Shitla v. State of U. P. — 1972 DIGILAW 323 (ALL)

JUDGMENT M.N. Shukla, J. - This appeal and the connected Appeals Nos. 456 of 1969 and 558 of 1971 arise out of sessions trials Nos. 57 and 81 of 1968 which were disposed of by the Temporary Civil and Sessions Judge, Mirzapur by a common judgment dated 23-1-1969. He convicted the four accused persons for an offence u/s 396 IPC and sentenced them each to imprisonment for life. They have, therefore, come up in appeal against their conviction and sentence as aforesaid. Cr. A. No. 461 of J969 has been preferred by Shitla. Cr. A. No. 456 of 1969 by Mathura and Cr. A. No. 558 of 1971 by Shyama and Chhutuwa alias Chhote Lal. We have heard the three appeals together and we propose to deal with all of them in the same judgment. 2. The prosecution case in brief is that a daring dacoity took place fit about 8 p.m. on the 15th March, 1967 at the house of one Bhagwan Das in village Golara, police station Kallia in the district of Mirzapur. Sri Kant (PW 1), son of Bhagwan Das, was at his shop which is located in a part of the Osara of the house itself. His mother Smt. Ram Dulari (PW 2) was sleeping with her sick son, namely, Shanker Lal in the Osara towards south. Sri Kant heard a sound of firing and so came out of his shop and discovered that his father had been shot at. His mother also came out asking Sri Kant as to what was going on and the latter told her that they were beating his father (Bhagwan Das). Then both Sri Kant and his mother were assaulted with lathis. It is said that there were (sic) assailants, one armed with a pistol, one with a gun and the rest with lathis. After beating Sri Kant, his father (Bhagwan Das) and his mother (Smt. Ram Dulari) two of the dacoits entered into his house and looted and took away their property in cash. While the dacoity was being committed, Duberi, one of the dacoits who was coming from the back side of the house of Sri Kant towards the front, was shot at and seriously injured. He fell down to the south of the aforesaid house saying that they had lit their own man. While the dacoity was being committed, Duberi, one of the dacoits who was coming from the back side of the house of Sri Kant towards the front, was shot at and seriously injured. He fell down to the south of the aforesaid house saying that they had lit their own man. Hearing this all the miscreants collected there and ran away with the looted property and the injured dacoit towards the pokhra to the south of the complainant's house. Hearing the hue and cry of Sri Kant and other members of his family as also the sound of firing a number of persons of the village such as Shobhnath (PW 3), Rafi Ahmad (PW 4), Parbhu (PW 15), Jhagru (PW 16) and Kailash etc. arrived and witnessed the occurrence. One of them namely Kailash, was also injured by a gunshot fired by one of the fleeing dacoits. It is alleged that at that time it was moonlit night, a lantern was also burning at the door of Sri Kant's house and shop and Shobhnath and Rafi (PWs 3 and 4) had torches with them and the dacoits also carried torches and they were all flashing them here and there. In the said light the witnesses and the victims of the dacoity noticed the faces of the dacoits. 3. Shortly after the dacoits had fled, head constable Sita Ram (PW 42) along with five other constables arrived on the spot. They went towards the pokhra along with the people of the village and found some one lying injured there by a gun shot. The head constable interrogated him and the latter disclosed his name as Duberi and also the names and the addresses of the other dacoits. They brought him to the house of Bhag-wan Das where again he was interrogated by Sita Ram and the village people and then also Duberi gave out his name as also the names and addresses of the other dacoits who had come along with him at the house of Shri Kant to commit dacoity. 4. The first information report of the incident was lodged at police station Hallia by head constable Sita Ram (PW 42) at 12-30 a.m. in the night between the 15th and 16th March, 1967, the distance of the police station being three miles from the place of occurrence. 4. The first information report of the incident was lodged at police station Hallia by head constable Sita Ram (PW 42) at 12-30 a.m. in the night between the 15th and 16th March, 1967, the distance of the police station being three miles from the place of occurrence. In the report the information named Duberi, Shyama, Chhutuwa, Nand Kishore's son and two persons whose names were not known. 5. The injured persons, namely, Bhagwan Das, Sri Kant, Smt. Ram Dulari and Duberi were taken to the district hospital, Mirzapur the same night and were examined by Dr. S.N. Sahai (PW 7) on the 16th March, 1967. The injury report of Duberi (Ex. Ka 4) showed that he had one lacerated gun shot wound which in the opinion of the doctor was grievous and had been caused by firearm and its duration was half day i.e. twelve hours suggesting that it had been caused some time in the night on the 15th March, 1967. Duberi succumbed to his injuries in the hospital on the 17th March, 1967. The post mortem examination on his dead body was conducted by Dr. S.N. Sahai on the 19th March, 1967. Bhagwan Das who had received five lacerated wounds and a contused swelling also died of his injuries on the 15th March, 1967. The post mortem examination on his dead body was also conducted by Dr. S.N. Sahai on the 21st March 1967. As many as eleven antimortem injuries were found on the dead body and in the opinion of the doctor the victim had died due to shock and haemorrhage and paritonetis as a result of those injuries. Two lacerated wounds and a contused swelling were found on the person of Smt. Ram Dulari and one lacerated wound was found on the person of Sri Kant. One Kailash who was also injured was examined by Dr. L.B. Saksena (PW 14), who found two circular gun-shot wounds on his person. 