Ram Autar v. State — 1958 DIGILAW 27 (ALL)

JUDGMENT Chowdhry, J. - These are two connected appeals arising out of the same trial, Cr. A. No. 1810 of 1955, which is a jail appeal, being by one Rameshwar, and Cr. A. No. 1335 of 1955 by Ram Autar, Shital, Jageshwar, Bahori and Ram Bhawan Pasi, all of whom have been convicted by a learned Sessions Judge of Fatehpur u/s 396, IPC. Ram Bhawan Pasi has been sentenced to 10 years' R.I. on account of his youth and each of the remaining Appellants to imprisonment for life. Curiously enough, the learned Sessions Judge, although finding all the Appellants guilty u/s 412, IPC, has not convicted them for that offence and given no reason for that. Four others tried along with the Appellants were acquitted for paucity of evidence of identification. 2. It has been found by the court below, and the fact was not challenged before us. that on the night between the 12 th and 13th of April 1954 a dacoity was committed by about 20 persons armed with lathis, spears and other weapons in the house of Shiv Kanth in village Belai within P. S. Khakhreru in the district of Fatehpur in which Shiv Kanth was killed. The evidence of Dr. Anis Ahmad, Civil Surgeon of Fatehpur, who conducted the post mortem on the dead body at 4-30 p.m. on 14-4-1954 is conclusive on the latter point. First information report of the dacoity, with a list of the dacoited property attached thereto, was lodged by one of the eye-witnesses, Moti Lal PW 2, at 7 O'clock the following morning at the aforesaid police station. None of the culprits was named in the report, but all the eye-witnesses were produced by the prosecution. 3. Investigation was immediately taken up by S. Inspector K. L. Pande PW 39 Station Officer of the police station. The material facts relating thereto find mention in the judgment of the court below and need not be repeated here. The first person to be arrested was Ram Autar Appellant. The prosecution case is that on 4- 6-1954 he had purchased grain worth Rs. 10 on credit from Dharam Singh PW 33 of village Sonari, that the following day Ram Autar went to him and offered a saree alleged to have been one of the dacoited properties, in payment of the price. The prosecution case is that on 4- 6-1954 he had purchased grain worth Rs. 10 on credit from Dharam Singh PW 33 of village Sonari, that the following day Ram Autar went to him and offered a saree alleged to have been one of the dacoited properties, in payment of the price. This is said to have roused the suspicion of Dharam Singh, and on his questioning. Ram Autar is said to have made an extra judicial confession with regard to the dacoity and involved Shital and Rameshwar Appellants as also certain other persons. All this is said to have happened in the presence of Ballu PW 34 and one Bisheshwar. The extra-judicial confession is said to have been committed to writing by Dharam Singh, and the latter is said to have gone at once to the police station and deposited the saree and lodged the written extra-judicial confession thereafter having left Ram Autar at his shop in the custody of the aforesaid two witnesses Ballu and Bisheshwar. Subsequently, S. I. Kamal Singh PW 40 the then Station Officer of the police station (K. L. Pande having since been transferred) went and arrested him. 4. The arrest of Ram Autar in the aforesaid circumstances led to the arrests of Ram Bhawan Pasi the same day, of Shital and Kameshwar the following day, of Jageshwar on 17-6-1954 and of Bahori on 6-7-1954. A gold bali is said to have been recovered on being pointed out by Shital immediately after his arrest and a velvet jhulla and Rs. 10 on being pointed out by Rameshwar after bis arrest. Both these articles were part of the dacoited property. There were test identifications both with regard to the dacoits and aforesaid looted properties recovered from the three Appellants Ram Autar, Shital and Rameshwar. The defence was denial of the prosecution case in toto, including the case with regard to the recoveries. Certain witnesses in defence were produced with regard to the specific pleas taken in defence by the various Appellants which will be referred to presently. The prosecution produced eight eye-witnesses: Moti Lal PW 2, Amar Singh PW 3, Lokendra Bahadur PW 5, Jamna Darzi, PW 6, Ram Singh PW 8, PW 8, Ram Sewak PW 20, Lakshmi Narain PW 25 and Shiv Dhani alias Ram Dhani PW 26. The prosecution produced eight eye-witnesses: Moti Lal PW 2, Amar Singh PW 3, Lokendra Bahadur PW 5, Jamna Darzi, PW 6, Ram Singh PW 8, PW 8, Ram Sewak PW 20, Lakshmi Narain PW 25 and Shiv Dhani alias Ram Dhani PW 26. Only Shiv Dhani was an outsider; the rest of them were residents of different houses in the compound in which the house of Shiv Kanth was situated. All these residents of that compound were sleeping on the night in question in the open in the compound. Prima facie therefore they would appear to be natural witnesses. The