STATE OF UTTAR PRADESH Vs. RAM SAHAI

JUDGEMENT

(1.) The accused respondent was found guilty of an offence punishable under section 396 Indian Penal Code and sentenced to imprisonment for life by the addl. sessions judge, Hamirpur vide the judgment dated 29/06/1978. In an appeal preferred by the accused, the division bench of the high Court of Allahabad vide judgment dated 28/01/1992 set aside the conviction and acquitted the respondent. The aggrieved state has filed this appeal by special leave.

(2.) It is not in controversy that on 8/08/1976 at about 10. 30. p. m. bus no. UTR 363, proceeding on Hamirpur path road of U. P. , was looted by six or seven miscreants. Between villages Panthia and ujaari, the miscreants entered the bus. There were two constables travelling in the bus. One of the constables was shot dead in the bus and the other was seriously injured. There are three eye-witnesses, viz. , Public Witness 1, Public witness 3 and Public Witness 5 who were travelling in the same bus. They claimed to have identified the miscreants in the light which was on in the bus. It is stated that the miscreants were also holding torches which they were flashing and the torchlight also enabled the identification of the miscreants. On 1st october, 1976, the accused-respondent was arrested in connection with some other offence registered at the same police station. During the course of interrogation, he gave a clue of his involvement in this incident also. Thereafter, a test identification parade was arranged and conducted on 28/11/1976 by Shri r. N. Mishra, executive magistrate - Public Witness 4. The three witnesses, i. e. , Public Witness 1, Public Witness 3 and public Witness 5, identified the accused-respondent during the trial in the court. The trial court believed the identification of the accused- respondent and held that he had participated in the incident and was one of the miscreants. However, the High Court found the identification of the accused- respondent by the three witnesses not reliable. The High Court was much impressed by the admission made by Shri r. N. Mishra, during cross-examination, that the witnesses, who had come to participate in the test identification parade, had stated before identifying the accused-respondent that they had come to identify Ram Sahai. There-from the high Court has drawn an inference that the name of the accused-respondent was previously known to the witnesses which had an adverse affect on the value of the identification at the parade. This fact finds mention in the statements of the witnesses as recorded by the learned executive magistrate and also in the memo of test identification parade. Apart from this fact, the High Court also found Public Witness 1 having admitted in cross-examination that at the test identification parade, he had wrongly identified two persons. Similarly, Public Witness 3 had wrongly identified one person before identifying the accused-respondent. So far as Public Witness 5 is concerned, the High Court had found that he was a pocket witness of the police inasmuch as he had figured as witness of the police in a number of cases, to prove this fact a number of documents were brought on record and exhibited at the trial.

(3.) No part of property stolen in dacoity, has been recovered from the respondent. Excepting the evidence of identification, there is no other evidence to show the involvement of the accused-respondent in the incident of dacoity.