WAKIL SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal under S. 2 of the Supreme Court (Enlargement of the Criminal Appellate Jurisdiction) Act and also under S. 379 of the Code of Criminal Procedure is directed against the Judgment of the Patna High Court dated 13th April, 1976,* by which the High Court reversed the order of the Sessions Judge acquitting the appellants and convicted them under S. 396 of the Indian Penal Code and sentenced them to imprisonment for life. The narration of the prosecution case is given in the Judgment of the High Court and it is not necessary to repeat the same here. The case arose out of a dacoity said to have been committed in the house of the complainant, PW-Darbari Sao on the night of 24th May, 1965 at about 8-45 P. M. According to the prosecution some unknown persons including the appellants entered the house, assaulted inmates. killed one of them and looted away properties worth thousands of rupees. There is no clear evidence to show that the deceased Kameshwar Sao was actually killed by one of the dacoits in the course of the dacoity. Although his dead body was found but the prosecution has not been able to establish any nexus between his death and the commission of the dacoity or even his injuries. In these circumstances it is obvious that charge under S. 396 must fail. In the instant case, however this will make no difference because after going through the judgment of the courts below and hearing the counsel for the parties, we are clearly of the opinion that the appellants are entitled to an acquittal. The four appellants were arrested between the 26th August to 2nd September, 1965 and the first T. I. parade was held on 4-9-65 and two other parades were held on 8-9-65. So far as, Wakil Singh is concerned. he had been identified by PWs. 2, 9 and 13. So far as PW 13 is concerned as he had not identified this appellant before the T. I. Parade, he was disbelieved both by the trial Court and the High Court. The trial Court refused to act on the evidence of PW 2 also because this appellant was identified only before the committing court and not before the Sessions Court. Thus the only evidence against Wakil Singh consisted of PW 9.

(2.) In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial court. The High Court however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T. I. parade about 31/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness.

(3.) Lastly, since the High Court was reversing an order of acquittal, it failed to take into consideration the fact that having regard to there being only one witness who identified the accused concerned, the view taken by the trial court could not be said to be reasonably possible. For these reasons, therefore, we are clearly of the opinion that the appellant who had been identified by only one witness must be acquitted. Thus, Wakil Singh, to start with, has been identified by PW 9 and for the reasons that we had stated above, it would be wholly unsafe to maintain his conviction on the basis of the evidence of PW 9 alone. Another circumstance against the prosecution, with respect to this appellant, is that although PW 9 was present on the 4th September, 1965 when a T. I. parade was held, he was not asked to identify the appellant, but the witness identified the accused 4 days later that is to say on 8th September, 1965. These circumstances also throw some doubt on the complicity of this appellant.