SHAMSHER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) A dacoity was, on doubtedly, committed by 14-15 persons on the night between the 29th and 30th of March, 1976 at the house of Ram Chandra Singh (P. W. 1) situate in village Hajauli, police station Garwar, district Ballia. The dacoits not only ransacked the house and bolted away with movables, but caused injuries also to some persons by firing shots during the commission of dacoity. The crime was registered on the following morning at the police station and usual investigation commenced in the course of which the appellants, namely, Shamshar Singh, Surya Bhan Singh, Jang Bahadur Singh and Deoki, were arrested and were put up for identifi cation. The prosecution claimed that some of the movables taken away by bandits from the house of Ram Chandra Singh (P. W. 1) on that night were recovered from the possession of Shamsher singh and Surya Singh on the 19th of April, 1976. The articles were also put up for identification and after seeing the result of the test-parades, these appellants and one Babban Tewari, who had also been arrested in the course of investigation and had been put up for identi fication, were charge-sheeted, as consequence whereof they were committed to the Court of Session where they were tried for committing the offence punishable under Sec. 395 of the Indian Penal Code. A charge, in the alter native, under Sec7 412 of the Indian Penal Code was framed against Shamsher Singh and Surya Bhan Singh. 2. The appellants denied the accusation:-, and pleaded not guilty. Babban Tewari had also asserted that his implication was false. The trial ended in the conviction of each appellant under Sec. 395 of the Indian Penal Code with a sentence of rigorous imprisonment for a psriod of 7 years. Babban Tewari was acquitted by the same judgemnt and order dated the 6th of June, 1979 passed by Sri O. P. Jain, the then, IVth Additional Sessions Judge, Ballia. The correctness and the propriety of which has been assailed by all the four persons, who have been con victed, by means this appeal. 3. I have heard the learned counsel for the parties and have carefully considered the inaterial on the record. The contention of the Itemed counsel for the appellants that the evi dence of identification suffers from infirmities and has wrongly been accepted by the Court below, is well founded, for these reasons. 4. It may be recalled that one Babban Tewari was also tried for the same offence along with the appellants and he stands acquitted. Against him, there was evidence of identification alone consisting of the statements of Shyam Sunder Singh (P. W. 4) and Shiv Singh (P. W. 9 ). They had correctly picked him in the test parade held on the 29th of April, 1976 along with the identification parade of three appellants (real brothers) viz. Shamsher Singh, Surya Bhan Singh and Jang Bahadur Singh. The learned trial court has rejected the claim of these identifying witnesses so far as it relates to Babban Tewri, primarily on the ground that Babban Tewari was known to each of them from before the Commission of the dacoity. It follows that their performance in the test-parade of Babban Tewari was a complete farce and either they succumbed to the desire of the police to initially show complete ignorance about their identify and put their hand in the test-parade in an innocent manner or they had their own grudge against Babban Tewari For bringing the case in the later category there is no sufficient material on record. It would, therefore, not be un-reasonable to conclude that they acceeded 10 the demand of the police for implicating, Babban Tewari in a crime of ihis nature. The identification evidence of such witnesses for the purpose of impli cating, other persons cannot be attached sufficient weight and they cannot be termed as 'good witnessees'. Yet the learned trial court while dealing with the case of Jang Bahadur Singh, appellant made an observation: "sheoji Singh (P. W. 9) is a good witness of identification because he did not commit any mistake. " The Court below lost sight of the fact that earlier, while dealing with the case of Babban Tewari, this witness had been condemned by it as a Her. It is, therefore, difficult to swallow without demur the said observation of the learned Additional Sessions Judge and I am firm in my conviction that the witness is not at all dependable. 5. This inference stands strengthened from close scrutiny of his claim, it is in his statement that while he was sleeping outside the house on the fateful night, he saw some persons armed with deadly weapons and when he tried to get up from cot, he was asked by a dacoit armed with a gun, who remained standing by his bed side all along to lie down. He had no option but to submit to the demand and, therefore, he remained on the cot in a lying posture throughout. When the matter was further probed in cross-examination, his reply was, "maine UTHANE KI WSHISHI NAHI Kl. MAI SOYA HI RAHA. " It follows that he kept himself struck to the cot obviously on account of terror and threats given to him by the bandit standing nearby with a gun. It is also in evidence that when some villagers marched towards the bandits from two sides, shots were fired at then causing injurious to some persons. All this was sufficient to affect his power of observation and, therefore, I have no hesitation is concluding that his performance at the test-parade was the result of some external aid. The testimony of the witness should have been discarded by the Court below in its entirety so far as it relates to identification. 