DULAREY Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal by one Dularey who has been convicted by the learned Addl. Sessions Judge, Etawah, Under Section 395/397 I.P.C. and Section 19(f) Arms Act for committing a dacoity along with five or six other persons on the night between the 21st and the 22nd December 1951 at the house of Sheo Balak in Nagla Manno, which is a hamlet of Kanno within police station Phaphund, in the district of Etawah, and for being in possession of a kanta during the commission of the aforesaid dacoity.

(2.) THE evidence against the applicant mainly consist of his identification by five witnesses, namely, Sheo Balak, Ram Parshad, Hira Lal, Chaturi and Matadin. The accused was arrested on the 8th January 1952 and his identification proceedings were held in the District Jail, Etawah, on the 18th March 1952. It appears from the identification memo (Ex. P -27) that each of the five witnesses who identified him in the test identification in the jail committed one mistake, with the result that each of those witnesses committed 50 per cent mistakes during the identification. The learned Sessions Judge, in spite of the unsatisfactory nature of the identification evidence so far as this accused was concerned, has considered it fit to rely on that evidence and has convicted him of the charge Under Sections 395/397 I.P.C. In view of the mistake committed by each of the above witnesses I am of opinion that they can hardly be called good witnesses and it will be very unsafe to convict the accused on such evidence.

(3.) IN my opinion the evidence on the record which has already been referred to above is wholly insufficient for the conviction of the Appellant either Under Sections 395/397 I.P.C. or Under Section 19(f) Arms Act. It may be mentioned here that the convention Under Section 19(f) Arms Act is not based on the recovery of the kanta from the possession of the Appellant on his arrest. It is based on the fact that the prosecution witnesses while identifying the Appellant stated that he was the person who was armed with the kanta. The other evidence in respect of this charge was that in the first information report it was mentioned that the accused Wazira had stated that the Appellant was armed with a kanta. I have already held above that the evidence of identification is of a very unsatisfactory nature and cannot be relied on in support of the conviction of the Appellant Under Sections 395/397 I.P.C. When the conviction of the Appellant Under Sections 395/397 I.P.C. cannot be maintained in view of the unsatisfactory nature of the identification proceeding, the conviction Under Section 19(f) Arms Act, which is based on the same evidence, is also not sustainable.