AKBAR ALI Vs. STATE OF U P

JUDGEMENT

(1.) These are two con nected Criminal Appeals. The appellants in Criminal Appeal No. 2232 of 1977 are Ram Narain, sri Ram, Ram Shanker and Ram Jas. The sole appellant in the con nected Criminal Appeal No. 2231 of 1977 is Akbar Ali. The five appellants afore said along with Pardeshi and Hubai were indicted before the court of Sessions in connection with a dacoity which is said to have occurred at village Saharanpur, Police Station Kaiwan, district Basti in the night between December 25 and 26, 1975. Hubai was charged for the offence punish able under Section 412 I. P. C. The remain ing co-accused in the case were prosecuted for the offence punishable under Section 395 I. P. C. The indictment against Akbar Ali appellant was in Sessions Trial No. 101 of 19/7. The remaining accused stood their trial in Sessions trial No. 148 of 1977. Since both the trials related to the same in cident, the Sessions Judge recorded evidence in Sessions Trial No. 101 of 1977 and dis posed of the two Sessions Trials by his judg ment and order dated September 26, 1977. All the appellants were convicted for the offence punishable under Section 395 I. P. C. and were sentenced to undergo R. I. for a period of five years. Similar sentence was awarded to Pardeshi. Hubai, co-accused, was acquitted of the charge under Section 412 I. P. C. only the appellants have ap proached this court fcy filing two separate appeals. The first information report of the inci dent was lodged by Namcleo at police sta tion Kalwari on December 26, 1975 at 7. 45 a. m. Briefly stated, the first information report disclosed that the house of one Babu Lal was adjacent to the house of Namdeo, the first informant, At about 12 in the mid-night on December 25/26, 1975, Babu Lal was sleeping in the Verandah of his house. A number of dacoits came to the house of Babu Lal and tied his neck with a piece of cloth. They enquired from Babu Lal about the whereabouts of his son. This query is said to have been replied by Babu Lal by stating that his son Ram Chet had gone away. The door of the house of Babu Lal was forced open by the miscreants while three of them remained with Babu Lal. Ram Chet was sleeping inside the house. He was awakened by the noise created by breaking open of the outer door of his house. The miscreants then inquired from Babu Lal about the window in his house and proceeded in that direction. There they found Shanker Lai's wife and they caught hold or her hand and screwed it causing pain to her. In the meanwhile, Ram Chet mounted the tiled roof of his house and jumped in front of the house of Narndeo, first informant. The wife of Namdeo had awakened Prem Prakash and entered her house and closed the door from inside. The house of Namdeo is immedi ately west of the house of Babu Lal. It is then stated in the first information report that Ram Chet and Namdeo shouted for help which attracted Bhup Narain, Ram Sunder, Ram Niwas, Kedar, Anwar and others. The miscreants broke open the door of Namdeo's house and looted his pro perty. Om Prakash, son of Namdeo, caught hold of a dacoit who, however, managed to make good his escape. The dacoits were flashing their torches and the witnesses who had also arrived were lighting their respec tive torches and they were identified in the said light. It Js stated that on the arrival of a large number of persons the miscre ants filed away from the scene of occur rence but before they could make good their escape, Daya Ram gave a Lathi blow to one of the miscreants. None of the dacoits, however, could be apprehended and each one of rhem managed to run away. It is evident from a bare reading of the first information report that there is no mention in it of any fire arm which may be in possession of the dacoits. It is nowhere stated that any gun or revolver was erred at the time of the occurrence. Ram Chet had awaken ed only by hearing the sound of the break ing open of the door of his house. The rest of the villagers were awakened on account of the hue and cry raised by Ram Chet and Namdeo. I shall presently point out that there is improvement in the prosecution case in so far as this point is concerned. An other feature which emerges from a reading of the first information report is that none of, the miscreants were identified at the time of the occurrence although they came in close contact with a number of persons such as Babu Lal, Shanke Lal's with Prem Prakash, Namdeo's wife, Om Prakash and Diva Ram In view of the omission of the names of the miscreants from the first in formation report, the prosecution had per force to rely on identification evidence. The investigation in the case was con ducted in the first instance by Sri V. C. Rai, S. I. who had died before the commencement of the trial before the court of Sessions. It was then proceeded with by Sri Noorul Ain, S. I. Alter completing the investigation, S. I. Noorul Ain submitted the charge-sheet against the appellants in the two connected Criminal Appeals and also against Pardeshi and Hubai. It may be stated that all the appellants in Criminal. Appeal No. 2232 of 1977 and Pardeshi were arrested on January 23, 1976. They were put up for identification in the Jail at Basti on February 13, 1976. Akbar Ali appellant in Criminal Appeal No. 2231 of 1977 surrendered himself in the court on April 22, 1976. Identification proceedings concerning this appellant were conducted on May 27. 