YOGENDRA Vs. STATE OF U P

JUDGEMENT

(1.) The applicant has requested for bail in a case of u/s. 376, IPC. It is alleged that while the victim a girl about seven years was sleeping during the night of 20/21.1.1993 she was lifted by the applicant and co-accused from her house and taken to a near by field where rape was committed on her. The applicant has been named in the First Information Report he claimed that he is not known to the witnesses including the parents of the girl who has reached the placed of occurrence allegedly just after the crime and had allegedly seen the applicant alongwith the coaccused in the torch light. The applicant claimed through an application before the Magistrate concerned that he should be put for test identification parade, but the prosecution opposed the application and the Magistrate therefore rejected the prayer. The applicant has also taken the plea of alibi stating that he was working in a. different district with a Thekedar. It has also been pleaded that the First Information Report was lodged after seven days and this unreasonable delay has not been explained.

(2.) Reliance has been placed on Madan Mohan Singh v. State of UP., and Sakil v. State of U.P. and Budh Sen v. State. In Madan Mohan Singh v. State of U.P. (supra) after considering several Rulings including Sri Ram V. State of U.P. Suresh. Chandra v. State, Ramesh and others v. State of U.P., it was held by this Honble Court that there is no law to lay down that in every case in which the accused applies for being put for identification the prosecution is bound to accept his request. Normally it should do so but if it refuses it takes the risk and the risk is that if the court ultimately holds that the witnesses who are deposing against the accused did not know him from before their testimony will have to be discarded because it will become suspicious in the absence of a previous test identification inspite of the request of the accused. In Sakil v. Stale of U.P. (Supra) reliance was placed on Suresh Chandra v. State (Supra) and it was reiterated that when an accused claims an identification it would normally be allowed to lend assurance to the statements of the eye witnesses of the occurrence and in order to corporate their statement from the result of the identification proceedings. If the accused is stranger to the prosecution witnesses and he claims identification, his request in this regard must always be allowed because it was only by holding his test identification that the veracity of the eye witnesses could be checked. In Budh Sen v. State (Supra) this court held that it appears that the prosecution is ignoring the basic principles of justice that the accused should also not be denied any opportunity especially the privilege of defence. His claim that he is not Smt. Laxmi Kishore Tonsekar known to the witnesses is a relevant fact in order to dislodge the assertions of the prosecution that he was known to them and they had named him. In order to substantiate this contention of the defence, the accused can and has validly claimed test identification parade and refusal thereof even if it be by way of omission on the part of prosecution is correctly to give to various inference.

(3.) The ultimate result is that although Chapter XII of Code of Criminal Procedure and section 9 of the Evidence Act do not disclose any provision in the Code of Criminal Procedure entitling the accused to demand that he should be put up for identification either at the trial or before the enquiry, and statement of identifiers at the test identification parade arc not substantive evidence at the trial and have only got corborative value, normally if the accused applies for being put up for identification, the prosecution should do so, and if it refuses, it takes the risk is that if the court ultimately holds that the witnesses who are deposing against the accused did not know him from before their testimony will have to be discarded because it will become suspicious in the absence of the previous test identification inspite of the request of the accused.