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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