1976. The result of identification and its nature shall be discussed by me pre sently. At this stage, it may be mentions that the prosecution has examined 17 wit nesses at all, Sri Daya Shanker (PW 1) is the Magistrate who conducted the identifi cation proceedings concerning Akbar Ali appellant. Sri Tara Prasad Rai (PW 16) is the Magistrate who conducted the identifi cation parade concerning the appellants in Criminal Appeal No. 2232 of 1977. Namdto (PW 3) Ram Chet (PW 4), Ram Sundar (Pw 5) Vishwanath (PW 6) are the identifying witnesses. The Investigation Officer Sri Noorul Ain has appeared as PW 15. The remaining prosecution wit nesses either give link evidence or evidence of a formal nature. The sessions Judge has been impressed by the identification evid ence produced on behalf of the prosecution and has recorded an order of conviction against the appellants in the two criminal appeals. The correctness of the assess ment made by the Sessions Judge regarding the prosecution evidence has been strongly assailed before me. I have already stated that persons who had the best opportunity of observing the miscreants from a close quarter are Babu Lal, the wives of Shanker Lal and Namdeo, Prem Prakash son of Namdeo, Om Prakash and Daya Ram. None of these persons has, however, been examined on behalf of the prosecution. Babu Lal was put forward as an identifying witness at the identification parade conducted on February 13, 1976 but he was unable to identify any one of the ap pellants. None of the other persons named above were called upon to identify the ap pellants This is an infirmity which is in herent in the prosecution case. This infir mity cannot be allowed to go unnoticed. identification parade is actually a part el: the investigation. Identification proceed ings conducted by a Magistrate inside the Jail only confirms the identification of the accused made by the prosecution witnesses inside the court The result of the identification proceedings only corroborates the identification made in the court and lends assurance to it. Certain tests have been laid down by the courts from time to tune concerning the worth of identification evid ence. All these tests are based on experi ence and an, empirical in nature. It has been held (i) that an identification proceeding should be conducted within a rea sonable time of the actual occurrence: (2) it should be proved that the witnesses have reliable power of observation which is to be judged, inter aha, from the fact that the parade was not made too easy for them in order to enable him to pick out the accus ed; (3) that the statement of the witness that he did not know the accused from be fore has to be carefully scrutinised; (4) it should be established that the witnesses were not given any opportunity to see the accused after their arrest and (5) finally it has been held that an identification parade can be attached value by if die prosecu tion witnesses had a fair opportunity of ob serving the accused at the time of occur rence. It may be observed that identification evidence may turn out to be evidence of a trick nature. This it, illustrated by the case of Dallison v. Caffery 1965 (1) Queen's Bench 348. In that case, Dalhson had filed a suit for the recovery of damages against Inspector Cafl'cry. A lady typist was working in a solicitor's office. She went to the Bank and collected 173 pounds and put the amount in her safe. The door of this safe was closed by her but it was not locked. Just as she was living for lunch, a man came in and the typist asked him if she could help him. The man turn ed and looked at her. He told her that he had come in a wrong office and that he needed no help. The typist went upstairs where the heard a bang and the sound of foot steps running down-stairs. She imme diately returned and found that 173 pounds which she had placed in the safe were mis sing. She immediately reported the matter to the police. At the police Head quarters she was show a number of Photographs. One of the Photograph was that of Dallison and she said that he was the criminal who had robbed her. Ultimately Dallison was put up for identification at a parade. He was;nixed up with 11 other person of simi lar description. The typist correctly picked him out as the culprit, ft may be stated that Dailison had pleaded alibi but the pro secution did not accept it initially. On fur ther investigation, it came to light that the defence offered by Dallison was correct and the identification made by the typist was patently ddoneous. In consequence the prosecution offered no evidence at the trial and a verdict of not guilty was entered in favour of Dallison. It was in these circum stances that Dallison sued Inspector Caftery for damages for wrongful arrest. It is un necessary to further into the matter. Suffice it to say that this case discloses that how erroneous identification evidence may be and if accepted may lead to great injus tice. The need to treat such identification evidence with care and caution is, therefore, imperative and can not be over stressed. I have briefly outlined above certain factors which are judicially recognized in the assessment of evidence falling under this description. Before coming to those criterions the testimony rendered before the court by the identifying witnesses has to be subjected to the ordinary tests which are applied in the assessment of evidence in a criminal case. There is and can be no magic in the identification made by the wit nesses at a identification parade inside the Jail it is unfortunate that the Sessions Judge in the instant case has subjected the prosecution