LAL SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Agra of a sentence of death passed on Lal Singh Thakur, a resident of Gwalior State, under Section 396, I.P.C., for taking part in a dacoity in which murder was committed. It is not held by the lower Court that the murder was committed by the present appellant. The first report was made on 15 March 1935 at 5 A.M. in Thana Bah in Agra District stating that on the previous night at midnight there had been an armed dacoity at the house of Gopi Bania in Mauza Khilla. The actual person who made the report was one Kanhai Singh Thakur, and his brother had been with the villagers outside the house who attempted to intervene and had been shot by some dacoit unknown. The first report was very brief. The witness P.W. 43, Sub-Inspector Daniells, states that he went to the place and inspected the house and found property lying about and the usual signs of a dacoity, and Bachan Singh had wounds in his leg and was sent to the Thomason Hospital in Agra where he died. Gopi, the owner of the house, gave him a list of property, Ex. B, which had been stolen. None of the dacoits had been recognized. Some time later, on 28 June 1935, the present accused Lal Singh was arrested in Gwalior State which lies to the south of Tahsil Bah separated from it by the river Chambal and a great area of ravine country. Now the proceedings of identification of this accused were taken and six witnesses were sent down to Gwalior and in Gwalior State identification proceedings were taken before Mr. R. Ganesh Bapuji. Of these witnesses three persons identified Lal Singh, Mathura Singh, Gopi and Chotey. Mathura Singh made no mistake; Gopi picked out one wrong person also, and Chhotey made no mistake. The identification list is on p. 13 and the evidence of the Magistrate who conducted the identification is on p. 25. We may note that p. 13, line 33 gave the date in our translation of 8 October 1935. We have consulted the Hindi original and the date is given as 10 August 1935 and this is also the date on p. 14, line 5 and on p. 14, line 15 there is the date of 11 August 1935 for receiving a copy of the identification proceedings. It was merely by misreading the original that the date was taken wrongly as 8-10 instead of 10-8.

(2.) Now as regards the value of the identification evidence there is the statement of Mathuri Singh, P.W. 5, on p. 50. He says that he went to Porsa Jail and identified a dacoit and he picked this man out in the lower Court and in the Court of the Magistrate, and he said this man had a gun with him. Now Mathuri Singh says that it was a moonlight night and he could see the faces of the dacoits clearly. This witness and his brother Bachan Singh advanced towards the dacoits and then the dacoits fired at Bachan Singh and wounded him after some abuse. On p. 16 there is a table of identification proceedings on a later date in connexion with this case on 15 September 1936, and on that occasion Mathuri Singh picked out two persons who were accused Fringi Singh and Raghubar Singh and also three persons who were not accused. But it must be remembered that this later identification was a year and a half after the dacoity and therefore the memory of Mathuri Singh must have become inaccurate in that period. The earlier identification in August 1935 when he picked out the present appellant Lal Singh was within five months of the dacoity and his memory was much fresher. The witness Gopi, the owner of the house, was inside the house and the dacoits came in and beat him and were inside with him for half an hour before he got a chance, and ran out. During the period he was inside with the dacoits, he could see their faces clearly as it was a moonlight night and there was a lantern. He therefore had a good opportunity to see the accused. He also on a later identification, a year and a half after the dacoity, on p. 16 picked out one accused person and two other persons.

(3.) The same reasoning applies to this later identification. The witness Chhote, P.W. 7, on p. 52, is the servant of Gopi, the owner of the house, and he climbed on to the roof of a kachcha house which also belongs to Gopi and adjoins the pakka house into which the dacoits entered. He saw five or six dacoits inside the pakka house, one of them with a gun. He pointed out Lal Singh as the man whom he saw with a gun. He was on the roof for about an hour. This witness clearly had ample time to recognize these dacoits. He made no mistake at the identification of Lal Singh and he did not go on a later occasion. There is no doubt that the evidence of identification is of considerable weight. The next piece of evidence is a confession on pp. 19 and 20 recorded in Gwalior State on 20 August 1935, that is, shortly after the identification by the witnesses from this dacoity. The same Magistrate at Amba recorded the confession whose name is given as G.B. Dhekne, that is, Mr. Ganesh Bapuji, Judicial Officer, who gives his evidence on commission on pp. 23 and 24, and he has proved that he made this record of the confession of Lal Singh. The confession of Lal Singh sets out a number of offences mostly kidnapping for ransom in Gwalior State and on p. 20, line 35 there is a translation of a confession of the present dacoity as follows: (Having seen the 14 lachhas of silver, said) these ace of the dacoity committed at Klierla. Maharaj Singh, Barnam Singh, Cohhe Singh of Kawatki, Firangi Singh of Nagra, Shambhu Singh of Nagra, Eaghubat Singh of Nagra, Beni Singh of Nagra, Madan Singh of Nagra, Heera Thakur of Nagra, Kanhai Singh of Kichol, Bharat Singh of Lakhan-ka- pura, and myself took part in it. We committed the dacoity at the house of a Baniya. I got this property recovered from my house.