ATAR SINGH Vs. STATE

JUDGEMENT

(1.) Atar Singh son of Kanhaiya Lal resident of Kanpur, Police Station Bharthna, district Etawah aged 21 years has filed this appeal against his conviction under Section 395, I. P. C. by Sri R. C. Agarwal, learned Sessions Judge Etah on September 28, 1977 in Sessions Trial No. 362 of 1976. Appellant was sentenced to seven years R. I. Prosecution story briefly stated is that on the night of July 28 and 29, 1976 at about mid-night a dacoity took place inside the house of Bindraban informant P. W. I in village Gopiganj which is at a distance of two miles from police Station Bharthana. Property worth Rs. 5000j- was looted in this dacoity by seven or eight bandits one of whom was nominated in the report lodged at Police Station by informant Bindraban on the next morning at 8. 30 a. m. First information Report Exh. Ka 6 was drawn by Head Constable Mohd. Ayub P. W. 4 who registered the case in General Diary vide Ex. Ka. 7. Sri Nasiruddin Siddiqai P. W. 6 the then S. I. took up investigation forthwith and interrogated Bindraban at Police Station. As Bindraban sustained injuries during occurrence he was sent for medical examination with injury letter. His injury report is Exh. Ka. 11. Investigator reached the scene of occurrence and prepared site plan Exh. Ka. 12. Wads and discs Exh. 1 found on the spot were also sealed up vide Exh. Ka. 2 Wooden box from which the articles were looted was entrusted to Shiv Fatan brother of informant vide entrustment memo Exh. Ka. 3; lantern and torch of informant were also examined and found in veiling order. The lantern is alleged to have been burning at the tune of occurrence inside the house of informant. The lantern and torch were made over to Shiv Ratan vide entrustment memo Exh. Ka. 4. Witnesses Ram Sewak P. W. 2 and Shiv Ratan etc. were interrogated. Site Plan was pre-paced. It was on August 11, 1976 that investigator Sri Nasiruddin along with S. I. Sri Suresh Chandra Sharma and other Police personal were on perambulation. They reached Devrasi culvert at 3. 30 a. m. when they found four or five bandits proceeding on the blank of carnal towards north an encounter took place in which Atar Singh appellant and one another were arrested. A country made pistol and cartridges were also recovered from the possession of appellant who disclosed his complicity in this crime and so was placed under pardah and brought to Police Station and lodged there on the next day (August 12, 1976) 4. 10p. m. vide G. D. entry Exh. Ka. 8 drawn by Head Constable Ayub Khan P. W. 4. The appellant was sent to District Jail Etawah on August 13, 1976 at 8. 10 a. m. under Pardah through constable Raghubir Singh P. W. 5 who lodged him in District Jail Etawah on the same day. He was put up for identification on August 30, 1976 by Sri S. N. Raj-pal P. W. 8 Executive Magistrate after taking all necessary precautions to ensure fair identification. He- was correctly picked up in the test identification parade by informant P. W. 1 and Ram Sewak P. W. 2 who did not commit any mistake and who have been examined in this case vide memo Exh. Ka. 14. On completion of investigation charge-sheet Exh. Ka. 5 was submitted against appellant by Rameshwar Dayal Sharma P. W. 3. In his statement appellant expressed ignorance about the factum of dacoity at the house of Bindraban on the mid night of July 28 and 29, 1976; he denied his participation in the occurrence; he also denied to have been arrested on the culvert but alleged that he was arrested from his house by S. T. who took him and shown him to the identifiers in village Gopiganj for about two hours. He was falsely involved in the No evidence was adduced in defence. Prosecution in support of their case examined ten witnesses, Incriminating evidence on record consisted of statements of Bindraban P. W. 1 and Ram Sewak P. W 2 who are the two identifiers and who correctly picked up the appellant in the test identification parade. They were believed by learned trial Judge who recorded the conviction and sentence aforesaid. Aggrieved by the decision appellant has filed this appeal. I have heard learned counsel for the parties and perused the record. 'the appeal is allowed for the following reasons. The appellant has not been nominated in the report; he was not arrested on the spot; nothing incriminatory has been traced to the possession of the appellant. His complicity rests on identification evidence only. The identification evidence when closely scrutinised in this case does not hold water for the following reasons: (a) Atar Singh appellant was arrested according to the allegations of investigator on August 11, 1976 at 3. 30 a. m. he was placed in lock up on August 12, 1976 at 4. 10 P. M. i. e. after (more than 12 hours ). The distance which had to be covered by the police party was about 8 miles. Sri Nasiruddin P. W. 6 who was material witness about the arrest of the appellant himself mainly investigated the case. No good reason was given by Sri Nasiruddin as to why the investigation was conducted by him. In order to inspire confidence the investigation should have been conducted by another officer vide Bhagwan Dayal Pyare Lal Jha v. State A. J. R, 1968, AM 290, where it was observed that where the same officer who claims to be a material witness investigates his evidence has got to be looked with great caution. In his cross-examination he conceded that the aforesaid culvert which was the place of arrest lies towards north-west of Police Station; village Khanpnr residence of appellant also lay towards west of police station at a distance of seven miles; village Gopiganj was also at a distance of two and half miles towards north-west from police station. He further conceded that a Jeep was available at the Police Station during that night to cover aforesaid distance. He denied the suggestion that they brought the appellant in that jeep. Obviously it could not have been possible on the part of appellant to have established to the hilt that he was shown to the identifiers in village Gopiganj but the circumstances which are on record got to show that there was inordinate delay in carrying the appellant from the place of arrest upto