HAZARI Vs. STATE OF U P

JUDGEMENT

(1.) These two connected appeals are against the judgment and order dated 24. 11. 83 of learned Additional Sessions Judgs, Kheri, convicting the appellants under Section 396 I. P. C. and sentencing them to 10 years rigorous imprisonment. The case of the prosecution was that on the night between 19/20. 10. 82 at about midnight 11 or 12 dacoits committed dacoity at the house of Bhagwati Prasad at village Jhandi Police Station Kheri, district Kheri and looted his valuables. Bhagwati Prasad, his son Jag Pratap and uncle Ram Bharosey were sleeping under a Chappar outside the house and the other inmates of the house including Ram Dayal brother of Bhag wati Prasad were sleeping inside the house where the lantern was burning. When the dacoits started lotting. Ram Dayal came out of the house and raised alarm whereupon Bhagwati Prasad informant Jag Pratap and Ram Bharosey woke up and they also made an out cry for help. On hearing their alarm several persons of the village assembled. Shripal one of the rescuers set fire to heap of Pual kept towards north of the main door of the complainant's house and its flames produced sufficient light. Some of the res cuers had torches and they flashed them. The dacoits committed dacoity for about an hour. Some of them had also electric torches and they were flashing them at the time of commission of dacoity. The faces of the dacoits were uncovered and they were seen in the light of the electric torches buring Pual and lantern. After commission of the dacoity the dacoits went away towards the west with the booty. While they were going away the village people challenged them whereupon one of the dacoits fired due to which Ram Bharo sey received injuries and died on the spot, Bhagwati Prasad lodged a report of the' incident at police station Kheri on 20. 10. 82 at 8. 30 a. m. The police station is at a distance of about 12 miles from the place of incident. On that report a case under Section 396 I. P. C. was registered S. O. D. N. Singh investi gated the case. He went to the place of occurrence sent the dead body for post mortem examination and interrogated the witnesses, he examined the lanterns, electric torches and ashes of burnt Pual and prepared necessary memos. He found blood stains where the dead body of Ram Bharosey was lying. He took blood stained, and non-blood stained earth from there and prepared its memo. He arrested Paikarma appellant on the night between 14/15. 11. 82 in connection with some other offence and on interrogation came to know about his complicity in the aforesaid dacoity. On further interrogation he came to know about the complicity of other miscreants including Hazari appellant. Hazari appellant was arrested on 2. 12. 82. Both Paikarma and Hazari were sent to District Jail after their arrest. they were put up for test identification on 11. 1. 83 along with some other suspects. Paikarma was correctly identified by six witnesses, out of them Shripal (P. W. 5) Jag Pratap (P. W. 3 ). Sunder Lal (P. W. 4) and Bhagwati Din (P. W. 5) were examined. Hazari was correctly identi fied by three witnesses and all of them Shripal (P. W. 2), Jag Pratap (P. W. 3) and Bhagwati Din (P. V7. 5) were examined as witnesses. The accused appellants denied their participation in the dacoity and pleaded their false implication. Learned Additional Sessions Judge held that dacoity with murder was committed at the house of Bhagwati Prasad on the relevant night by 11 or 12 dacoits and Hazari and Paikarma appellant were among them. He, therefore, convicted and sentenced them as mentioned above. Feeling dissatisfied with this order they have preferred the present appeal. The learned counsel for the appellants did not challenge the factum of dacoity. He argued that the conviction of the appel lants is based on identification evidence which is not reliable because there was no sufficient light for the witnesses, to see and mark the features of the appellants. I do not agree with this submission. From the statements of Bhagwati Prasad (P. W. 1), Shripal (P. W. 2), Jag Pratap (P. W. 3), Sunder (P. O. 4) and Bhagwan Din (P. W. 5), it is evident that Pual was collected towards north of the house of Bhagwati Prasad and Shripal (P. W. 2) set fire to it and flames which came out furnished suffi cient light at the time of dacoity. The statement of these witnesses have remained consistent on this | point. S. O. , D. N. Singh (P. W. 10) found heap of ashes where the Pual was said to be burning. He took sample there from and prepared its Fard Ext. Ka-15. There is no reason to disbelieve the statement of the Investigating Officer on this point. The Investigating Officer has shown this place by letter 'c' in the site plan prepared by him and the index given