IQBAL & ANR Vs. STATE OF U.P.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1663 of 2012, Judgment Date: May 06, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1663 OF 2012
IQBAL AND ANOTHER …APPELLANTS
VERSUS
STATE OF UTTAR PRADESH …RESPONDENT
J U D G M E N T
R. BANUMATHI, J.
This appeal by special leave arises out of the judgment dated
14.05.2012, passed by the High Court of Judicature at Allahabad dismissing
Criminal Appeal No.2 of 1981, confirming the conviction of the appellants
under Section 396 IPC and also the sentence of ten years rigorous
imprisonment imposed on each of them.
2. Case of the prosecution is that on the intervening night i.e.
on 21/22.09.1979, the complainant-Patia Singh (PW1) was sleeping in his
house. His brothers Saran Singh, Sukhbeer Singh and his children were
sleeping in their house. Both the houses were adjacent to each other. In
the midnight at about 1.00 o’clock, PW1-Patia Singh heard the noise of
gun firing and in the light of torch, he saw that in the house of his
brother Saran Singh, about 14-15 dacoits were looting the property and that
two of them on the roofs and two dacoits were standing on the gate holding
guns and they were continuously firing. All the inmates of the house
witnessed the incident in the torch light and electric light emanating from
tube well. On raising alarm, the villagers came out to help them and they
were carrying torches and they warned the dacoits from behind the walls.
When Saran Singh tried to control the dacoits, the dacoits opened fire and
he was shot dead. The miscreants looted the articles in about one and half
hours and fled away from the scene.
3. On the basis of the statement of the complainant–Patia Singh
(PW1), a case was registered under Section 396 IPC in FIR No.258/1979 in
P.S. Parikshitgarh, Meerut on 22.09.1979. PW8-Nepal Singh (SI) had taken
up the investigation and he investigated the spot and collected the list of
looted articles from Jay Singh and Sukhbeer Singh. Harpal Singh-PW4(SI)
conducted the inquest on the body of the deceased Saran Singh. Autopsy on
the dead body was performed on 23.09.1979 by Dr. S.P. Goel and he opined
that the death was due to gunshot injuries. PW8-Nepal Singh recorded the
statement of the witnesses and seized the torches, lanterns and prepared
the site map and recovery memo. The accused were arrested on the night of
8/9.10.1979 and the test identification parade was conducted in District
Jail, Meerut on 15.11.1979 by PW6-Seeta Ram (Special Executive Magistrate).
PW7-Bhanu Pratap (SI) had taken up further investigation and received the
report of test identification parade. On the basis of investigation
conducted by PW7 and his predecessor investigating officers, chargesheet
was filed against the accused-appellants, namely, Iqbal and Khurshed and
against non-appealing accused, namely, Kripa s/o Buddhu and Kishnu s/o Ram
Chander under Section 396 IPC.
4. To bring home the guilt of the appellants, prosecution examined
as many as ten witnesses and exhibited documents and material objects. Upon
appreciation of evidence, VIth Additional Sessions Judge, Meerut held that
the prosecution proved the case beyond reasonable doubt and vide judgment
dated 23.12.1980, convicted the accused-appellants and the non-appealing
accused under Section 396 IPC and sentenced them to undergo ten years
rigorous imprisonment. Aggrieved by the verdict of conviction, the
appellants namely, Iqbal, Kishnu and Khurshed, preferred Criminal Appeal
No.2 of 1981 and Kripa filed Criminal Appeal No.5 of 1981 in the High Court
of Judicature at Allahabad. After three decades of delay, the High Court
vide judgment dated 14.05.2012, dismissed both the criminal appeals and
thereby confirmed the conviction and also the sentence of imprisonment
imposed on them. Aggrieved by the dismissal of their appeal, the
appellants herein, namely, Iqbal and Khurshed, have preferred this appeal
assailing the correctness of the verdict of conviction.
5. Learned counsel for the appellants contended that at the time
of incident, it was pitch dark and it would have been highly improbable for
the witnesses to identify the dacoits with flash of torches. It was
further submitted that PW1-Patia Singh had given an exhaustive list of more
than fifty valuable items which had been stolen, but except three kilograms
of ghee in a clay pot, nothing was recovered from the appellants and in the
absence of substantive evidence corroborating the identification, the
courts below ought not to have convicted the appellants. It was also
submitted that the appellants have no criminal antecedents to commit such
heinous crime.
6. Per contra, learned counsel for the respondent– State of Uttar
Pradesh contended that the testimony of PW1-Patia Singh, PW2-Jay Singh and
PW3-Begraj who are the eye witnesses and their presence on the spot is
quite natural and they being the eye witnesses to the incident had seen the
dacoits for a considerable time and, therefore, identification of the
appellants being the dacoits cannot be doubted. It was further argued that
based on the testimony of PW1 to PW3 and other materials on record, courts
below by concurrent findings convicted the appellants under Section 396 IPC
and such concurrent findings cannot be interfered with.
7. We have carefully considered the rival submissions and perused
the impugned judgment and evidence on record.
