesses. Therefore, the identification of
appellant Nos. 2, 4, 6 and 7 by a solitary witness can certainly form the
basis of conviction, more so when the evidence is consistent and has been
found to be credible. As regards appellant No. I, two witnesses supported
the prosecution case disclosed in the first information report, their
statements made before the police as well as court and no infirmity could E
be pointed therein. Hence High Court was justified in upholding conviction
of appellant No. I, 2, 4, 6 and 7. 1384-H; 387-A-C; 389-CI

I. 7. The prayer for holding test identification parade was not made
on behalf of appellants named in the FIR, other than appellant No. 3, but
was made on behalf of other two accused who have been acquitted. F
Therefore, for not holding test identification parade in relation to the other
two accused, appellants cannot take any advantage therefrom. Appellants
could not point out any material from the record in support and also no
petition was filed on behalf of appellants challenging their identification
by the prosecution witnesses. The submission was made in vacuum without G
any foundation for the same, therefore, it is rejected being devoid of any
substance. 1383-F-H; 384-A)

Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh, AIR (1960)
SC 1340; Budhsen and Anr. v. State of U.P .. 1197012 SCC 128; Sheikh asib
alias Tabarak v. The State of Bihar, 119721 4 SCC 773; Bollavaram Pedda H
368 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Narsi Redc(r and Ors. v. State of Andhra Pradesh. 119911 3 SCC 434; Ronny
alias Ronald James Alwaris and Ors. v. State of Maharashtra, 119981 3 SCC
625; Raiesh Gm·ind Jagesha v. State of Maharashtra. 119991 8 SCC 428;
Ramesl1l1'ar Singh v. State of.Jam mu and Kashmir, 1197211 SCR 627; RaYindra
alias Rari Bansi Gohar "·State of Maharashtra and Ors.. 1199816 SCC 609;
B Kanta Prashad'" Delhi Administration. AIR (1958) SC 350; Kanan and Ors.
v. State of Kera/a, f 19791 3 SCC 319; Mohan/al Gangaram Gehani ,., State
of Maharashtra (1982) I SCC 700; State of Maharashtra v. Sukhder Singh
and Anr., 119921 3 SCC 700; .Jaspal Singh alias Pali v. State of Punjab
119971 I SCC 510; Raju alias Rajendra v. State of Maharashtra 119981 I
SCC 169; George and Ors. v. State of Kera/a and Anr. 119981 4 SCC 605;
C State of H.P. v. Lekh Raj and Anr., [200011SCC247; Ramanbhai Naranbhai
Patel and Ors. v. State of Gujarat [200011 SCC 358; Dharamvir & Anr. v.
State of MP, [197414SCC150; Mehtab Singh v. State of MP, 119751 3
SCC 407; Sajjan Singh v. Emperor, AIR 1945 Lahore 48; State of UP. v.
Jagnoo, AIR 1968 Allahabad 333; In re Sangiah, AIR (1948) Madras 113;
Parkash Chand Sogani v. The State of Rajasthan in Crl. A. No.92 of 1956,
D decided by SC, 15-1-1957 (unreported); Jadunath Singh and Anr. v. The
State of UP., 119701 3 SCC 518; Surendra Narain alias Munno Pandey v.
State of UP., 1199811 SCC 76; Public Prosecutor v. Sankarapandia Naidu,
(1932) Madras Weekly Notes 427; Amar Singh v. Emperor, AIR (1943)
Lahore 303; Shri Ram v. State of UP., 11975) 3 SCC 495; State v. Dhanpat
E Chamara, AIR (1960) Patna 582; Tek Chand v. State, AIR (1965) Punjab
146; State of UP. v. Rajju, 119711 3 SCC 174 and Go/am Majibuddin v.
State of W. 8., 119721 4(N) SCC 39, referred to

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1156-57 of 2001.
F From the Judgment and Order.dated 21.4.2000 of the Patna High Court
in Crl. A. No. 254 and 245 (DB) of 1986.

P.S. Mishra and A. Sharan, S. Chandra Shekar, Vishna Sharma, Upendra
Mishra, Tathagat H. Vardhan and lrshad Ahmad for the Appellants.

G B.B. Singh and Kumar Rajesh Singh, for the Respondent.

The Judgment of the Court was delivered by
..
B.N. AGRA WAL, J. The appellants along with accused Rajendra Yadav
and Madan Dusadh were convicted by the trial court under Sections 302/149
H of the Penal Code and sentenced to undergo imprisonment for life. They
DANAYADAV@DAHU v. STATEOFBIHAR [B.N.AGRAWAL.J.) 369

were further convicted under Sections 3071149 and 436 of the Penal Code A
and sentenced to undergo rigorous imprisonment for a period of ten years
and seven years respectively .The sentences were, howe.ver, directed to run
concurrently. The other five accused were acquitted by the trial court. On
appeals being preferred, convictions and sentences of the appellants have
been upheld by the High ·court whereas accused Rajendra Yadav and Madan B
Dusadh have been acquitted.