in the site plan Ext. Ka-17 further corroborates the aforesaid evidence of the prosecution. In the First Information Report also this fact has been mentioned. From the testimony of the aforesaid witnesses of fact it is clear that Pual was collected there in sufficient quantity and it gave light for several minutes at the time of dacoity. It, therefore, appears established that there was light of flames of burning 'pual at the time of occurrence. Bhagwati Prasad (PW 1 ). Shripal (P. W. 2), Jag Pratap (P. W. 3), Sunder (P. W. 4) and Bhagwrndin (P. W. 5) have stated that Ram Bilas, Sunder Lal son of Jawahar Lal Jagannath and Sunder Lal son of Shripal (P. W. 4) had electric torches and they flashed them all the time of occurrence. The aforesaid witnesses further stated that they saw the faces of the dacoits in the light, of those electric torches. The S. O. , D. N. Singh (P. W. 10) inspected their torches and found them in working condition. He has prepared their Fard Ext. Ka-16. It is mentioned in the First Information Report that the aforesaid four persons were carrying electric torches and flashing them at the time of occurrence. There is nothing in the statement of the prosecu tion witnesses creating suspicion about their veracity in this connection. It, there fore, appears established that there was light of four electric torches of the rescuers at the time of incident. The flames of Pual and light of these electric torches must have furnished suffi cient light to the witnesses to see and mark the features of the dacoits. Learned counsel for the appellants could not point out any circumstances at the time of arguments as to why this part of the prosecution case should not be believed. It is, therefore, clear that the arguments of the learned counsel for the appellants that there was no sufficient light at the time of occurrence cannot be accepted. It was further argued by the learned counsel for the appellants that the witnesses did not get sufficient opportunity to see and mark the features of the dacoits and there was unreasonable delay in holding the test parade after the arrest of the appellants and commission of dacoity and there is no plausible explanation in this behalf and the witnesses were able to identify the appellants because they were shown to the witnesses after their arrest. In support of this argument he pointed out certain facts and circumstances and this argument appears acceptable. From the statements of Bhagwati Prasad (P. W. 1), Shripal (P. W. 2), Jag Pratap (P. W. 3), Sunder (P. W. 4) and Bhagwandin (P. W. 5) it is evident that the dacoity was commit ted for about an hour but the dacoits remain ed inside the house throughout at the time of dacoity and the witnesses were standing towards the north of the house where the dacoity was being committed a distance of several paces. This place has been shown by letter 'a' in the site-plan and from there they could not see inside the house. It is not the case of the prosecution that the dacoits were going inside and coming out of the house at the time of dacoity throughout. It is further evident from the testimony of the aforesaid witnesses that they could see the faces of the dacoits when they were leaving the place after commission of the dacoity. In coming out of the house and going towards the west, the dacoits must not have taken much time. Apart from this the dacoits who were 10-12 in number went out of the house after the dacoity simultaneously. It is, therefore, evident that the witnesses got only a few moments to have a glimpse of the faces of the dacoits. So far as the delay in holding the test parade after arrest and the occurrence is concerned, the material facts are that, the occurrence took place on the night between 19/20. 10. 82; Paikarma appellant was arrested on the night between 14/15. 11. 82 whereas, Hazari appellant was arrested on 2. 12. 82; they were put up for test identification on 11. 1. 83 and the test parade was conducted by Sri Shripal Verma A. S. D. M. (P. W. 6 ). The identification memo is Ext. Ka-3. It shows that necessary precau tions were taken by the Magistrate in con ducting the parade. In the test parade eight witnesses were sent for identification of the suspects. Paikarma appellant was correctly identified in the test parade by Sunder Lal son of Jawahar, Chhotey, Shripal (P. W. 2), Jag Pratap (P. W. 3), Sunder Lal son of Shripal 1p. W. 4) and Bhagwandin (P. W. 5 ). Since Sunder Lal son of Jawahar and Chhottey have not been examined as witnesses, their identification is of no significance. Sunder Lal son of Shripal (P. W. 4) committed four mistakes committed by him in the other parades his evidence of identifiction is of no importance. Thus, there are three. witnesses of identification namely Shripal (P. W. 2), Jag Pratap (P. W. 3) and Bhagwandin (P. W. 5) against Paikarma appellant. They correctly picked up Paikarma at the time of their deposition and stated that he was one of the dacoits who committed dacoity. Hazari appellant was correctly identified in the test parade by three witnesses out of eight witnesses. They are Shripal (P. W. 2), Jag Pratap (P. W. 3) and Bhagwandin (P. W. 5 ). At the time of deposition Shripal (P. W. 2) did not identify Hazari appellant due to which there is evidence of identifica tion of two witnesses Jag Pratap (P. W. 3) and Bhaqwandin (P. W. 5) against Hazari appellant. The value of identification evidence in test parades is much minimized if the test parade is not held within a reasonable time after arrest of the accused and there, is no convincing explanation from the side of the prosecution for such delay. In Soni v. State of U. P. 1984 (21) ACC 378 identification parade was held after a lapse of 42 days from the date of arrest of the appellants. It was held that: "this delay in holding the identification parade throws a doubt on the genuine ness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering a facial expression of the appellant". In Subhash and Shiv Shanker v. State of U. P. 1987 (24) ACC 507 the test parade was held three weeks after the arrest. Their Lordships made following observations in para 8 while assessing the value of the identification evidence: "apart from this infirmity we further find that Shiv Shanker was not put up for test identification parade promptly. Identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding test identification parade. There is, therefore, no room for doubt as to whether the delay in holding identi fication parade was in order to enable the identifying witnesses to see him in the police lock up or in the jail princesses and make a note of his features. " In Hari Nath v. State of U. P. 1987 (24) ACC 582 the test identification parade was held four months after arrest of the accused. In this connection their Lordships made following observations in para 12: "we are afraid in the present case, there is a serious lapse on the part of the prosecution in putting up the suspect ed culprits for a test identification after lapse of four months after their arrest. There is no explanation at all for the delay. There might conceivably be occasions when there could be justifi cation, or acceptable explanation, for the delay. There are cases where delay was at the instance of the accused persons themselves as they expressed a choice as to the venue of the test parade. There may be other causes which in the very nature of things cannot be exhaustively enumerated. Cases can only be illustrative. . . . . . . . The benefit of this regrettable, and wholly unexplained lack of promptitude in holding the test identification, we are constrained to say, enures to the appellants. The evi dence of test identification lacks the requisite element of reassurance to support the conviction. A reasonable doubt arises. " From the observations made in the aforesaid cases it is clear that the test parade should be held without any unreasonable delay after the arrest of the suspect and if there is no convincing explanation for it the benefit must go to the accused. It is true that no hard and fast rule about the period of time after which the test parade should be held after arrest can be laid down but if there is some delay it must be explained by the prosecution. In the present; case the test parade of Paikarma appellant was held on 11. 1. 83 that is 56 days after his arrest on the night between 14/15. 11. 82. There is no explanation on behalf of the prosecution about this delay. The test parade of Hazari appellant was held on 11. 9. 83 that is 39 days after his arrest on 2. 12. 82. There is no explanation on behalf of the prosecution about this delay also. Thus, in view of the observations made in the case of Subhash and Shiv Shanker (supra) and other cases of the Supreme Court it can be held that the evi dence of identification against the two appellants is not worthy of reliance and it gives indirect support of contention of the appellants that they were shown to the witnesses after the arrest and before the test parade. The worth of test identification of a suspect of dacoity held long after the event has been the subject matter of adverse criticism in several decisions. The evidence of identification depends upon power of perception and recollection of the witness. It is the capacity of a witness to register in his mind the impression of the miscreants who he sees committing the alleged crime and his power of memory to retain the image of that plays an important role in picking up a suspect in the test parade. Since human memory is