6. Once we do not find Sheoji Singh (P. W. 9) as dependable and reliable witness, we are left with the evidence of Shyan Sunder j Singh (P. W. 4) alone. It would not be out of place to mention that Ram Chandra Singh (P. W. 1) who also claimed to have marked the features of the culprits and who had put his hand in the test-parade on the basis of the image retained by him n his mind, has not been found by the Court below to be a truthful or good witness, I do not propose to repeat the reasons there for. 7. Therefore, as pointed out above, there is the claim of Shyam Sunder Singh (P. W. 4) alone in so far as identification is concerned. The witness was not named in the first information report. It is his claim that he left his house on hearing shouts cry and gun fire and Stationed himself in the north-east corner of the house which was being plundered. This is the place where some persons had suffered gun shot injuries at the hands of the bandits when they tried to flash torches there from. The Investigating Officer had shown the names of all the witnesses in the site plan prepared by him on the following day, who were, then, standing in the north-east corner of the house of Ram Chandra Singh. We do not find the name of this witness in. that list. It follows that he was not available to act as witness till the site pan was prepared and I cannot conceive that he continued standing at that place even after some other inhabitants of the village had received gun shots at the hands of the bandits. We have seen when torches were flashed from opposite direction shots were fired causing injuries to some persons. It is difficult to believe that again villagers mustered courage to flash torches and at any rate, one cannot accept the statement of a person that he did not move back to his house even after having seen that injuries had been sustained by some villagers. It is too far-fetched a claim to be seriously entertained that one continued observing the features of the culprits from that place. The learned trial Court has not cared to evaluate and scrutinise his evidence and, therefore, has made a remark that he is a good witness. On an over all assessment, I am of the view that his performance at the test-parade was the result of some external aid. 8. It is, therefore, concluded without hesitation that none of these identifying witnesses, namely, Ram Chandra Singh (P. W. 1) (already discarded by the trial court), Shyam Sunder Singh (P. W. 4) and Sheoji Singh (P. W. 9) is a reliable and truthful witness. Their evidence of identification, is in my opinion, of no value and their convi ction on its basis under Sec. 395 of the Indian Penal Code has to be set aside. 9. It is pointed out on behalf of the State that there was a charge, in the alternative, under Sec. 412 of the Indian Penal Code, also against Shamsher Singh and Surya Bhan Singh. The learned Additional "public Prosecu tor contended that on the basis of the evi dence of recovery of stolen property from their possession, they can be convicted for committing the said offence, when the main charge under Sec. 395 of the Indian Penal Code fails. Yet another submission in the same continuation was that the entire material is on the record and the said two appellants shall not stand prejudiced in any manner what-so-ever if a finding of conviction on the alternative charge is recorded. The learned counsel for the appellants, on the contrary urged that because the trial court has not made any observation with regard to the alternative charge, it will be deemed to that the said two appellants stand acquitted on that charge and because the State has not filed any appeal against acquittal, they cannot be convicted, atleast without being given a notice to show cause why they should not be punished under Sec. 412 of the Indian Penal Code. I do not think it necessary at all to enter into the controversy as to whether or not the said two appellants can be convicted in this appeal on the alternative charge. Suffice it to point out that some clothes from one person and a few utensils of daily use from other were allegedly recovered on the 19th of Apirl, 1976. The learned trial court has referred to this recovery for corroborating his finding that these persons participated in the commission of the crime of dacoity. This is, in my opinion an erroneous approach. True, a presumption under Sec. 114 of the Evidence Act can be drawn provided the recovery is soon after the commission of the crime of theft or dacoity. The proximity in point of time is an important factor to be considered while drawing that presumption. By no stretch of reasoning we can say that a recovery alleged made after 20 days was soon after the commission of the crime of dacoity. However, I have perused the evidence of recovery also and I feel that this evidence about the alleged recovery or ordinary items of daily use does not inspire confidence. We have seen that the police has taken an active interest in implicating innocent persons in the crime of dacoity to show that it has been worked out. No implicit reliance can, therefore, be placed on the testimony of the Investigating Officer (P. W. 16) and a person (P. W. 15) who does not reside in the village in which the alleged recovery was made. A discrepancy in the statement of these two witnesses has already been referred to in the judgment under-appeal. Regard being had to these facts I am of the opinion that the alleged recovery of insignificant items is also farce. Therefore, even the alternative charge must fail. 10. In the result, the appeal is allowed. The judgment and order convicting each appellant under Sec. 395 of the Indian Penal Code with a sentence of 7 years rigorous imprisonment are set aside and each appellant is found not guilty and is acquitted on the charges framed against him in the said trial. The appellants are on bail. Sureties are discharged. Appeal Allowed. .