witnesses professed to have been able to recognise the dacoits with the help of the moon-light and light emanating from a lantern burning in an osara of the dacoited house and the torch light flashed about by the dacoits themselves. Whatever may or may not be said with regard to the torches and the lantern, there could be no doubt that moonlight was sufficient to enable the witnesses to mark the faces of the dacoits since it was the 10th of the waxing moon. The cases of the individual Appellants may now be taken up. 5. The evidence against Ram Autar Appellant is of a threefold charater (1) evidence of identification by only one witness Moti Lal PW 2, (2) recovery of the saree in the aforesaid circumstances from his possession and (3) his extra-judicial confession to Dharam Singh PW 33. It does not appear that the relations between Dharam Singh and the Appellant Ram Autar were of such an intimate character that the latter should have gone and made an extra-judicial confession to him. Furthermore, the confession, while purporting to have been made in all confidence is said to have been made at a time when not only Dharam Singh but two others were present at Dharam Singh's shop, and present to the knowledge of the Appellant. Prosecution evidence with regard to extra-judicial confession is therefore artificial and so liable to be discarded. The interconnected evidence relating to recovery of saree should also go by the board. In regard to the latter point it is noteworthy further that identification proceedings with regard to this item of property were defective in that admittedly the colour of the sarees mixed was different from that of the saree sought to be identified. The interconnected evidence relating to recovery of saree should also go by the board. In regard to the latter point it is noteworthy further that identification proceedings with regard to this item of property were defective in that admittedly the colour of the sarees mixed was different from that of the saree sought to be identified. It would thus appear that the two categories of evidence, extrajudicial confession and recovery of saree, should be discarded. The only evidence left against this Appellant therefore would be the evidence of identification by the solitary witness Moti Lal, which would be quite insufficient to justify his conviction being maintained. We are therefore of the opinion that this Appellant, Ram Autar, should be given the benefit of doubt and acquitted. 6. The evidence against Shital Appellant is also of a threefold character: (1) evidence of identification by Moti Lal PW 2, Amar Singh PW 3 and Ram Singh PW 8, (2) evidence of recovery of a gold bali at his pointing out after his arrest from a box inside his house the lock of which box was opened with a key supplied by the Appellant and (3) mention of his name as a dacoit in Ram Autar's extrajudicial confession. For reasons already recorded, the last piece of evidence should be discarded. So far as the evidence of indentification is concerned, it appears that this Appellant was put up in the first test indentification held in the district jail of Fatehpur on 10-7-1954. There were three other test identifications, on 16-7-1954 in the jail at Naini in the district of Allahabad, another on 18-8-1954 and one more on 23-11-1954. Ram Bhawan Pasi Appellant was put up in the test indentification of 16-7-1954 along with certain others, while the remaining Appellants were put up for identification in the first test on 10-7-1954. Before proceeding further a piece of argument put forward by the Learned Counsel for the Appellants may briefly be noticed. The argument was that, where there have been more test identifications than one, evidentiary value of witnesses of identification should be considered not only with reference to the particular test identification in which an accused may have been put up, but with reference to the other test identifications as well in which he may not have been put up. The argument was that, where there have been more test identifications than one, evidentiary value of witnesses of identification should be considered not only with reference to the particular test identification in which an accused may have been put up, but with reference to the other test identifications as well in which he may not have been put up. This goes too far since the correct rule is that normally the result of identification proceedings in which a particular accused is put up must alone be taken into consideration in deciding the value of indentification of a particular witness with respect to that accused. Other test identifications in which the accused in question was not put up may be taken into consideration for appraising the power of observation of witnesses only if those tests were held so soon after the test in which the particular accused was put up that the intervening period may reasonably be said not