The prosecution case, in short, is that the informant Shambhu Prasad
Komal (PW.14), who was worker of Revolutionary Group of Forward Bloc,
along with his companions was undertaking a padyatra from 22nd April,
I983 to 27th April, I 983 which was led by their leader Balmukund Rahi. In C
the evening of 25th April, 1983 they held a meeting at Guraru and after the
same was over PW-14 along with 150 workers went to Village Karma for
night halt where they stayed in the house of one Ramratan Yadav (PW.12)
and after taking dinner when some of them were sitting inside the Baithaka
and Ors. outside, at about 9-9.15 P.M., they heard slogans coming from
towards South of the village. In the meantime,. nearly 150-200 members of D
Naxalite group came, surrounded the house of PW-12, amongst whom accused
Dara Singh@ Kamdeo Yadav and appellant Bindeshwar Yadav were carrying
guns and pointing towards the prosecution party saying "be careful and raise
your hands" whereupon out of fear some of the members of the prosecution
party went inside the house and closed the door from within. Thereafter, they E
heard sounds of bullet firing and bomb explosion and the house in which
they were hiding themselves was set on fire. When the members of the
prosecution party found that they were e~osed to the risk of being roasted
alive as a result of fire, they came out of the house and at that point of time
the accused persons surrounded them and took them to the south-eastern
direction where they were forced to sit. Out of the members of the prosecution F
party, Balmukund Rahi, Chandradeo Yadav and Ganesh Yadav (PW. I) were
taken to eastern direction by the appellants Bindeshwar Yadav and
Bhuvneshwar Bind besides accused Dara Singh, Madan Dusadh, Dhudheshwar
Dusadh and Gupta Yadav. Out of them appellants Bindeshwar Yadav and
Bhuvneshwar Bind apart from accused Dara Singh and Dhudheshwar Dusadh G
were said to have cut throats of Balmukund Rahi and Chandradeo Yadav
with pasuli whereas PW- I was inflicted injuries on the head by phrasa but he
managed to escape. Appellants Dana, Rambilas, Doman and Ramchandra
along with eight other named accused persons and several other unknown
were alleged to have surrounded other members of the prosecution party and
assaulted Bal Govind (PW.8), Chandrika (PW.4) and Ramratan Yadav (PW. 12) H
370 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A who received injuries. Thereafter the accused persons took to their heels.
Motive for the occurrence disclosed was that members of the prosecution
party had undertaken padyatra against terror spread by the naxalites. Stating
the aforesaid facts, fardbayan of the informant (PW-14) was recorded by the
Sub-Inspector of Police on the same day at 11 P.M. in the village on the basis
of which formal first information report was drawn up against 14 named
B accused persons, including the appellants, excepting Deo Nandan, and the
police, after registering the case, took up investigation, during the course of
which appellant Deo Nandan was also made accused in the case and on
completion thereof, submitted charge sheet, on receipt whereof the learned
Magistrate took cognizance and committed 14 accused persons, including the
C appellants, to the Court of Sessions to face trial.
Defence of the accused persons, including the appellants, was that they
were innocent and had no complicity with the crime, but were falsely
implicated.

D During trial; the prosecution examined 15 witnesses in all and several
documents were exhibited whereas defence failed to adduce any evidence.
Upon the completion of trial, the learned Additional Sessions Judge convicted
the accused persons, as stated above, and the High Court upheld the convictions
and sentences of the seven accused and acquitted two of them, as mentioned
above. Hence these appeals by special leave. Out of seven appellants, name
E of appellant no. 5 Bhuvneshwar Bind was deleted, as such we are required
to consider in these appeals cases of six appellants.

Shri Prabha Shankar Mishra, learned Senior Counsel appearing on behalf
of the appellants in support of the appeals raised several points. It has been
submitted that Deo Nandan (appellant No. 3) was not named in the first
F information report and neither known to the informant nor to any of the
prosecution witnesses and although no test identification parade was held, he
was identified in court for the first time, as such no reliance should have been
placed upon such an identification more so when there.was no exceptional
circumstance to place reliance upon his identification for the first time made
G in Court without the same being corroborated by previous identification in
the test identification parade or any other evidence. Section 9 of the Evidence
Act deals with relevancy of facts necessary to explain or introduce relevant
facts. It says, inter alia, facts which establish the identity of any thing or
person whose identity is relevant, in so far as they are necessary for the
purpose, are.relevant. So the evidence of identification is a relevant piece of
H evidence under Section 9 of the Evidence Act where the evidence consists of
DANA YADAV@DAHU v. STATE OF BIHAR [B.N. AGRAWAL,J.) 371

identification of the accused at his trial. The identification of an accused by A
a witness in court is substantive evidence whereas evidence of identification
in test identification parade is though primary evidence but not substantive
one and the same can be used only to corroborate identification of the accused
by a witness in court. This Court has dealt with this question on several
occasions. In the case of Vaikuntam Chandrappa and Ors. v. State of Andhra B
Pradesh, AIR (1960) SC 1340 which is a three Judge Bench decision of this
Court, Wanchoo, J., with whom A.K. Sarkar and K. Subba Rao, JJ. agreed,
speaking for the Court, observed that the substantive evidence of a witness
is his statement in court but the purpose of test identification is to test that
evidence and the safe rule is that the sworn testimony of witnesses in court
as to the identity of the accused who are stranger to the witnesses, generally C
speaking, requires corroboration which should be in the form of an earlier
identification proceeding or any other evidence. The law laid down in the
aforesaid decision has been reiterated in the cases of Budhsen and Anr. v.
State of U.P .. [1970] 2 SCC 128, Sheikh Hasib alias Tabarak v. The State
of Bihar, [1972] 4 SCC 773, Bo/lavaram Pedda Narsi Reddy and Ors. v.
State of Andhra Pradesh. [1991] 3 SCC 434, Ronny alias Ronald James D
Alwaris and Ors. v. State of Maharashtra, [1998] 3 SCC 625 and Rajesh
Govind Jagesha v. State of Maharashtra, [1999] 8 SCC 428. It is well settled
that identification parades are held ordinarily at the instance of the investigating
officer for the purpose of enabling the witnesses to identify either the properties
which are the subject matter of alleged offence or the persons who are alleged E
to have been involved in the offence. Such tests or parades, in ordinary
course, belong to the investigation stage and they serve to provide the
investigating authorities with material to assure themselves if the investigation
is proceeding on right lines. In other words, it is through these identification
parades that the investigating agency is required to ascertain whether the
persons whom they suspect to have committed the offence were the real F
culprits. Reference in this connection may be made to the decisions of this
court in the cases of Budhsen, (supra), Sheikh Hasib (supra), Rameshwar
Singh v. State of Jammu & Kashmir [1972] I SCR 627 and Ravindra alias
Ravi Bansi Gohar v. State of Maharashtra and Ors., [1998] 6 SCC 609.

