STATE OF M.P. Vs. RAJENDRA PRASAD

JUDGEMENT

(1.) AT 21.30 hours on 11.3.1984 dacoits entered into the shop of Chintaram (P. W. 1) and after putting off the Dhibri that was burning there attempted to loot valuables but were thwarted by Chintaram's son Judawan (P.W. 2) who took out his gun and challenged the miscreants. Faced with this new situation the dacoits took to their heels. The villagers gave a chase and were successful in apprehending one of them Sajan. He was brought back in the village and tied with a rope. Chintaram made a report in the Police Station Nandini. The police arrived and arrested Sajan. He had some injuries on his person and was, therefore, subjected to medical examination. It appears that during the course of trial Sajan died and the case abated against him. The remaining five accused persons who are the present respondents were acquitted vide judgment, dated 22.7.1986 passed in Sessions Trial No. 27/85 of Durg Sessions Division which is under challenge in this appeal filed by the State.

(2.) THE case rests mainly on the evidence on test identification. At the relevant time besides the inmates of the house, viz., Chintaman, his sons Judawan and Geeta Prasad, there were two other persons sitting alongwith Chitaman in shop. viz, Harkeshwar Maharaj and Chakuram. In the test identification, Chintaram, Harkeshwar Maharaj, Chakuram and Judawan Prasad correctly identified the miscreants, all the five respondents. One other witness, Marha who had also identified the miscreants, turned hostile. Admittedly when the incident took place on account of putting off of the Dhibri that was the only source of light in the shop, darkness prevailed. The trial Judge rightly dismissed the innovation made by Judawan that there were as many as six -seven lanterns burning in the house at the time of the incident. Had it been so there was no reason for Chintaram to have omitted the said source of light. The further innovation of Judawan that the miscreants could be identified with the aid of moon light was rightly rejected by the trial Judge as there was no question of the moon light entering inside the house to facilitate identification of the miscreants. We have no reason to think that there was any other source of light besides the Dhibri which, as admitted by Chintaram, was snuffed by one of the miscreants no sooner they entered the house. Thus, the incident took place in virtual darkness. The other important aspect of the case is that in the first information report as also in the case -diary statements of the aforesaid witnesses, the facial or physical feature of any of the miscreants has not been given. In this background there was good reason to scan the evidence relating to the identification with more than ordinary care and the learned trial Court has taken that care. It appears that accused persons were apprehended in three instalments. The first to be apprehended and put up for test identification parade was Ramsharan. Shri P.R. Kashyap (P.W. 11) is the Executive Magistrate who conducted this test identification on 29.8.1984 in Durg jail. From the testimony of Shri Kashyap and Chintaram it is gathered that Ramsharan was having a clean shaven head at the time of test identification.