8. PW1-Patia Singh, who is the complainant, has narrated the
incident stating that about 1.00 o’clock in the night of 21/22.09.1979
about 14-15 dacoits came and looted the house of his brother Saran Singh.
On hearing alarm, villagers, namely, Ganga Saran, Daya Chand and Devi Singh
who were having torches came and took shelter in PW1’s house and with the
torch light, he was able to see the dacoits. PW1 further stated that after
the commission of the dacoity when he entered into his brother’s house he
saw his brother-Saran Singh being shot dead. He has stated that there is a
road of three and a half yards width between his house and his brothers’
houses and that other villagers witnessed the incident from the shelter of
his house in the sitting room.
9. PW2-Jay Singh, son of the deceased Saran Singh, has stated that
on that fateful night he was sleeping in the verandah of his house, which
is adjacent to PW1’s house, with his father Saran Singh, Haran Singh and
other inmates of the house. PW2 further deposed that at about 1.00 o’clock
in the night about 14-15 dacoits came with the torches and looted the
house and also started firing. In order to save his life, he came out
running from the house and took shelter in the sitting room of PW1-Patia
Singh (PW1) and PW2-Jay Singh further stated that from the house of PW1, he
saw the faces of dacoits in the flash light of torches. He further stated
that after the incident, he went back to his house and found that his
father Saran Singh being shot dead. PW3-Begraj also deposed on the same
lines that on the critical night of the incident, he heard sound of fire
arms and he went to Albel’s house which is at a distance of five-six yards
from the house of the deceased. He further stated that he saw the faces of
the dacoits in the torch light flashed by the villagers.
10. In cases of dacoity, usually, the offence is committed by unknown
persons with the criminal background. It is only in very few cases, the
accused-dacoits are known to the victim. PW1-Patia Singh and PW2-Jay Singh
have stated that they had witnessed the incident from a distance of three
and half yards. PW3-Begraj also stated that he had witnessed the incident
from a distance of five-six yards in the feeble torch light. Admittedly,
according to the witnesses, there was no electricity at the time of
incident in their houses. They claimed that they could see the accused
persons with the help of their torch lights. In the courts below, onbehalf
of the accused persons, it was argued that the night of incident was an
amavasya-new moon night. A perusal of calendar of that month in that
year, it is seen that the intervening night of 21/22.09.1979 was a new moon
night i.e. ‘amavasya’.
11. In our considered view, it is unbelievable that on a new moon night
when it was pitch dark, the witnesses who were frightened and who were
hiding themselves behind the walls in order to save themselves, could have
seen actual faces of the accused persons just by flash of torch lights on
their faces and in the light of lantern. Further, there were about 14-15
dacoits in number, all armed with deadly weapons and were continuously
making ingress and egress in the house of the deceased, it becomes
inconceivable as to how the witnesses standing at a distance in a feeble
light would have been able to identify the dacoits.
12. When the witnesses in a panicky state and standing at a distance of
three and half yards and five-six yards, it is doubtful whether the
witnesses would have gained enduring impression of the identity of the
accused. In the commission of offence of dacoity, identification becomes
susceptible to errors and miscarriage of justice. In Hari Nath and Anr.
vs. State of U.P., (1988) 1 SCC 14, this Court held as under:-
“16….The conduct of an identification parade belongs to the realm, and is
part of the investigation. [pic]The evidence of test identification is
admissible under Section 9 of the Evidence Act. But the value of the test
identification, apart altogether from the other safeguards appropriate to a
fair test of identification, depends on the promptitude in point of time
with which the suspected persons are put up for test identification. If
there is unexplained and unreasonable delay in putting up the accused
persons for a test identification, the delay by itself, detracts from the
credibility of the test.
17. The one area of criminal evidence susceptible of miscarriage of
criminal justice is the error in the identification of the criminal. Indeed
Prof. Borchard’s Convicting the Innocent records several criminal
convictions in which the accused was subsequently proved innocent. The
major source of the error is to be found in the identification of the
accused by the victim of the crime. Indeed the learned author refers to the
source of mistaken identification thus:
“The emotional balance of the victim or eyewitness is so disturbed by his
extraordinary experience that his powers of perception become distorted and
his identification is frequently most untrustworthy. Into the
identification enter other motives not necessarily stimulated originally by
the accused personally — the desire to requite a crime, to exact vengeance
upon the person believed guilty, to find a scapegoat, to support,
consciously or unconsciously, an identification already made by another.
Thus, doubts are resolved against the accused.”
18. Glanville Williams in The Proof of Guilt — (Hamlyn Lectures) — refers
to the errors of recognition breeding an invincible assurance in the
witnesses, highly deceptive for those who are not forewarned of such
possibilities, and excerpts Gorphe’s results of a continental
investigation, thus:
“There is no difference from the subjective point of view, between true and
false recognition, so far as their intrinsic qualities are concerned, and
there are no objective signs to distinguish one from the other. .... The
witness’s certainty may not be immediate, without this delay being
necessarily a sign of error. Nevertheless, error is more frequent when
recognition comes some time after seeing....
The act of recognition is very open to suggestion in all its forms....