to make any difference to the memory of the witnessesState v. Wahid Bux. 1952 AWR (HC) 512 Cumulative effect of only the tests of 10-7-1954 and 16-7-1954 may therefore be taken into consideration. That affects adversely the evidentiary value of only one witness Jamna PW 6 since in the former test he picked out one correctly and made no mistake but in the latter the reverse was the position. It improves the evidentiary value of Lokendra Bahadur PW 5 since he picked out one correctly but made one mistake in the test of 10-7-1954 but in the test of 16-7-1954 he picked out two correctly and made no mistake. The other witnesses gave a good account of themselves in both the tests. Jamna figures as an identifying witness in the case of only Bahori Appellant, but four other witnesses identified that Appellant and they were all good witnesses. The aforesaid argument of the Learned Counsel does not therefore enure to the benefit of any Appellant. 7. So far as this Appellant Shital is concered, it appears, that all the aforesaid three witnesses of identification against him were good witnesses since Moti Lal picked out six and Amar Singh and Ram Singh five each without any of them committing a mistake. It was urged by the Learned Counsel for the Appellants that this Appellant was known to the prosecution witnesses and that he had been falsely implicated due to enmity. It was urged by the Learned Counsel for the Appellants that this Appellant was known to the prosecution witnesses and that he had been falsely implicated due to enmity. As regards the plea of the Appellant being known to witnesses, the Appellant came forward with one case in the Committing Magistrate's court and quite another in the sessions court. In the former court he pleaded that he was known to them because he was in the service of onr Rameshwar of village Belain, but in the Sessions Court his case was that he was known because of his having been in the service of Shiv Shankar of that village. Shiv Shankar and some other witnesses were produced in defence in support of this plea. In view of the fact that this plea was repudiated by the prosecution witnesses, and it was taken merely by way of an afterthought; the learned Sessions Judge appears to have been quite right in discarding it. As regards the plea of false implication due to enmity, it appears that the defence witness Shiv Shankar has been on terms of litigation with some of the prosecution witnesses. But, as rightly pointed out by the trial court, that is an innocuous circumstances since the Appellant had no art or part in that litigation. Furthermore, this enmity was not put in cross examination to any of the aforesaid prosecution witnesses. Both the pleas taken by this Appellant in defence were therefore rightly rejected by the learned Sessions Judge. 8. As regards the recovery of the gold bali on being pointed out by Shital Appellant, that item was mentioned in the list appended to the first information report, and it was correctly identified in a test identification conducted by a Magistrate on 27-8-1954 by two members of the family of the deceased, Amar Singh PW 3 and Lokendra Bahadur PW 5. The recovery was proved by the evidence of Kamal Signh PW 40 and that of the recovery witness Sant Sewak PW 36. The first argument put forward by the Learned Counsel with regard to this recovery was that no lady of the house of the deceased was produced to identify the bali. The Learned Counsel contended that the aforesaid two inmates of the house were not cross eaamined with regard to this so-called omission. The first argument put forward by the Learned Counsel with regard to this recovery was that no lady of the house of the deceased was produced to identify the bali. The Learned Counsel contended that the aforesaid two inmates of the house were not cross eaamined with regard to this so-called omission. If questioned, they might have offered a plausible explanation for the same for instance, that the ladies were purdah-nashin or indisposed. Furthermore, there being nothing against the two witnesses Amar Singh and Lokendra Bahadur themselves, it did not matter that witnesses who might have been better still were not produced. The next argument put forward was that Sant Sewak was not a witness of the locality, as required by S. 103, CrPC. It was however conceded that Sant Sewak was a Sarpanch of the Panchayati Adalat within whose jurisdiction Shital's village lay. That being so, not only was he a respectable witness, but he should be deemed to have been a witness of the locality in the wider sense of that requirement. It would this appear that there were three good witnesses of indentification against Shital Appellant, and that evidence was corroborated by the evidence of recovery of one of the dacoited properties from his possession. We are of the view therefore that he has been rightly convicted. 