DHAJA RAI Vs. EMPEROR

JUDGEMENT

(1.) Dhaja Rai and Jitan Ahir appeal against their conviction of an offence under Section 395, Indian Penal Code, and the sentence of seven years rigorous imprisonment passed upon each of them by the leaned Sessions Judge of Ghazipur at Ballia. (After stating the facts his Lordship proceeded:)

(2.) The evidence against these appellants consists entirely of the testimony of identifying witnesses. No property taken away by the dacoits appears to have been recovered from the possession of any of the two appellants. Therefore the ? case against the appellants rests entirely on the testimony of these witnesses. Each one of the appellants has been identified as mentioned above by five witnesses. If these witnesses are not believed, it necessarily follows that the case against them will fail.

(3.) The leaned Sessions Judge has written a very careful and elaborate judgment discussing the evidence of each one of the witnesses. He has, further considered the various points urged by the defence and to my mind has written a very careful and well balanced judgment. He has believed the five prosecution witnesses against each one of the appellants. Leaned Counsel for the appellants has laid the evidence of these witnesses before me and has submitted exhaustive arguments regarding the same. The main contention of the leaned Counsel is that, in the circumstances prevailing at the time of the commission of the dacoity, particularly in the conditions of light then available, it is hard to believe that these witnesses could have had sufficient opportunity of marking the features of the culprits. Leaned Counsel contends that the evidence in the case indicates that it was a dark night and that the only light available was that produced by the flashes of the electric torches in the hands of the dacoits. It is said that in these circumstances the witnesses specially some of them who were lying on takhats in one of the cattle sheds, could not be expected to see much of what was going on and particularly to notice the features of any of the culprits. Again, leaned Counsel has emphasized the fact that the identification in Jail by the witnesses took place some 10 or 11 months after the commission of the dacoity. It has been argued that after the if lapse of such a length of time the witnesses, even they had seen the culprits at work during the progress of the dacoity, could not be expected to identify any of them. Lastly it has been contended, as was contended before the leaned Sessions Judge, that the circumstances of the case clearly suggest that the witnesses must have had an opportunity of seeing the accused before the identification parades, which, as mentioned above, were held in October 1945 and January 1946. Leaned Counsel has further contended that some of these witnesses, namely, Gajalhar Misir, Brijraj Misir, Chandrika Rai and Ram Kripal are witnesses who figured among the prosecution witnesses in sessions trial No. 46(B) of 1945 in which six persons were put upon the trial, but they were all acquitted by the leaned Sessions Judge on 22-9-1945. The argument of the leaned Counsel is that these witnesses must be deemed to have been disbelieved so far as those six persons were concerned. It may, however, be noted here in passing that so far as this case is concerned there is nothing on the record to give any t indication as to the specific part actually played by these witnesses in the course of the earlier trial. We do not know if any of these witnesses was definitely disbelieved on the ground that he was a witness of untruth. It may be that in the case of those persons the evidence of these witnesses may have been considered to be insufficient for the reason that perhaps one only may have identified an important accused person. Unless some more facts are placed before the Court, obviously it is impossible to attach any importance to the criticism beyond the bare fact that these witnesses too appeared as prosecution witnesses in the earlier trial which ended in the acquittal of the accused persons.