SAGHIR AHMAD Vs. STATE

JUDGEMENT

(1.) The appellants Saghir Ahmad alias Iftikhar Husain, Azadur Husain and Qamar All were convicted by Shri L. N. Misra Sessions Judge, Lucknow, on 6th February 1960 under Section 394, Penal Code, and sentenced each to rigorous imprisonment for seven years.

(2.) The prosecution case briefly was that on 31st August 1948, at about 9 p.m. Gopal Mahraj P. W. 4. boarded an ekka at Goldarwaza, Chauk, Lucknow. He had a box with him containing cash Rs. 1,800/- and unsold ghunghroos worth Rs. 900/-. The same ekka was boarded by Ram Krishna Das alias Bachchu Lal P. W. 3. A third person also got into the ekka. The ekka was going to Charbagh Railway station. The ekka proceeded towards Charbagh via the Medical College crossing. The third passenger who got into the ekka requested the ekka driver Sardar Ahmad P. W. 17 to proceed via the Jubilee College as he had to get down there. After going beyond the railway oven bridge, the ekka stopped near the mosque and the triangular park. The third passenger got down there and paid annas two whereas annas two three were due. He then went to three persons who were standing a little distance away. Two of them on one side of the road and the third was on the other, and he had a cycle. The third passenger soon returned to the ekka and the driver thought that he was going to receive the one anna due to him, but at that moment two of the three persona, who had been standing on the road, came up and threatened the party in the ekka with pistol. Some shots were actually fired. One of the men threatened Ram Krishna Das with a knife and later picked up the box of Gopal Mahraj and began to take it away. Gopal Mahraj resisted and the box fell down. Gopal Mahraj was stabbed with a knife. Ram Krishna DAS ran away to the bungalow of Shri Chatterji, Advocate. The ekkawala drove in the direction in which Ram Krishna had gone. Gopal Mahraj fell down on his legs being pulled by one of the robbers and another ran away with the box. Gopal Mahraj chased him. Gopal Mahraj was stubbed again by another robber. After a little while, it seems that the robber carrying the box staggered and fell and Gopal Mahraj ran up and picked up the box. The robber made good his escape. Gopal Mahraj took shelter in a pit and a little while later returned to Chauk. In the meantime, Ram Krishna Das had also returned to Chauk and told people as to what had happened. Ram Krishna Das went to police station kotwali to make a report, but be was asked to find out the identity of the victim of the robbery and to report at the Wazirganj thana which had jurisdiction in connection with this crime. At this time Gopal Mahraj met Ram Krishna Das and they went to the thana. As Gopal Mahraj became unconscious on account of loss of blood, the report was made by Ram Krishna Das. The investigation resulted in the arrest of five persons, including the three appellants. Identification proceedings were held three times and eventually the five persons were prosecuted, Qamar AH appellant is said to have absconded and identification proceedings in his case were held on 7th October 1949. All the appellants and the other two co-accused pleaded not guilty. fOR the prosecution were examined Gopal Mahraj P. W. 4 the victim, Sardar Ahmad P. W. 17 the ekka driver and Ram Krishna Das P. W. 3, who was a co-passenger in the ekka with the victim, and also three other persons Imami P. W. 5, Maddhey P. W. 6 and Babu P. W. 7, residents of the locality where the dacoity took place. There was also evidence that shortly before the occurrence the three appellants and two others had been seen near the scene of occurrence by Rahat Husain P. W. 11. There was also the retracted confession of one of the accused in the case, Bahadur. The case was tried by jury, and they were unanimously of the opinion that two co-accused with the appellants Bahadur Mirza alias Doctor and Syed Ali Zaheer, were not guilty. The verdict of the majority also was that the three appellants Azadar Husain, Saghir Ahmad and Qamar Ali, are guilty of the offence under Section 394, Penal Code. The learned Judge seeing no reason to differ from the verdict of the jury convicted the three appellants and acquitted the other two, Bahadur Mirza alias Doctor and Syed Ali Zaheer.

(3.) In this appeal it has been contended that the verdict of the jury is erroneous on account of their misdirection by the learned Judge. It is pointed out that the learned Judge while referring to the identification evidence of the various witnesses, did not specifically point out to the jurors the mistakes which had been made by the witnesses, which materially affected the value of the identification evidence, and that on account of this the jury failed to realise the true value of the identification evidence and came to an erroneous conclusion. There is considerable force in this contention,