likely to be dulled with the passage of time, it is insisted that the test identification should be held without any delay after the event. However, it may be mentioned that to lay down a hard and fast rule with regard to period of time within which the test parade should be held after the event can be subject of ad verse criticism of arbitrariness. Thus, no mathematical formula has been laid down about this delay by the reported decisions but it has always been insisted upon that there should not be any unreason able delay in holding the test parade after the occurrence. In the Delhi Administration v. Balakrisnna AIR 1972 SC 3, it has been observed at page 5 that: "indeed it cannot be laid down as a proposition of law that after the lapse of a long period, witnesses, would in no case, be able to identify the dacoits they had seen in the course of a dacoity committed during the night. However, the Courts will have to be extremely cautious when such evidence is before them. " In Hasib v. State of U. P. AIR 1972 SC 283, it has been held that the identification parade should be held at the earliest opportunity. Bharat Singh v. State of U. P. AIR 1972 SC 2478 it has been held in Para 6 that: "now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identifica tion parade was held in an irregular manner or that there was undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross-examined in that behalf. " delay in holding the test parade but it is not a one sided affair and if the accused want to take advantage of the circumstances the Magistrate conducting parade and the investigation officer should be cross- examined on his behalf. There are, however, some cases of the Supreme Court which indicate that in case the identification is not held within a reasonable period after the occurrence it cannot be much relied upon. In Muthu- swami v. State of Madras AIR1954sc4 the test identification was held two and a half months after the event. The murder was committed within a few moments and the witnesses saw the suspects for a very brief interval of time. Three witnesses went to identify the suspects and all of them picked up. The evidence of identifica tion was not accepted observing that it was a remarkable feat and the suspects must have been pointed out to the witnesses after the occurrence. In Mohammad Abdul Hafeez v. State of Andhra Pradesh. AIR 1983 SC 367 no test parade was held but the witness identified the suspect at the time of deposition four months after the occurrence. There was thus a lapse of more than four months between the event and the identification in the Court. Their Lordships observed: "there was thus a lapse of more than four months during which period Satyanarayana had no occasion to see the accused. Such identification in the circumstances of the case would hardly furnish any evidence against the present appellant". In Subhash and Shiv Shanker v. State of U. P. , if has been held that: "in the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that inspite of this interval of time the witnesses were able to have a clear image of the accused in their mind and -. identify him correctly at the identification parade. " The observations made in this case It may be mentioned than the aforesaid show that there should not be unreasonable case the descriptive particulars of the dent accused were not given in the first information report as well as during investigation. Their Lordships laying emphasis on this aspect of the matter and delay in the test parade held the evidence of identification unworthy of reliance. From the observations made in the afore said cases it is evident that long interval between the event and the tent parade is not by itself sufficient: ground to discard evidence of identification but it minimizes its value. It is undoubtedly a relevant factor in determining the reliability of the identifica tion evidence but it is hazardous to fix a uni form measure of time after which identifica tion evidence should be disbelieved. If there is delay it should be explained and there must be some convincing reasons to accept the identification evidence. In the present case the test parade was held 82 days after the occurrence. This period undoubtedly exceeds two and a half months on which emphasis was laid in Muthu-swami v. State of Madras (supra ). Apart from this there are some circumstances which create doubt about the reliability of the evidence of identification. I have observed above that the witnesses got ran opportunity to see dacoits for a very short interval while they were escaping from the place of occurrence. Bhagwati Prasad P. W. 1 stated that all the dacoits came out of the house and went away towards the west simultaneously. Shripal P. W. 2 who has correctly identified