It is also well settled that failure to hold test identification parade,
G
which should be held with reasonable despatch, does not make the evidence
of identification in court inadmissible rather the same is very much admissibt'J1.
in law. Question is what is its probative value? Ordinarily identification of an
accused for the first time in court by a witness should not be relied upon, the
same being from its very nature, inherently of a weak character, unless it is H
372 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A corroborated by his previous identification in the test identification parade or
any other evidence. The purpose of test identification parade is to test the
observation, grasp, memory, capacity to recapitulate what a witness has seen
earlier, strength or trustworthiness of the evidence of identification of an
accused and to ascertain if it can be used as reliable corroborative evidence
B of the witness identifying the accused at his trial in court. If a witness identifies
the accused in court for the first time, the probative value of such
uncorroborated evidence becomes minimal so much so that it becomes, as a
rule of prudence and not law, unsafe to rely on such a piece of evidence. We
are fortified in our view by catena of decisions of this Court in the cases of
Kanta Prashad v. Delhi Administration, AIR (1958) SC 350, Vaikuntam
C Chandrappa (supra), Budhsen (supra), Kanan and Ors. v. Stale of Kera/a,
[ 1979] 3 SCC 3 I 9, Mohan/al Gangaram Gehani v. State of Maharashtra,
[ 1982] I SCC 700, Bollavaram Pedda Narsi Reddy (supra), State of
Maharashtra v. Sukhdev Singh and Anr., [1992] 3 SCC 700, Jaspal Singh
alias Pali v. State of Punjab, [ 1997] I SCC 510, Raju alias Rajendra v. State
of Maharashtra, [1998] I SCC 169, Ronny alias Ronald James Alwaris,
D (supra), George and Ors. v. State of Kera/a and Anr., [1998] 4 SCC 605,
Rajesh Govind Jagesha, (supra), State of H.P. v. lekh Raj and Anr., [2000]
I SCC 247 and Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat,
r20001 1 sec 358.

E Apart from the ordinary rule laid down in the aforesaid decisions, certain
exceptions to the same have been carved out where identification of an accused
for the first time in court without there being any corroboration whatsoever
can form -the sole basis for his conviction. In the case of Budhsen (supra) it
was observed:-

"There may, however, be exceptions to this general rule, when for
F
example, the court is impressed by a particular witness, on whose
testimony it can safely rely, without such or other corroboration."

In the case of State of Maharashtra (supra), it was laid down that if a
witness had any particular reason to remember about the identity of an accused,
G in that event, the case can be brought under the exception and upon solitary
evidence of identification of an accused in court for the first time, conviction
can be based. In the case of Ronny alias Ronald James Alwaris and Ors.
(supra), it has been laid down that where the witness had a chance to interact
with the accused or that in a case where the witness had an opportunity to
notice the distinctive features of the accused which lends assurance to his
H testimony in cou11, the evidence of identification in cou11 for the first time by
DANA YADAV@DAHU v. STATEOFBIHAR [B.N.AGRAWAL,J.) 373

such a witness cannot be thrown away merely because no test identification A
parade was held. In that case, the concerned accused had a talk with the
identifying witnesses for about 7/8 minutes. In these circumstances, the
conviction of the accused, on the basis of sworn testimony of witnesses
identifying for the first time in court without the same being corroborated
either by previous identification in the test identification parade or any other
evidence, was upheld by this Court. In the case of Rajesh Govind Jagesha B
(supra), it was laid down that the absence of test identification parade may
not be fatal if the accused is sufficiently described in the complaint leaving
no doubt in the mind of the court regarding his involvement or is arrested on
the spot immediately after the occurrence and in either eventuality, the evidence
of witnesses identifying the accused for the first time in court can form the C
basis for conviction without the same being corroborated by any other evidence
and, accordingly, conviction of the accused was upheld by this Court. In the
case of State of H.P. (supra), it was observed that " .. test identification is
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. There may, however, be exceptions to this general rule, D
when, for example, the court is impressed by a particular witness on whose
testimony it can safely rely without such or other corroboration." In that case,
laying down the aforesaid law, acquittal of one of the accused by High Court
was converted into conviction by this Court on the basis of identification by
a witness for the first time in court without the same being corroborated by E
any other evidence. In the case of Ramanbhai Naranbhai Patel and Ors.
(supra), it was observed "It, therefore, cannot be held, as tried to be submitted
by learned counsel for the appellants, that in the absence of a test identification
parade, the evidence of an eyewitness identifying the acc11sed would become
inadmissible or totally useless; whether the evidence deserves any credence
or not would always depend on the facts and circumstances of each case.'' F
The Court further observed ".the fact remains that these eyewitnesses were
seriously injured and they could have easily seen the faces of the persons
assaulting them and their appearance and identity would well remain imprinted
in their minds especially when they were assaulted in broad day light." In
these circumstances, conviction of the accused was upheld on the basis of G
solitary evidence of identification by a witness for the first time in court.

In the present case, appellant No.3-Deo Nandan was undisputedly not
named as one of the accused in the first information report, though names of
several other accused persons were enumerated therein. In statement made
before the police, no prosecution witness has named him. He was named in H
374 SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.

A court by Balroop Prasad (PW 3), Chandrika (PW 4), Bal Govind (PW 8) and
Shambhu Prasad Komal (PW 14) but PW-4 and PW-8 identified another
person as this appellant and thus these two witnesses wrongly identified this
appellant. So far the other two witnesses, namely, PW-3 and PW-14 are
concerned, though they have identified this appellant in court, but they did
not disclose his name before the police. There may be a case where an
B accused is known to a prosecution witness who did identify him at the time
of the occurrence but for manifold reasons, he could not have divulged his
name to the informant before the first information report was lodged. One of
the reasons may be that such a witness could not meet the informant before
the first information report was lodged and no sooner, after lodging of the
C first information report, without any reasonable delay, when he was examined
by the police, name of the accused was disclosed. The other reason may be
where such a witness received injuries during the course of the occurrence
and became unconscious, as such he could not get opportunity to disclose
name of the accused to the informant before the lodging of the first information
report and no sooner he regained consciousness, name of the accused was
D disclosed by him in his statement made before the police. These instances are
by way of illustrations and cannot be exhaustive. In view of these and similar
other circumstances, it can be said that merely because the accused was not
named in the first information report, though he was known to some of the
prosecution witnesses, no adverse inference can be drawn against the
E prosecution for not naming such an accused in the first information report.
Likewise there cannot be an inflexible rule that if a witness did not name an
accused before the police, his evidence identifying the accused for the first
time in court cannot be relied upon. There may be a case where a witness has
received injury during the course of occurrence, became unconscious and
remained as sugh for few months while in the meanwhile, charge sheet was
F submitted by the police. Jn such an eventuality, statement of the witness
could not have been recorded by the police and his identification for the first
time in court may be relied upon. In the present case, there is no evidence •
that this appellant was known to PWs 3 and 14 from before. The occurrence
is said to have taken place on 25th April, 1983 whereas PW-3 was examined
G after two years in the year 1985 and PW-14 after more than two and a half
years after the occurrence, i.e., in the month of June, 1986. Thus, it would
not be safe to place reliance on the identification of this appellant for the first
time in court by these witnesses after an inordinate delay of more than two
years from the date of the incident, especially when the identification in court
is not corroborated either by the previous identification in the test identification
H parade or any other evidence. This being the position, we are of the view that
DANA YADAV@DAHU v. STATEOFBIHAR [B.N.AGRAWAL,J.] 375
the High Court was not justified in upholding conviction of Deo Nandan A
(appellant No. 3).