evidence to mechanical scrutiny. He has lost sight of the above fact and also of the fact that identification evidence is generally evidence of a weak nature. Namdeo (P. W. 3) has stated that he heard the sound of a gun shot and on hear ing the same he awakened from his slumber. He did not support the version stated by him in the first information report that his ton Om Prakash had caught hold of one of the miscreants who managed to disengage himself from the hold. He also does not support the fact disclosed in the first infor mation report that Daya Ram had given a lathi blow to one of the miscreants. Nam deo, according to his own admission, is a political worker. He has conceded that his son has a shop at Gaughat 10 which place Akbar Ali appellant belongs. He has fur ther admitted that he has got a house at Gaughat and that the distance of Gaughat from Sahararpur is about 3 miles. It may be stated that the appellants of Criminal Appeal No. 2232 of 1977 are all residents of village Bishanpur which is a village at a distance of more than two miles but less than three miles from Saharanpur. Some of these appellants actually reside at Gaughat. The Sessions Judge was of the opinion that village Gaugbat and Bishunpur being more than two miles away from village Saharan pur, it could not be held that the appellants were known to the prosecution witnesses from before. True it is that there are some decisions of this court which support the view taken by the Sessions Judge. How ever, the accelerated mode of travel from one place to another can not be lost sight of Gaughat is a business place where the people of the surrounding villages come to make purchases. It is quite possible for the prosecution witnesses to have seen the ap pellants either at Bishunpur or at Gaughat. The test or two miles laid down in the earlier decision of this court is not an inflexible test for coming to the conclusion that the: identifying witnesses may have been known to the accused. The test of distance varies from case to case and in the present age all that can be laid down is that the resi dence of the accused should be within a rea sonable distance tram the residence of iden tifying witness in order to make the iden tification evidence suspect. The identification made by Namdeo (P. W. 3) is 50% correct and that by Vish-wanath (P. W. 6) is 60% correct. These two witnesses can not be said to be good identifying witnesses. True it is that identi fication by Ram Chet (P. W. 4) and Ram Sunder (P. W. 5) is 75% correct. How ever, the file of the case can not hang by the percentage of the correctness of the pro secution witnesses. The court can not close its eyes to the surroundig circumstances, i have already stated above that the persons who actually came in contact with the alleg ed miscreants have not examined as prose cution witnesses in the case. Namdeo (P. W. 3) Ram Chet (P. W. 4), Ram Sunder (P. W. 5) and Vishwanath (P. W. 6) are said to have collected behind the Charni situated in front of the house of Namdeo (P. W. 3) at the time of occurrence. They claimed to have seen the miscreants with the help of torches which were being flashed by them and the miscreants. The source of light disclosed by these witnesses is wholly inade quate and Joes not impress me. In case the identifying witnesses had collected behind the Cbarni, they could not have possibly es caped the wrath of the miscreants since these witnesses could be spotted without any difficulty, as on their own admission, they were flashing torches. According to the prosecution witnesses, besides them selves, a number of persons had collected behind the Charni. Each of the witness and other persons had a lathi or at least could procure one. There is no evidence to show that the appellants or any one of their com panions had a gun with him. In these cir cumstances the people of the village could have overwhelmed the miscreants by sheer force of numbers. The very fact that the prosecution witnesses named above stated that they remained concealed behind the Charni is a pointer to the fact that they were PO where near the scene of occurrence and were at some distance from there. They had no opportunity to observe or identify the appellants as alleged by them. Two other factors may also be pointed out. Vishwanath (P. W. 6) is not named as a prosecution witness in the first infor mation report. Little reliance can, there fore, be placed on his evidence. Ram Shanker, one of the appellants in Criminal Appeal No. 2232 of 1977 was found to be squint eyed when examined before the court. Sri Tara Pd. Rai, Magistrate, who con ducted the identification concerning appel lants Ram Narain, Sri Ram, Ram Shanker and Ram Jas, has admitted that he did not take any precaution to conceal the squint or to mix persons of similar description at the time of identification parade. The identifi cation of Ram Shanker therefore, is wholly worthless and of no value. The Sessions Judge has held that the squint may have developed after the occurrence. There is no evidence in support of this finding which at the best is a conjecture. For the reasons stated above, the two appeals are well founded and must succeed. Criminal Appeals Nos. 2231 of 1977 and 2232 of 1977 are hereby allowed. The judgment and order of the Sessions Judge concerning the appellants in the two con nected appeals is hereby set aside. The ap pellants are acquitted of the charge under Section 395 I. P. C. The appellants are on bail. Their bail bonds are discharged and they need not surrender. .