Paikarma and Hazri appellants in the test parade stated that he had seen faces of two dacoits only and the faces of other dacoits could not be seen by him as they were conceal ed. It is significant to note that ii the test parade Shripal correctly identified four suspects Paikarma. Raghubir, Rangi and Hazari. If he had seen the faces of two dacoits only he would not have correctly jacked up four suspects. This fact indirectly supports the suggestion of the appellants that, the suspects were shown to the witnesses after the arrest, it may also be added here that Shripal did not identify Hazari at the time of deposition. Instead of Hazari he picked up one Radhey who was a co- accused along with appellants and was not identified by him in the test parade. His statement in examination-in-chief is to the effect that the faces of the two dacoits (Paikarma and Radhey) were uncovered and the faces of others had been concealed by the dacoits. Hazari could not, therefore be picked up in the test parade by the witnesses. It may also be mentioned, if that was the position the witnesses would not have correctly picked up several other suspects mentioned in the identification memo Ext. Ka. 3. All this goes to support the defence plea that the suspects after the arrest were shown to the witnesses. In the First Information Report details of the features of the miscreants have not been given. During investigation as well as in deposition also the witnesses do not about the features of the dacoits and do not explain as to how they nave been able to identify the suspects after such a lapse of time. It may also be mentioned that unify do not state if these appellants played any important role at the time of occurrence. The delay in holding test parade after the event has not been explained by the prosecution. Thus, there are convincing reasons to accept the evidence of identification and there is not reasonable explanation on behalf of the prose cution for the delay in holding test parade. The material on record, on the other hand, supports the contention of the accused-appel lants that they were shown to the witnesses after arrest. In view of all this it is evident that much reliance cannot be placed upon the evidence of identification in the present case and the appellants are entitled to get benefit of doubt. The appeals are, therefore, allowed and the conviction and sentence of the appellants for the offence under Section 396 I. P. C. is set aside and they are acquitted. The appel lants are in Jail. They shall be set at liberty forthwith if not required to be detained in connection with some other offence. materials not discovered or recorded by the first investigating agency. As to how much acceptance has to be given to the investigation done by the C. I. D. and the statements of witnesses recorded by its officers is a matter which can be determined ' only after the trial is held and the witnesses and the investigating officer adduce their evidence on oath. As regards the non-mention of the date of recording 'of the statements of Sravan Lal, a finding can be rendered on the omission only after the C. I. D. officer no recorded the statement is given (. opportunity to explain the reason for the omission. In so far as the High Court's view that "in the interest of justice, it is the duty of the Court under Section 482 Cr. P. C. to go into the merits of the evidence and appreciate correctly the documents and the statements field by the police'. We may only refer to Mohd. Akbar Dar & Ors. v. State of Jammu & Kashmir & Ors. (supra) where it has been pointed out that at the stage of framing of charges meticulous consideration of evidence and materials by court is not required. The High Court has also deemed it neces sary to quash the charge against respondents 1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that respondents 1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar v. Ramesh Singh 1978 (f) SCR 257 at 259. We find that the High Court's conclusion about the inadequacy of the evidence against respondents 1 to 3, besides being a premature. ' assessment of evidence, is also attributable to the wrong premises on which the High Court's reasoning is based. We, therefore, find that there was no warrant for the High Court to quash the charge against respondents 1 to 3 in exercise of its powers under Section 482 Cr. P. C. The appeals are accordingly allowed and the order of the High Court is set aside. The charges framed against respondents 1 to 3 by the Sessions Judge are restored and they shall stand trial for the same in accordance with law. We make it clear that in restoring the charges framed against respondents 1 to 3 by the Sessions Judge, we are not making any expression on the merits of the case. .