Now, we proceed to consider cases of the other five appellants, namely,
Dana Yadav (appellant No. I), Doman Yadav (appellant No.2), Rambilas Yadav
(appellant No. 4), Bindeshwar Yadav (appellant No. 6) and Ramchandra
Yadav (appellant No. 7). It has been submitted that the informant and the B
prosecution witnesses claimed that they knew these appellants from before
the occurrence which was challenged by them, as such on prayer being made
. by the appellants, the learned magistrate directed for holding test identification
parade but curiously enough, no test identification parade was held. Shri
Mishra submitted that in case accused challenges his identity, it was incumbent C
upon the prosecution to hold test identification parade and on its failure to
do so, the court was not justified in convicting him on the basis of his
identification in court by the witnesses. Thus, question arises, if an accused
denies the fact that he is known to the prosecution witnesses and challenges
his identity by them by filing a petition in court and making a prayer therein
for holding test identification parade, what course a court should adopt? The D
answer to the question cannot be put in a straitjacket. For example, if an
accused is relation of prosecution witnesses who are residing in the same
village, it can be reasonably inferred that they are known to each other.
Likewise there may be a case where an accused is on visiting terms with the
prosecution witnesses or there are cases between them, and they used to E
attend the same in court whereby had occasion to see each other. These
instances are only by way of illustration. and in these circumstances, if an
accused challenges his identification by prosecution witnesses, court ordinarily
would not grant the prayer for holding test identification parade. On the other
hand, even if accused and prosecution witness are full brothers or close
relations, they may not be knowing each other, i.e., where they are residing F
in different countries or distant places and had never occasion to meet each
other after they attained senses. Likewise in case of a relation also, a witness
may not know the accused by face as he had never met him and had known
him by name only. Jn these eventualities, if an accused challenges the
identification and prayer for holding test identification is made, the same G
may be granted.

This question was subject matter of consideration before different High
Courts as well as this Court. It is well settled that no test identification parade
is called for and it would be waste of time to put him up for identification
if the victim mentions name of the accused in the first information report or H
376 SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A he is known to the prosecution witnesses from before. Reference may be
made in this regard to the cases of Dharamvir & Anr. v. State of M.P., [1974]
4 SCC 150 and Mehtab Singh v. State of M.P., [ 1975] 3 SCC 407. In the case
of Sajjan Singh v. Emperor, AIR (1945) Lahore 48 where the Court while
examining the case in similar circumstances observed at page 50 thus:
..
B "If an accused person is already well-known to the witnesses, an
identification parade would of course, be only a waste of time. If,
however, the witnesses claim to have known the accused previously,
while the accused himself denies this, it is difficult to see how the ..
claim made by the witnesses can be used as reason for refusing to
allow their claim to be put to the only practical test. Even if the
c denial of the accused is false, no harm is done, and the value of the
evidence given by the witnesses may be increased. It is true that it is
by no means uncommon for persons who have been absconding for
a long time to claim an identification parade in the hope that their
appearance may have changed sufficiently for them to escape
D recognition. Even so, this is not in itself a good ground for refusing
to allow any sort of test to be carried out. It may be that the witnesses
may not be able to identify a person whom they know by sight owing
to some change of appearance or even to weakness of memory, but
this is only one of the facts along with many others, such as the
length of time that has elapsed, which will have to be taken into
E
consideration in determining whether the witnesses are telling the
truth or not."

In the case of State of U.P. v. Jagnoo, AIR (!968) Allahabad 333, the
view taken by Lahore High Court in the case of Sajjan Singh (supra) has
F been referred to with approval.
In the case of Jn re Sangiah AIR ( 1948) Madras 113, the decision of f

the Lahore High Court in Sajjan Singh 's case (supra) was dissented from and
Rajamannar, J. observed thus:

G "I am unable to find any provision in the Code which entitles an
accused to demand that an identification parade should be held at or
before the enquiry or the trial. An identification parade belongs to the
stage of investigation by the Police. The question whether a witness
has or has not identified the accused during the investigation is not
one which is in itself relevant at the.trial.-The-actual evidence regarding
H identification is that which is given by the witness in Court. The fact
DANA YADAV@DAHU v. STATE Of BIHAR [B.N. AGRAWAL, J.) 377

that particular witness has been able to identify the accused at an A
identification parade is only a circumstance corroborative of the
identification in Court. If a witness has not identified the accused at
a parade or otherwise during the investigation the fact may be relied
on by the accused, but I find nothing in the provisions of the Code
which confers a right on the accused to demand that the investigation B
should be conducted in a particular way."