Resemblance is a matter of relativity. For a white person, all negroes are
like each other, and conversely. A person can [pic]much better distinguish
those of his own age and condition than those of different ages and
condition. Uniform is a cause of fallacious resemblance, above all for
those who do not wear it. (emphasis supplied)”
19. The evidence of identification merely corroborates and strengthens the
oral testimony in court which alone is the primary and substantive evidence
as to identify…”
13. As noticed earlier, test identification parade was conducted in jail
on 15.11.1979 by PW6-Special Executive Magistrate in which the witnesses
PW1, PW2 and PW3 identified the accused. As far as test identification
parade is concerned, it is relevant to note that accused-Kripa has
contended that he had been falsely implicated in the case because of the
rivalry with Rampal Singh and his maternal uncle Mangeram. Accused-Kripa
also pleaded that the witnesses knew them as they were living in nearby
villages and because of rivalry, they were being falsely implicated in the
case. So far as appellant No.2–Khurshed and another co-accused-Kishnu are
concerned, they had stated that they were arrested by the police from their
houses and they were shown to the witnesses at the police station and they
were also photographed before holding test identification parade.
14. Even though the complainant-PW1 and other witnesses have denied the
defence plea, in the light of the fact that the incident occurred in the
pitch of darkness, the identification of the appellants by the witnesses
has to be viewed with caution and the court is to look for corroboration
strengthening the identification.
15. Evidence of identification of the miscreants in the test
identification parade is not a substantive evidence. Conviction cannot be
based solely on the identity of the dacoits by the witnesses in the test
identification parade. The prosecution has to adduce substantive evidence
by establishing incriminating evidence connecting the accused with the
crime, like recovery of articles which are the subject matter of dacoity
and the alleged weapons used in the commission of the offence.
16. It is pertinent to note that in the present case no recovery of
articles which are the subject of dacoity was made from the appellants or
other non-appealing accused persons. In his complaint, PW1 gave a list
enumerating fifty expensive items, such as gold jewellery, silver articles,
sarees and clothes and also cash. As per the recovery memo, what was
recovered was just three kilograms of ghee in a clay pot. In his
deposition, PW8-Nepal Singh (investigating officer) has stated that at the
instance of Kripa, he had recovered a ‘chaptaghu’ and an ‘attire’.
However, in the recovery memo, only three kilogram of ghee is mentioned
which is said to have been recovered on the disclosure statement of accused
Kripa. From the appellants as well as from the non -appealing accused
persons, not a single item of valuable out of the whole list of stolen
articles was recovered. It is quite unbelievable that within a short span
of time i.e. from 21.09.1979 (date of incident) to 9.10.1979 (date of
arrest), the accused would have converted or sold out all the valuable
items. Even if we accept that they had done so, the prosecution ought to
have adduced evidence as to how and in what manner the articles which were
the subject matter of dacoity were either disposed of or converted. Murder
and robbery were part of the same transaction. Consequent upon the
disclosure statement, only three kilograms of ghee was recovered.
17. In order to bring home the guilt of the accused persons, it is the
duty of the prosecution to prove that the stolen property was in the
possession of the accused persons or that the accused had knowledge that
the property was a stolen property or the accused persons had converted the
stolen property. No such recovery was made to connect the appellants and
other non-appealing accused persons with the crime.
18. In the trial court, on behalf of some of the accused persons, a plea
was taken that some of the accused were known to the witnesses and that the
accused are resident of Jayee village and Buksar village and are doing
cultivation and that the accused are known to the witnesses. The
prosecution witnesses having known to the accused earlier, the witnesses
are residents of village Etmadpur and used to take the bus at village Jayee
and at village Khajoori bus stand. The courts below observed that the
identification of the appellants cannot be discarded merely on the ground
that the appellants and accused Kishnu reside in the village Buksar and
that the witnesses knew the accused long before. The accused could not
adduce evidence to substantiate the defence plea that the prosecution
witnesses had known the accused earlier. Non-adducing of evidence to
substantiate the defence plea by the accused seems to have substantially
weighed in the mind of the trial court to accept the prosecution case.
19. Courts below based the verdict of conviction solely on the oral
testimony of PW1 to PW3 and the identification of the appellants and other
non-appealing accused in the test identification parade. As discussed
earlier, in the absence of any other evidence like recovery of stolen
jewellery or other articles strengthening the prosecution case, conviction
cannot be based solely on the identification of the accused in the test
identification parade. Serious doubts arise as regards identification of
the accused regarding complicity of the appellants in the commission of
dacoity and their identification by the witnesses and the prosecution has
failed to prove the guilt of the accused beyond reasonable doubt and in our
view, the conviction of the appellants under Section 396 IPC cannot be
sustained and is liable to be set aside.
20. Conviction of the appellants under Section 396 IPC and the sentence
imposed on them is set aside and this appeal is allowed. The appellants
are ordered to be set at liberty forthwith unless they are required in any
other case.
………………………J.
(T.S. THAKUR)
……………………...J.
(R. BANUMATHI)
New Delhi;
May 6, 2015
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