BINDHA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The four appellants of this appeal, namely Bindha, Habib, Abdul Sattar and Mohd. Raza faced their trial under Section, 395 I. P. C. before the IInd Additional Sessions Judge, Sultanpur. The learned Judge has awarded three years R I. and Rs. 200 as fine or in default of payment to under go six months R I. to each appellant. Apart from the merits of the appeal the sentence awarded to the appel lants is much too inadequate The learned Sessions Judge is expected to be aware of the consistent view of this Court that in the case of a real dacoity, the accused found guilty should not be awarded less than 7 years R. I. There appears to be no good ground why the learned Sessions Judge preferred to award only three years' R. I, and a small amount of fine to each appellant. It has not been disputed before me that at about midnight in the night of March 13/14, 1980 a dacoity by 10 or 12 armed dacoits was committed at the house of Ram Lakhan (P. W. I) in village Gogmau Pure Lochan Tewari P. S. Jagdishpur, district Sultanpur. The dacoits manhandled complainant's mother and nephew and looted property from complainant's house. It is said that amongst the dacoits there were five known persons and they were accom panied by 7 or 8 others. Those known could not be prosecuted most pro bably because they could not be available to the police. The four appellants were prosecuted on the result of test identification. The learned Sessions Judge held that evidence to be trust-worthy and convicted and sentenced the appellants as aforesaid. The learned counsel for the appellants has urged before me that the evidence of identification led against the appellants suffers from legal infirmity, After hearing him I have no doubt in my mind that the evidence of identi fication against Bindha, Abdul Sattar and Mohd. Raza suffers from infirmity. Amongst the identifying witnesses of Mohd. Raza the Prosecution examin ed Ram Lakhan (P. W. 1) and Badri Prarad (P. W. 3) in the Court below. This Badri Prasad is not a good witness because while correctly identifying Abdul Sattar and Mohd Raza at the time of test parade he wrongly picked up Bindha and Habib. His performance is thus fifty percent which can never be considered to be a good result. There is thus only one identification against Raza, which, taken by itself and not supplemented by any other evidence, cannot form a sound basis for maintaining the conviction of Mohd. Raza. The infirmity in the test identification of Bindha and Abdul Sattar is that both of them have pox-pitted faces. It was considered to be a distinguish ing feature of these suspects by the learned Magistrate who held the test identification, namely Sri Ramanand Singh (P. W. 5 ). He has noted in column No. 3 of the identification memo that Bindha and Abdul Sattar had pox-pitted face. In the corresponding column of the memo meant for noting precautions the learned Magistrate however, did not mention that pox- pitted under-trials were mixed in the parade of these two appellants. He simply noted that paper-chits were pasted upon the distinguishing marks of the suspects. In the witness-box the learned Magistrate attempted to state that pox-pitted persons were mixed with the suspects in the parade. That statement of the learned Magistrate cannot be safely relied upon. In State v. Ram Auttar Chawdhry and Others, ( A. I. R. 1955 All. 138) a Division Bench of this Court laid down that where the Magistrate did not make any note in the identification memo of the distinctive marks of the accused his subsequent statement in Court cannot improve the situation and cannot be believed to come to the conclusion that due precautions were taken for holding test identification of the accused. These observations of the Division Bench help Bindha and Abdul Sattar appellants. I, therefore, find it impos sible to maintain their conviction on the basis of the evidence of identification. The identification of Habib appellant, however, suffers from no infirmity. Ram Lakhan and Hemrai are the two witnesses who identified this appellant in jail and also in the trial Court. Their value is good. They have stated on oath that they did not know this appellant since before, and had seen him amongst the dacoits and they had not seen him anywhere between the occur rence and the test identification. There is no reason for these witnesses to falsely implicate Habib. Sufficient opportunity, ti me and light was available to these witnesses to see the dacoits at the time of occurrence. The faces of all the dacoits were open. There is complete lack of evidence on record to show that Habib all along remained 'baparda'since the time of his arrest and till he was confined to jail. Krishna Dutt (P. W. 5) had at one stage during his examination stated that he had heard in the village that the Darosha had brought one Badmash at the house of Ram Lakhan but there is nothing in his statement to pin-point that Badmash. Even Habib did not suggest in fail or anywhere else that he was taken to Ram Lakhan's door. I am therefore of the opinion that the evidence of identification led against Habib does not suffer from any infirmity and his conviction and sentence ordered by the trial Court cannot be interfered with. In the result the appeal of Bindha, Abdul Sattar and Mohd. Raza appellants is allowed. Their conviction and sentences ordered by the trial Court are set aside. They are in jail. They shall be set at liberty forthwith unless their detention is required in connection with any other case. Fine, if already paid by them, shall stand refunded. The appeal of Habib is dismissed. His conviction under Section 395, I. P. C. and sentence of three years' R. I. plus fine of Rs. 200 or in default to undergo six months. R. T. are upheld. He too is in jail. He shall remain there to serve out his sentence. .