In Parkash Chand Sogani v. The State of Rajasthan, an unreported
decision of this Court in Criminal Appeal No. 92 of 1956 decided on 15th
January, 1957 in connection with the point regarding identification, it was
observed:
c
"Much is sought to be made out of the fact that no identification
parade was held at the earliest opportunity in order to find out whether
PW-7 Shiv Lal could have identified the appellant as the person who
was at the wheel of the car and drove it and reliance is placed upon
Awadh Singh and Ors. v. The Patna State, AIR (1954) Patna 483, D
Provash Kumer Bose and Anr. v. The King, AIR (1951) Calcutta 475
and also Phipson on the Law of Evidence, 9th Ed., p. 415 to justify
the contention that in criminal cases it is not sufficient to identify the
prisoner in the dock but the police should have held an identification
parade at the earliest possible opportunity to show that the accused
person had been connected with the crime. It is also the defence case E
that Shiv Lal did not know the appellant. But on a reading of the
evidence of PW-7 it seems to us clear that Shiv Lal knew the appellant
by sight. Though he made a mistake about his name by referring to
him as Kailash Chandra, it was within the knowledge of Shiv Lal that
the appellant was a brother of Manak Chand and he identified him as F
such. These circumstances are quite enough to show that the absence
of the identification parade would not vitiate the evidence. A person,
w!10 is well-known by sight as the· brother of Manak Chand, even
before the commission of the occurrence, need not be put before an
identification parade in order to be marked out. We do not think that
there is any justification for the contention that the absence of the G
identification parade or a mistake made as to his name, would be
necessarily fatal to the prosecution case in the circumstances."

In Awadh Singh (supra), it was held that the accused person may or
may not have legal right to claim for test identification and the holding oftest
identification may or may not be a rule of law, but it is a rule of prudence. H
378 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Test identification parade should be held especially when the accused persons
definitely assert that they were unknown to the prosecution witnesses either
by name or by face and they requested the authorities concerned to have the
test identification parade held.

In the case of Jadunath Singh and Anr. v. The Stale of U.P., [ 1970] 3
B sec 518, a three Judges Bench of this Court after referring to the above said
decisions observed thus at page 523:

"It seems to us that it has been clearly laid down by this Court, in
Parkash Chand Sogani v. The State of Rajasthan (supra), that the
absence oftest identification in all cases is not fatal and ifthe accused
C person is well-known by sight it would be waste of time to put him
up for identification. Of course if the prosecution fails to hold an
identification on the plea that the witnesses already knew the accused
well and it transpires in the course of the trial that the witnesses did
not know the accused previously, the prosecution would run the risk
D of losing its __ case. It seems to us that if there is any doubt in the
matter the prosecution 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 identification
parade but if the accused does make an application and that application
E is turned down and it transpires during the course of the trial that the
witnesses did not know the accused previously, as pointed out above
the prosecution will, unless there is some other evidence, run the risk
of losing the case on this point."

This Court in that case, after referring to the evidence adduced on
F behalf of the prosecution, came to the conclusion that as accused was known
to the prosecution witnesses from before, identification by witnesses in court
was not affected by the fact that prayer for holding test identification parade
made by the accused on the ground that he was not known to the prosecution
witnesses was not granted and accordingly conviction of the accused was
G upheld.
In the case of Surendra Narain alias Munna Pandey v. Slale qf U.P ..
( 1998] I SCC 76, accused moved an application before the learned magistrate
claiming that he was not known to the witness and test identification parade
should be ordered. The prayer was rejected on the ground that offence was
H exclusively triable by court of Session, as such the learned Magistrate could
DANA YADAV@DAHU v. STATE OF BIMAR (B.N. AGRAWAL, J.] 379

not pass any orders thereon. When the said order was challenged before the A
sessions court, the prayer was granted and it was directed that the accused
shall be put on the test identification parade but the said order was not carried
out During the course of trial, the accused was identified by the witnesses
and he was convicted for the charge of murder and the same having been
upheld by the High Court, the matkr was brought to this Court in appeal by B
special leave. In that case, this Court referred to the observations of
Rajamannar, J. in the case of re Sangiah (supra) quoted above. It noticed the
following observations in the case of Public Prosecutor v. Sankarapandia
Naidu (1932) Madras Weekly Notes 427:-

"Identification parades are held not for the purpose of giving defence C
advocates material to work on, but in order to satisfy investigating
officers of the bona tides of the prosecution witnesses."

The Court further noticed the observations in the case of Amar Singh
v. Emperor, AIR (1943) Lahore 303 where Blacker, J. held thus:

"Whenever an accused person disputes the ability of the prosecution D
witnesses to identify him, the Court should direct an identification
parade to be held save in the most exceptional circumstances."

In relation to the aforesaid observations of Blacker, J., this Court
observed thus at page 80:
E
"With great respect to the learned Judge I am unable to find any
provision of law which compels the Court to so direct a parade. It is
not clear from the judgment whether the Court making the enquiry or
holding the trial should itself hold the parade or if the Court should
stay its proceedings and direct the parade to be held before another
F,
Magistrate. In my opinion it does not take into account the important
fact that an identification parade is a part of the investigation and
once the case has reached the stage of an enquiry before the Magistrate
the investigation is at an end and all that takes place thereafter should
take "place in Court and form part of the record of the case.
G
Now it is quite clear that statements made at an identification parade
are not substantive evidence at the trial. It must be very embarrassing to the
Magistrate making an enquiry. to listen to statements made by the witnesses
at an identification parade which will not be evidence at the enquiry. Further
it is not incumbent on the prosecution to examine all the witnesses cited by
them and all those who took part in the identification parade. It will then H
380 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A mean that the Magistrate has heard the statements of witnesses who will not
be examined at the enquiry. If on the other hand it is suggested that a different
Magistrate should hold the identification parade it appears to me that there
is no provision whatever for such a course when a particular Magistrate is
seized of the case."

B Further, in relation to the case of Sa1Jan Singh (supra), it was observed
thus at page 80:

"The observations in Sajjan Singh v. Emperor (supra) are really obiter
because that case dealt with a regular appeal against the conviction
by a Court of Session. In that case the Magistrate who made the
c enquiry refused an application by the accused to arrange for an
identification parade on the following grounds, viz., that the witnesses
knew the accused before and that the application was made only for
the purpose of delay. The learned Judges held that the reasons given
by the Magistrate were not sound. It is true that they went on to
D observe that should any serious question of identity arise during the
course of the trial the ability of the witnesses to identify the accused
may be put to test before the trial. With great respect I do not agree.
If a case is posted for trial any test as to the ability or credibility of
the witnesses should be decided only in Court and not by means of
an identification parade, the proceedings at which will not form part
E of the record of the Court."

