1992 CRI. L. J. 1959 ::(1992) 1 CriCJ 281 ::(1991) 45 DLT 322 ::1992 (1) CurCriR 153 ::1992 (1) RecCriR 116 ::1992 (1) ChandCriC 82 ::1991 (3) Crimes 459 ::(1991) 21 DRJ 279

Delhi High Court

Hon'ble Judge(s): Arun B. Saharya , J

Penal Code (45 of 1860) , S.363, S.366, S.376— Kidnapping and rape - Identification parade - Failure to hold test for - When not fatal - Instance. Evidence Act (1 of 1872) , S.9— For determination of the question whether failure to hold test identification parade is fatal, the material available at the stage of investigation or the opinion of the Investigating Officer are irrelevant. The result would depend upon the facts and circumstances that emerge during the course of the trial on the basis of the evidence on record of the case.(Para 15) Therefore, where in a rape case, from the evidence on record, it was clear that the accused was not named in the First Information Report; and he was living at a place miles away from the house of the prosecutrix; and he was not arrested from the spot in the presence of the witnessess and the accused was not known to the witnesses previously, it cannot be said that the matter regarding the identification of the accused was beyond any doubt especially in view of the persistent stand taken by the prosecutrix that she remained unconscious for 5 days from her alleged kidnapping. Thus, the finding by the Court that there was no need for holding the identification parade would not be sustainable.(Para 16) .....