Police Station. The residence of identifiers also lay on the way and as such the allegation of appellant that the aforesaid time was utilised by the police personnel in showing him to identifiers at Gopiganj cannot be regarded as flimsy. In Shiv Ratan v. State 1967 A. C. C. 344, it was observed: " It is not necessary or possible for the accused to prove affirmatively that he was actually shown to prosecution witnesses. It would be enough if he points out the circumstances which throw doubt on the fairness of identification proceedings and of his being kept Baparda from time of arrest till his admission into Jail. " (b) While appreciating the identification evidence question of light and opportunity for identification assumes importance. As the occurrence of dacoity took place during night so the question of light assumes importance in this case. Informant Bindraban P. W. 1 testified that when the bandits intruded his house he and his brother Shiv Ratan were sleeping in the outer verandah of their house and the lantern was burning nearby towards north of the main entrance. The place of lantern has been shown by letter 'r' in site plan Exh. Ka 12. He further testified that two bandits were in police uniform and awakened him and told that his house was to be searched. As soon as he got up he was attacked. Shiv Ratan was also held by the bandits, he was tortured by bandits who enquired about the riches. Number of dacoits was 7 or 8 who were equipped with pistols and lathis. Meanwhile the main door of his entrance was unchained by bandits and he was carried in side his house; he informed the bandits about the amount of Rs. 5000]- placed in the box: he also informed them about the gold chain and ring; he was also relieved of his writ watch. He prevacated about the manner in which he was looted. In his examination in chief he alleged that as soon as he got up from the cot he was held by the dacoits who began to beat him with lathis and rods; he was thereafter taken inside the room; he pointed out the cash placed in the box; he also disclosed the place of gold chain. He raised alarm; his family members also shouted and his co-villagers were attracted; some of them stood towards well while others stationed themselves towards south behind the wall they flashed torches. He claimed to have identified the appellant in the light of lantern and torch. In cross-examination he alleged that two dacoits were in police uniform while the remaining were in underwear and slag-lets. The dacoits were shooting while the crime was in progress and he saw them in utter dismay He was carried inside the room; before the investigator he did not allege about his being taken inside the room and so again prevaricated and could not explain a way the inconsistency. He further testified that he was released by dacoits only when they decamped and not earlier; throughout this period he was tortured and dragged. The lantern was hanging towards north of his main entrance at 4-5 cubits high. There was no blackening on the wall; light of lantern was available inside the verandah which was 23 fit. long and 9 ft. wide. He conceded that he did not know Atar Singh appellant from before although his village was at a distance of six miles towards west from the residence of the witness. Thus a careful scrutiny of his testimony shall go to disclose that he had hardly any calm opportunity for recognition of the face of appellant when throughout the period he was being carried to and from a mentally disturbed state. The light of torches could hardly penetrate the room or the verandah; lantern was not produced in court at the time of his deposition; he could not give the dress of the appellant or the role assigned to him during the crime or any distinguishing or peculiar feature in the face of appellant which could have impressed him to render his testimonial assertion cogent. He and appellant had a common Police Station; under such circumstances the opportunity' by the witness for identification of appellant during dacoity could have been hardlv sufficient. At the time of test identification parade he did not mention before the Magistrate about the role played by appellant during this crime. So the evidence on record does not justify the inference that informant had at least a fair if not a good opportunity of seeing the appellant. The next witness is Ram Sewak P. W. 2 who claimsd to have been attracted from his door on that mid night on the outcry of the inmates of the house of Bindraban; he reached towards north-west of the house of informant and stood behind the well; Munshi Ram and Ram Sewak Pandit had also reached there, ten or twelve torches were being flashed; weeping and wailing was going inside of the house of Bindraban they challenged the dacoits who fired shots towards them. The dacoits ran away towards east-south; the witness claimed to have identified appellant in the light of lantern and torch. He denied to have seen the appellant earlier. In cross-examination he alleged that the lantern was burning towards north inside the verandah at a height of four feet or so. A look at site plan shall go to disclose that the lantern was not hanging by the northern wall of the verandah; the place where the witness stood at time of occurrence has been shown by letter 'd' insite plan which was at a distance of about 20 steps. It is in the statement of informant that the witnesses who were outside were net visible to him but he recognised them from the timbre of their voice. Under such circumstances the light of lantern could not have been available to the witness. The witness did not produce his torch in court at the time of his deposition and could not offer any explanation for this omission. He further conceded that throughout the dacoit he kept himself concealed behind the wall to save his skin. It is further significant to note that dacoits who were aware of the shots which were being fired by witnesses did not stir out during the occurrence but they ran away towards south-east. Thus the witness could have got a momentary glimpse of appellant while running in a group of eight bandits or so. Appellant did not come face to face with the witness