The Court further noticed the earlier three Judge Bench judgment of
this Court in the case of Jad1111ath Singh (supra) where it was held as stated
above that failure to hold test identification parade of the accused is not fatal
in all cases.
F
In the said case when certain observations by this Court in the case of
Shri Ram v. State of U.P., [1975] 3 SCC 495 were relied upon on behalf of
the accused, the Court while noticing the facts of that case observed in
relation thereto thus at page 79:

G "The Court said in that case that the circumstance that the accused
had voluntarily accepted the risk of being identified in a parade but
was denied that opportunity was an important point in his favour. In
that case, the trial court was influenced by the aforesaid.circumstance
and acquitted the accused. On appeal the High Court rejected the
H same as inconsequential by observing that the oral testimony of
DANA YADAV@DAHU v. STATE OF BIHAR [B.N. AGRAWALJ.] 381

witnesses, even if not tested by holding an identification parade, can A
be made the basis of conviction if the request made by the accused
is groundless and the witnesses knew the accused prior to the
occurrence. This Court while holding that no rule of law requires that
the oral testimony of a witness should be corroborated by evidence
of identification and that such evidence is itself a weak type of evidence B
observed thus:

'But the point of the matter is that the court which acquitted
Shri Ram was justifiably influenced by the consideration that
though at the earliest stage he had asked that an identification
parade be held, the demand was opposed by the prosecution and C
the parade was therefore not held.'

Moreover, in that case there was serious infirmity in the testimony of the
eyewitnesses who deposed against the accused and this Court found it to be
unrealistic and unacceptable."

In the case of State v. Dhanpat Chamara, AIR (1960) Patna 582, it was D
held that if a witness does not disclose the name of an accused, it is necessary
to hold a test identification parade, but where he discloses name of the accused,
ordinarily, no such parade is necessary. The Court, however, said that if an
accused holds out a challenge and says that he will not be identified by the
witnesses or makes a prayer that he should be put upon a test identification E
parade, such a parade must always be held in order to meet the challenge.
The Court also said that if the accused was arrested on the spot and was in
custody from that time up to the date of trial, there could be no question at
all about his identity.

In the case of Tek Chand v. State, AIR (1965) Punjab 146, a Division F
Bench of the Punjab High Court held that the accused cannot compel the
prosecution to hold their identification during the investigation and there is
no law or procedure under which the Magistrate could pass such an order.
The Bench proceeded to hold that' if such a prayer is made by the accused
and the prosecution opposes the same, it exposes the witnesses of identification
to a genuine criticism that they would probably not be able to identify the G
offenders correctly if the parade was held. The Court held that when the
request for identification parade was refused for no valid reason and the court
identification was made long afterwards, the identification evidence in court
could not be relied on, unless it was corroborated.
In the case of State of U. P. v. Rajjzt, [1971 ] 3 SCC 174, it was held that H
382 SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A in the absence of request from the accused, the state is not bound to hold
identification parade when they were arrested on the spot.

In the case of Go/am Majibuddin v. State of W.B., [I 972] 4(N) SCC 39,
another three Judge Bench of this Court held that when the witness stated
that he already knew accused before the day of the occurrence and it was not
B the case of the accused that he was not known to the witness previously, test
identification parade would serve no purpose.

In the case of Surendra Narain alias Munna Pandey (supra) after referring
to the aforesaid decisions, this Court observed thus at pages 84-85:

c "On a perusal of the above rulings it is clear that the failure to hold
the test identification parade even after a demand by the accused is
not always fatal and it is only one of the relevant factors to be taken
into consideration along with the other evidence on record. If the
claim of the ocular witnesses that they knew the accused already is
found to be true, the failure to hold a test identification parade is
D
inconsequential.

Turning to the facts of this case, it is seen that PW I had mentioned
the name of the accused in the FIR which was given within 15 minutes
of the occurrence. The other two eyewitnesses, PW 2 and PW 3 also
knew the accused previously. The crucial factor is that the accused
E
was related to the deceased as a son of his "sala" and PW I was also
related to the deceased. The accused had never denied the relationship.
As the trial Judge has observed, "there is not a scintilla of evidence"
that PW I had a grudge against the accused. There is also no evidence
that the wife of the deceased had any enmity with the accused. She
F would not have allowed a false case to be foisted on her brother's
son. The accused was not traceable from 7-4-1977 to 13-5-1977. On
the facts of the case, his application for the test identification parade
on his surrender after such a long time does not appear to be bona
fide. In any event, the evidence on record as accepted by the courts
below is sufficient to prove the guilt of the accused. Further the point
G
does not seem to have been argued before the trial court or the High
Court. On the facts of this case there is no doubt that the failure to
hold a test identification parade in spite of an order passed by the
Sessions Court is not fatal to the prosecution."

H Thus, we are of the view that in case an accused denies the fact that he
DANA YADAV@DAHU v. STATEOFBIHAR (B.N.AGRAWAL.J.) 383
is known to the prosecution witnesses and challenges his identity by tiling a A
petition for holding test identification parade, what a court is required to
consider without holding any mini enquiry, is as to whether the denial is
bona fide or a mere pretence and/or has been made with an oblique motive,
to delay the investigation so as to make out a ground for grant of bail under
proviso to Section 167(2) of the Code of Criminal Procedure. In case court B
comes to the conclusion that the denial is bona fide, it may accede to the
prayer, but, however, if it is of the view that the same is a mere pretence,
question for grant of the prayer would not arise. However, grant or refusal
of such a prayer unjustifiably would not necessarily enure to the benefit of
either party nor the same would be detrimental to their interest. In case
prayer is granted and test identification parade is held in which a witness fails C
to identify the accused, his so called claim that the accused was known to
him from before and identification in court cannot be accepted. But in case
either prayer is not granted or granted but no test identification parade is
held, the same ipso facto cannot be a ground for throwing out identification
of an accused by a witness in court whose evidence is found to be
unimpeachable. Thus the main thrust should be on answer to the question as D
to whether the evidence of a witness in court that he knew the accused from
before and correctly identified the accused is trustworthy or not. If the answer
is in the affirmative, the fact that prayer for holding test identification parade
was rejected or if granted, no such parade was held is not material and would
not in any manner affect the evidence of identification of an accused in court E
by a witness.

