Test identification parade evidence and discovery statements: admissibility, jury directions, and conviction sustained on remaining proof.

Test identification parade evidence conducted under police direction and supervision was treated as inadmissible where it effectively proved communication to police during investigation under section 162 of the 1898 Code, while earlier parades were unaffected. Discovery evidence said to follow information from an accused was not excluded under section 27 because the excluded statement itself was not being proved, so the recovery evidence remained admissible. Objections to the jury charge failed because the summing up was fair as a whole, and the conviction could stand on the remaining admissible evidence where no failure of justice was shown.

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Issues: (i) Whether evidence relating to test identification parades held under police supervision was admissible, especially in relation to the accused against whom the parades were held after the Bombay Police Act, 1951 came into force; (ii) Whether the police officer's evidence of discoveries made "in consequence of" information furnished by an accused was hit by section 27 of the Indian Evidence Act, 1872; (iii) Whether any misdirection or non-direction in the jury charge vitiated the verdict and, if inadmissible evidence was excluded, whether the remaining evidence was sufficient to sustain the conviction.

Issue (i): Whether evidence relating to test identification parades held under police supervision was admissible, especially in relation to the accused against whom the parades were held after the Bombay Police Act, 1951 came into force.

Analysis: The admissibility of identification evidence depended on whether the relevant investigation was governed by section 63 of the City of Bombay Police Act, 1902 or by section 162 of the Code of Criminal Procedure, 1898 after the repeal and substitution brought about by the Bombay Police Act, 1951. The earlier parades held before 1 August 1951 were not within section 162. For the later parades, the Court held that the process of identification necessarily involved communication by the identifying witness to the police of the fact that the person identified was connected with the offence. Where the police officers remained in active control and supervision of the parade, the presence of panch witnesses did not alter the character of the evidence. The purported distinction between the mental act of identification and its communication to the police was accepted, but the proof led through the police officers and the parade record was treated as inadmissible.

Conclusion: The identification-parade evidence held after 1 August 1951 was inadmissible against the concerned accused, but the earlier parades were not affected. The ruling operated against the appellant against whom the later parades were used.

Issue (ii): Whether the police officer's evidence of discoveries made "in consequence of" information furnished by an accused was hit by section 27 of the Indian Evidence Act, 1872.

Analysis: Section 27 permits proof only of so much information received from an accused in police custody as distinctly relates to the fact discovered. The evidence complained of did not set out the actual information given by the accused, but only referred to the discovery as having followed from information or at the accused's instance. On that footing, the Court held that section 27 was not attracted, because the prosecution was not attempting to prove the excluded content of the statement. The evidence of recovery was therefore treated as admissible, while separate reasoning indicated that the probative force of the recovery depended on the surrounding circumstances and not merely on the bare recital of information.

Conclusion: The evidence of discovery was not excluded by section 27 and was admissible.

Issue (iii): Whether any misdirection or non-direction in the jury charge vitiated the verdict and, if inadmissible evidence was excluded, whether the remaining evidence was sufficient to sustain the conviction.

Analysis: A charge to the jury must marshal the evidence fairly and bring out both strengths and weaknesses, but an appellate court will interfere only where a serious misdirection or a failure of justice is shown. The objections directed to the discussion of the number of participants, and to the overall balance of the summing up, were rejected because the charge as a whole fairly placed the prosecution and defence versions before the jury. As regards the accused against whom inadmissible identification evidence had been received, the Court applied the rule that the conviction may still stand if, after excluding the inadmissible material, the remaining admissible evidence is sufficient. The remaining evidence, including eye-witness and circumstantial material, was held sufficient to support the verdict.

Conclusion: No vitiating misdirection or failure of justice was established, and the convictions were sustained on the admissible evidence that remained.

Final Conclusion: The appeals failed in their entirety, with the conviction and sentence of the accused maintained and the verdict left undisturbed.

Ratio Decidendi: Evidence of a test identification parade conducted under police direction and supervision is inadmissible where it amounts to proof of statements made to police during investigation under section 162 of the Code of Criminal Procedure, 1898, but a conviction may still be sustained if the remaining admissible evidence is sufficient and no failure of justice is shown.

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