and under such circumstances it is difficult to believe that the impression gained by the witness at that time could have been fairly strong so as to enable him to pick up the appellant during test identification parade conducted on August 30, 1976. Thus this witness had hardly any opporcunity for identification of the appellant during this crime and his testimony is safely discardable. Sri S. N. Bajpai P. W. 8 conducted the test Identification Parade on September 30, 1976 when he mixed appellant with similar suspects. He further conceded that four other suspects were also to be picked up in the same parade. Thus the Magistrate lined up all the suspects for identification together. U. P. Government have issued elaborate instructions as to how the identification proceedings should be held. These instructions can be found in Appendix XX of U. P. Manual of Government Orders 1954, Section A deals with identification of accused persons while Section B deals with identification of property. It is not clear from the statement of Magistrate as to whether the Parade of Atar Singh was separate from the parades of four other suspects viz. Meedu, Mahipal, Shy am Singh and Ram Swa-rup. Identification memo Exh. Ka 14 shows that the result of identification was noted at one place of all the parades which can justify the inference that all the suspects were lined up for identification together and the result was noted at one place. Separate parades about each suspect should have been arranged and the results should have been separately noted on each sheet. The practice to hold a single parade is fundamentally wrong. In a line up in which two or more suspects are put up n witness may identify one suspect and pick out an innocent man and there will arise the problem of judging how the identification of the suspects is effected if at all by the picking out of the innocent man. When several suspects are put up for identification care must be taken to see that the same innocent men are not mixed with each suspect otherwise the benefit of holding separate identification proceedings would go away. Evidence of identification based upon personal impression of identifiers which is relevant under Section 9 of Indian Evidence Act does call for caution before acceptance. Some of the most tragic miscarriage of justice have been made due to testimonial errors in this field. Prof. Wigmore observed in his Principles of Judicial Proof: " It calls for caution, in that testimonial assertions to identify must be accepted only after the most careful consideration. On the one hand the process of recognition being often more or less sub-conscious. It may be quite correct, even though no specifications of marks can be given as reasons for recognition. On the other hand the risk of injustice being so serious, the great possibilities of lurking error should cause hesitation and the investigator should seek to establish as many marks as possible that may serve circum-tantially to check the testimonial assertions. At this point there may be a logical value in number of witnesses. The process also calls for precaution in taking measures before hand objectively to reduce the chances of testimonial error. (i) At the time of original observation, the investigator should obtain from the observer a note of any marks of the personality observed so that there will be less need to depend later on the observers memory. (ii) At the time of presenting for recognition whether upon arrest or trial in the court room measures should be taken to increase the stimulus of association and to decrease the risk of false suggestion (A) the persons to be identified should be clothed and placed 'so far as feasible' in the same condition as when originally observed. (B) The person to be identified should be presented in company with a dozen others of not too dissimilar personality. " As I perused the statement of investigator Sri Nasiruddin P. W. 6. I did not find that he interrogated P. Ws. 1 and 2 to ascertain the marks or stature like colour or features of the appellant so as to render testimony of identifiers cogent and dependable. In Anwar and another v. State 1961 Cr. L. I. 25, it was pointed out: " When the witnesses were interrogated by the investigating agency, they again failed to give any description of dacoits. Obviously the investigating agency _ must have interrogated these witnesses with a view to trace out the offenders and they must have questioned the witnesses about the features of dacoits. If in spite of such questioning the witnesses could not give any description, it only presents two possibilities (i) the dacoits were not well seen and therefore the witnesses could not give any description in view of the light that existed or due to encounter etc. " In Perthi and another v. State 1966 Cr. L. J. 1370, it was heid: " where the test identification parade takes place after a number of months, there should be some special reason, such as some marked peculiarity in the features of the suspect which had been described before hand (underlined by me) by the identifying witnesses in order to inspire confidence in evidence of identification. " Ht conceded that he did not stand inside the verandah hear the peg by which the lantern is alleged to have been hanging to see as to whether the witnesses towards the wall could have been visible from there or not. He could explain as to why he took so many hours in covering the distance of seven or eight miles in between the Police Station and the culvert of Deorasi. The moment the courts find that investigation is tainted it has to be on us guard. While small delinquency may not destroy the evidence of identification but where there were major delinquencies and the investigation is tainted it would be against the rule of prudence to accept the evidence of identification. So far the aforesaid reasons the identification evidence as discussed above has to be discarded. Thus the appeal is allowed. The conviction and sentence recorded by learned trial Judge are set aside and the appellant is acquitted of the charge under Section 395, I. P. C. He is on bail. He need not surrender. His bail bonds are discharged. .