Shri Mishra. learned counsel appearing on behalf of the appellants, by
referring to the evidence of the Investigating Officer (PW 15) pointed out
that on prayer being made on behalf of the appellants, other than Deo Nandan,
order was passed by the Sessions Court in revision for holding test F
identification parade, but for reasons best known to the police, same was not
carried out. We find that the said prayer was not made on behalf of any of
the aforesaid five appellants who were named in the first information report,
but was made on behalf of other accused persons, namely, Tilakdhari and
Sehdeo who have been already acquitted. Therefore, for not holding test G
identification parade in relation to the other two accused persons referred to
above, the appellants cannot take any advantage therefrom. Learned counsel,
however, could not point out any material from the record in support of the
bold submissions advanced by him that no test identification parade was held
in spite of order passed therefor. It appears as a matter of fact that no petition
was filed on behalf of the appellants challenging their identification by the H
384 SUPREME COURT REPORTS (2002] SIJPP. 2 S.C.R.

A prosecution witnesses. The submission, in our view, has been made in vacuum
without their being any foundation for the same, therefore, we find no option
but to reject the same being devoid of any substance.

Shri Mishra then submitted that the High Court being the first appellate
court, has riot considered the evidence of witnesses in the manner in which
B it was required under law inasmuch as the evidence of identifying witnesses,
namely, Balroop Prasad (PW 3), Chandrika (PW 4), Bal Govind (PW 8) and
Shambhu Prasad Koma! (PW 14), does not show that the accused persons
were known to them from before and this being a vital qu.estion, the matter
should be remitted to that Court for reappraisal of evidence. It is true that ·
C neither the High Court nor the trial court has considered the evidence from
that angle. But instead of remitting the appeal to the High Court, we deem
it expedient to ourselves consider the evidence of witnesses in this regard.
Shri Mishra placed before us evidence of only some of the identifying
witnesses but could not point out anything from their statements to show that
the accused persons were not known ·to them from before while as a matter
D of fact in the evidence the witnesses have stated how and in what manner the
accused persons were known to them and their evidence on this point is
unassailable. After referring to the evidence of only some of the identifying
witnesses, Shri Mishra could neither place any other evidence nor pointed
out that there was any infirmity therein to show that they did not know the
E appella"nts from before. This being the position, learned counsel could not
pursue the matter further.

Jn the backdrop of the aforesaid facts, we now proceed to consider the
evidence of identification against these appellants. So far as Dana Yadav
(appellant No. I) is concerned, he was named in the first information report
F by the informant and named and identified in court by Suresh Rajwar (PW
6), Chandradeo Bhagat (PW 9) and Ramratan Yadav (PW 12) besides the
informant Shambhu Prasad Koma! (PW 14). PWs 6 and 9 did not name this
appellant in their statement made before the police for which no explanation
is forthcoming. Therefore, it is not safe to place reliance upon identification
G made by them for the first time in court after more than two years from the
date of the alleged occurrence. As far as PW-14 is concerned, he named this
appellant in the first information report. This witness and PW 12 stated even
before the police that this appellant was arrested by the investigating officer
at the place of occurrence immediately. These two witnesses have consistently
supported the prosecution case disclosed in the first information report, their
H statements made before the police as well as court and no infirmity could be
DANA YADAV@DAHU v. STATEOFBIHAR [B.N. AGRAWAL J.) 385
pointed out therein. A
Doman Yadav (appellant No.2) was also named in the first information
report. This appellant was not named by PWs 3 and 9 in their statements
made before the police but in court they had named and identified him. No
explanation whatsoever. is forthcoming for non-disclosure of his name before
the police by these witnesses. Therefore, his identification for the first time B
in court by these witnesses, as a rule of prudence and not rule of law, should
not be relied upon. Next witness in relation to this appellant is Raj Kumar
Yadav (PW 5) who named him before the police as well as in court but failed
to identify him in court. Bal Govind (PW 8) who is another witness in
relation to this appellant did not name him before the police whereas named C
him in court but failed to identify when this appellant was in dock. Another
witness in relation to this appellant is the informant-PWl4 himself who,
though named him in the first information report as well as the statement
made in court, but wrongly identified somebody else as this appellant in the
dock. As such evidence of these witnesses can be of no avail to the prosecution.
The last witness in relation to this appellant is Ramratan Yadav (PW 12) who D ,.
named him before the police as well as in court and correctly identified him.
Learned counsel appearing on behalf of the appellants could not point out
any infirmity in his evidence, except saying that as the informant himself has
wrongly identified another accused as this appellant, on this ground alone,
the evidence of PW-12 should be discarded. In our view, the submission has E
been made only to be rejected.

Rambilas Yadav (appellant No. 4) was another accused named in the
first information report. He was named by PW-12 .befor~ the police as well
as in court. But when this appellant was in dock, he failed to identify him.
Therefore, his evidence can be of no avail to the prosecution. Thus, the F
solitary evidence against this appellant is of the informant-PWl4 who has
named him in the first information report as well as before the police and in
his presence, this appellant was arrested by the investigating officer at the
place of occurrence itself. PW-14 has named this appellant in court and
correctly identified him in the dock. The witness has consistently supported
the prosecution case disclosed in the first information report and no infirmity P
could be pointed out. Merely because this witness has wrongly identified
appellant No.2-Doman Yadav, his evidence in relation to identification of
other appellants cannot be discarded.

