Hari Swarup, J. - (1.) THIS reference has been occasioned because of different standards being applied to the testing of the veracity of identifying witnesses by different Judges of the Court. When the appeals came up for hearing before a learned single Judge, it was argued that the identification evidence of a witness who at the test identification parade commits even 33% mistake should be discarded as unreliable. Learned single Judge finding that different Judges had taken different views referred the following question of law for the opinion of the Division Bench : "What should be the minimum percentage of correct identification which should be considered to be good identification ?"
(2.) IN criminal cases where a miscreant is not identified by name, he may identified by the witnesses on the basis of his appearance or voice. IN such a case he has to be identified by the witness in the court at the time he gives testimony. The authenticity of the evidence of the witness by which he points out a particular accused as the participant in the crime is normally tested by the court from his performance at the test identification parade held during the course of investigation. The courts have always found it prudent to test the witness's testimony in court by his conduct at the test parade. At the investigation stage when a parade is held and the suspect is mixed up with persons who admittedly could not have been present at the time of occurrence the witness gets opportunity of picking out the person whom he alleges to be the offender. He may at such a parade pick out that man and no other, he may pick out that man and also some others, or he may pick out not the suspect but some one who was admittedly not at the scene of occurrence. The courts have taken these parades into consideration in judging the authenticity of the identification evidence of the witness at the trial. Certain cases have been cited before us to show how the Judges have reacted to the performance of witnesses at identification parades. In Emperor v. Debi Char an alias Debi Prasad, 1942 AWR 293, (Ganga Nath and Yorke, JJ.), it was held that if a person makes I correct identification and commits I mistake, i. e., his performance is 50 per cent, he would not be a witness worthy of reliance for the purposes of identification. But, if a person makes 3 correct identifications and commits two mistakes, i. e., his performance is 60 per cent, he would be a good witness whose testimony at the trial about identification can be relied upon. In State v. Wahid Bux, 1952 AWR 512 (Dayal and Agrawala, JJ.), it was held that where the result at the identification is 75% correct the witness would be reliable. In Munshi v. State, AIR 1968 All. 345 = 1967 AWR 689, (Gangeshwar Prasad, J.), the learned single Judge held that a witness was not reliable if he correctly identified 2 and made one mistake, which means that 66 per cent correct identification was not reliable. In Soorajpal v. State, 1977 ACC 68, (B. N. Katju, J.), the learned Judge took the view that 3 correct and 1 wrong was not reliable. Similar view was taken in Iqbal v. State, 1976 ACrJ 7 (S. K. Kaul, J.). In Ali Sher v. State, 1979 LLJ 8 (Prem Prakash, J.), a witness who had correctly identified 4 suspects but made 1 mistake was held to be class-2 witness. In none of these cases we find any reason given for holding why a particular percentage of correct identification makes the witness reliable and why the other percentage makes him unreliable. Besides these cases we have been referred to a judgment of the Supreme Court in Vaikuntam Chandrappa v. State of Andhra Pradesh, AIR 1960 SC 1340. In that case the Supreme Court relied on the evidence of a witness who had correctly identified two accused and made one mistake ; which means that 66 per cent correct identification at the identification parade was held sufficient for making the witness reliable for the purposes of identification in court.
(3.) IN a case where the witness identifies an accused, he gives the evidence of identification along with other evidence. We are here concerned only with that part of his testimony which relates to the identification of the accused. The relevance of the prior identification parade was accepted by the Supreme Court in Budhsen v. State of U. P., AIR 1970 SC 1321, wherein it was observed : "As a general rule, the substantive evidence of a witness is a 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 evidence in order to carry conviction should ordinarily clarify as to i how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be 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 proceeding." In state of U. P. v. Boota Singh, AIR 1978 SC 1770, the aforesaid observation was reiterated and it was observed that where the witness correctly identifies the accused at a T. I. parade held by a Magistrate after observing all the essential formalities and taking the necessary precautions and then identifies the accused also in court the evidence of identification can be believed unless the evidence of witness suffers from some other infirmity.;