9. The evidence against Jageshwar Appellant consist of the evidence of identification by four witnesses, Moti Lal, Amar Singh, Lokendra Bahadur and Ram Singh. Lokendra Bahadur was only a fair witness of indentification since, while picking out one correctly, he committed one mistake. But the remaining three were good witnesses of identification, they being the same who identified Shital. It was submitted by the Learned Counsel for the Appellants that Jageshwar was known to the witnesses because the sister of the deceased was married to one Balbhaddar of the Appellant's village. One Nanhey was produced as a defence witness in support of this plea. As rightly pointed out by the court below, however, it was most unlikely that the prosecution witnesses, even supposing that any of them visited the Appellant's village because of the aforesaid relationship should have noticed the Appellant since, as admitted by the defence witness Nanhe, the village is a large one consisting of about 1800 houses. The witness had no concern with the Appellant. The witness had no concern with the Appellant. The plea of this Appellant that he was already known to the prosecution witnesses was therefore rightly rejected by the learned Sessions Judge. His conviction, based as it is upon the testimony of at least three good witnesses, should therefore be maintained. 10. Bahori Appellant was correctly identified by as many as five witnesses, i.e. the three witnesses who had identified Shital and two more, Jamna PW 6 & Lakshmi Narain PW 25. Taking the result of the two nearly juxtaposed test identifications of 10-7-1954 and 16-7-1954, Jamna's evidence may be discarded, but Lakshmi Narain was a good witness since he identified the Appellant correctly without committing a mistake and his ratio of right and wrong in the other test also was the same. The conviction of Bahori Appellant appears therefore to be well founded. The same remarks apply to Ram Bhawan Pasi, who was also identified by the three witnesses who identified Shital and by Lokendra Bahadur PW 5. 11. As regards the last Appellant Rameshwar, who has filed his appeal from jail, leaving aside the mention of his name in the so called extra judicial confession of Ram Autar Appellant, the evidence against him consists of(l) evidence of identification by the three witnesses, mentioned already, who identified Shital Appellant, and (2) recovery of a velvet jhulla and Rs. 10 on being pointed out by him after his arrest from a box inside his house. As noticed already, the three witnesses of identification were good witnesses. That alone was therefore sufficient to justify his conviction. His plea also was that the witnesses knew him from before, and that he had been falsely impli cated out of enmity by one Ram Manohar. As rightly pointed out by the learned Sessions Judge, there was no evidence in support of the alleged enmity and the plea appears further to have been taken in the Sessions Court merely by way of an afterthought. The plea regarding the Appellant being known to the prosecution witnesses appears also to have been taken on second thoughts, and, when put to them, the prosecution witnesses repudiated the suggestion. The recovery of the jhulla was proved by the testimony of three witnesses of recovery, Sant Sewak P. W. 36, Jagannath P. W. 37 and Chedi Lal P. W. 38 besides the testimony of S. I. Kamal Singh P. W. 40. The recovery of the jhulla was proved by the testimony of three witnesses of recovery, Sant Sewak P. W. 36, Jagannath P. W. 37 and Chedi Lal P. W. 38 besides the testimony of S. I. Kamal Singh P. W. 40. The evidence of these witnesses of recovery as rightly pointed out by the court below, appears to be above board. According to the evidence of these witnesess, jhulla was recovered from a box the lock of which was opened by means of a key supplied by the Appellant himself. That article was correctly identified in a test identification by Moti Lal, Amar Singh, Lokendra Bahadur, all inmates of the house of the deceased, and by an outsider Jagjit Singh P. W. 32. The description of the property also tallied with the description of item No. l5 in the list of the dacoited property appended to the first information report. It appears therefore that this Appellant has also been rightly convicted on the evidence of identification by three witnesses and recovery of one of the items of dacoited property at the instance of the Appellant from his possession. 12. In the result, Cr. A. No. 1810 of 1955 by Rameshwar Appellant is dismissed and his conviction and sentence are maintained; and Cr. A. No. 1335 of 1955 is also dismissed so far as Appellants other than Ram Autar are concerned and their convictions and sentences are maintained, but it is allowed in so far as Ram Autar is concerned. The conviction of Ram Autar and the sentence imposed upon him are set aside and he is acquitted. Ram Autar shall be released forthwith unless wanted in any other-connection.