Bindeshwar Yadav (appellant No.6), who was also an accused named H
386 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A in the first information report, was not named by PWs 4, 8 and 9 before the
police and for the :irst time after two years they named him in court. But
none of them could identify this appellant in the dock. Therefore, their evidence
can be of no avail to the prosecution as in their evidence in court which is
substantive evidence, they could not identify this appellant. Next witness in
B relation to this appellant is PW 3 who did not name him before the police and
no explanation has been furnished for the same, though in court he has
named and identified this accused for the first time, but after more than two
years from the date of the alleged occurrence. Therefore, it is not safe to
place reliance upon his evidence as it is well settled that belated identification
of accused in court for the first time after more than two years from the date
C of the incident should not form the basis of conviction, especially when the
same is not corroborated by either previous statement made before the police
or any other evidence. Other witnesses in relation to this appellant are PWs
5, 6 and 12. These witnesses have, though, named him before the police as
well as in court, but failed to identify him in the dock. As such their evidence
cannot be taken into consideration for convicting this appellant as the evidence
D of identification in court, which alone is substantive evidence, is wanting.
Now the only witness remains in relation to this appellant is the informant-
PWl4 who has named him in the first information report as well as in court
and correctly identified in the dock. No infirmity could be pointed out in
relation to identification of this appellant by the informant.
E
Ramchandra Yadav (appellant No. 7) was not named before the police
by Chandrika (PW 4), Raj Kumar Yadav (PW.5), Suresh Nabidas (PW 6) and
Bindeshwar Prasad (PW I0) but named in court by them, though none of
them could identify him in dock. Therefore, their evidence cannot form the
basis of conviction. PW.12 had named this appellant before the police as well
F as in court but he failed to identify him in the dock. Thus, his evidence
cannot be used against this appellant. PW 3 did not name this appellant
before the police but has named and identified him in court. As prosecution
has not furnished any explanation for non-disclosure of name of this appellant
before the police by this witness, his belated identification in court for the
G first time after more than two years, should not be relied upon more so, when
the same is not corroborated by any other evidence. Bal Govind (PW.8) is
said to have named this appellant before the police as well as in court but he
identified another accused to be this appellant. Therefore, evidence of this
witness on the question of identification of this appellant has to be discarded.
Now remains the solitary evidence of the informant-PW14 who has named
H him in the first information report as well as in court and correctly identified
DANA YADAV@ DAHU v. STA TE OF BIHAR [B.N. AGRAWAL. J.) 387

in the dock. His evidence being consistent and credible, no ground could be A
pointed out to discard the same.

Shri Mishra further submitted on the basis of the analyses of evidence
of identifJ.cation that so far as appellant Nos. 2,4,6 and 7 are concerned. there
remains evidence of identification by a solitary witness in which event chances
of mistaken identification cannot be ruled out. It may be stated that in cases B
where the accused is not known to the prosecution witnesses and is identified
in the test identification parade as well as in court by a solitary witness, the
evidence of identification by him has to be scrutinized with greater care and
caution than in the case of known accused and should not be accepted unless
free from all reasonable doubts. In the present case, these appellants were not C
unknown but were fully known to the prosecution witnesses. Therefore, their
identification by a solitary witness can certainly form the basis of conviction,
more so when the evidence is consistent and has been found to be credible.
This being the position, in our view, the submission is devoid of any merit.

In view of the law analysed above, we conclude thus:- D
(a) If an accused is well known to the prosecution witnesses from
before, no test identification parade is called for and it would be
meaningless and sheer waste of public time to hold the same.
(b) In cases where according to the prosecution the accused is known E
to the prosecution witnesses from before, but the said fact is
denied by him and he challenges his identity by the prosecution
witnesses by filing a petition for holding test identification parade,
a court while dealing with such a prayer, should consider without
holding a mini inquiry as to whether the denial is bona fide or
a mere pretence and/or made with an ulterior motive to delay the F
investigation. In case court comes to the conclusion that the
denial is bona fide, it may accede to the prayer, but if, however,
it is of the view that the same is a mere pretence and/or made
with an ulterior motive to delay the investigation, question for
grant of such a prayer would not arise. Unjustified grant or refusal
of such a prayer would not necessarily enure to the benefit of G
either party nor the same would be detrimental to their interest.
In case prayer is granted and test identification parade is held in
which a witness fails to identify the accused, his so-called claim
that the accused was known to him from before and the evidence
of identification in court should not be accepted. But in case H
388 SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A either prayer is not granted or granted but no test identification
parade held, the same ipso facto can not be a ground for throwing
out evidence of identification of an accused in court when
evidence of the witness, on the question of identity of the accused
from before, is found to be credible. The main thrust should be
on .answer to the question as to whether evidence of a witness in
B court to the identity of the accused from before is trustworthy or
not. In case the answer is in the affirmative, the fact that prayer
for holding test identification parade was rejected or although
granted, but no such parade was held, would not in any manner
affect the evidence adduced in court in relation to identity of the
c accused. But if, however, such an evidence is not free from
doubt, the same may be a relevant material while appreciating
the evidence of identification adduced in court.
(c) Evidence of identification of an accused in court by a witness is
substantive evidence. whereas that of identification in test
D identification parade is, though a primary evidence but not
substantive one, and the same can be used only to corroborate
identification of accused by a witness in court.
(d) Identification parades are held during the course of investigation
ordinarily at the instance of investigating agencies and should be
E held with reasonable despatch for the purpose of enabling the
witnesses to identify either the properties which are subject matter
of alleged offence or the accused persons involved in the offence
so as to provide it with materials to assure itself if the investigation
is proceeding on right lines and the persons whom it suspects to
have committed the offence were the real culprits.
F
(e) Failure to hold test identification parade does not make the
evidence of identification in court inadmissible rather the same
is very much admissible in law, but ordinarily identification of
an accused by a witness for the first time in court should not
form basis of conviction, the same being from its very nature
G inherently of a weak character unless it is corroborated by his
previous identification in the test identification parade or any
other evidence. The previous identification in the test identification
parade is a check valve to the evidence of identification in court
of an accused by a witness and the same is a rule of prudence
and not law.
H
DANA YADAV@DAHU v. STATEOFBIHAR [B.N.AGRAWAL,J.] 389

(t) In exceptional circumstances only, as discussed above, evidence A
of identification for the first time in court, without the same
being corroborated by previous identification in the test
identification parade or any other evidence, can form the basis of
conviction.
(g) Ordinarily, if an accused is not named in the first information B
report, his identification by witnesses in court, should not be
relied upon, especially when they did not disclose name of the
accused before the police, but to this general rule there may be
exceptions as enumerated above.

In view of the foregoing discussion, in our opinion, the High Court has C
not committed any error in upholding convictions of appellant nos. I, 2, 4,
6 and 7 and sentences awarded against them, consequently their appeals fail
and the same are dismissed. Appeal of appellant no. 3 is allowed, his
convictions and sentences are set aside and he is acquitted of all the charges.
This appellant is directed to be released forthwith, if not required in connection D
with any other case.

N.J. Appeals disposed of.
·~

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