6. According to the doctor these injuries received by him could be of the night of the 15th March, 1967. 7. The usual investigation followed and after completion of the same a charge-sheet was submitted against the Appellants. 8. All the accused denied having committed the dacoity at the house of Sri Kant on the night of the 15th March, 1967 and alleged their false implication in the case on account of enmity with the police. 7. The usual investigation followed and after completion of the same a charge-sheet was submitted against the Appellants. 8. All the accused denied having committed the dacoity at the house of Sri Kant on the night of the 15th March, 1967 and alleged their false implication in the case on account of enmity with the police. They also stated that they had been known to the witnesses from before and had further been shown to them and hence the identification proceedings were a farce. The Appellants Shyama and Chhutuwa denied that any looted property had been recovered from their possession. 9. The conviction of the Appellants in these appeals is based on the evidence of identification. There is additional evidence of recovery against Shyama and Chhutuwa Appellants. Shyama was arrested in his village Navgavan on the 15th March/16th March, 1967 at 1 a.m. in the night at a distance of about four miles from the place of occurrence along with three boxes containing clothes belonging to Sri Kant and his family. A raid was made at the house of Chhutuwa accused in his village Didhauli, police station Khiri, District Allahabad on the 20th March, 1967. He was not found there but two Saris and one blouse alleged to have been taken away in the dacoity committed at the house of Sri Kant were found in Chhutuwa's house. Ultimately he surrendered in the court of the Judicial Officer, Meja at Allahabad on the 10th April, 1967. The accused Mathura was arrested from his house in village Surecha, police station Khiri district Allahabad on the 21st March, 1967. The accused Shitla also surrendered in the court of the Judicial Magistrate Chunar on the 22nd May. 1968. 10. The case of Shitla Appellant is clearly distinguishable from those of the other1 Appellants, as already stated, he surrendered in the court of the Judicial Magistrate, Chunar on the 22nd May, 1968. Mukhtar Ahmad (PW 24) in whose custody this accused was given deposd that he brought this accused baparda from the court of the Judicial Magistrate to the police lockup and then to the district jail. Thus, it is evident that he surrendered more than 14th months after the occurrence. The identification proceedings in respect of this accused were conducted in the district jail, Mirzapur, on the 19th June, 1968 by Sri Madan Mohan Singh (PW 34) Sub-Divisional Magistrate, Mirzapur. Thus, it is evident that he surrendered more than 14th months after the occurrence. The identification proceedings in respect of this accused were conducted in the district jail, Mirzapur, on the 19th June, 1968 by Sri Madan Mohan Singh (PW 34) Sub-Divisional Magistrate, Mirzapur. He is stated to have been correctly identified by Sri Kant (PW 1), Shobhnath (PW 3), Rafi Ahmad (PW 4), Parbhu (PW 15) and Jhagru (PW 16). This is remarkable result when it is recollected that according to the witnesses they had last seen this accused during the course of the commission of dacoity and did not see him again till about 15 months later, when the identification proceedings were held. In our opinion the whole identification looks suspicious. The period of more than one year is too long during; which one may expect the witnesses to retain correctly the impressions about the features and appearance of dacoits, even if they had seen them for a short while at close range during the commission of the dacoity. There may be exceptional cases where oh account of some extraordinary feature or circumstances the impression may be unusually tenacious but normally it is idle to expect such feats of performance from the witnesses. Human memory is fallible; the impressions caught in a moment of crisis tend to become blurred and obscure as the mist of time gathers. It is, therefore, a salutary principle of law that no value should be attached to identification evidence here the test parade is held after an inordinately long time. 11. The learned Counsel for the State relied on a division Bench decision of this Court in Sheo Nandan Vs. The State, AIR 1964 All 139 . It was observed at page 143 of the reports as follows: But we are unable to subscribe to the view that this necessarily causes any infirmity in the evidentiary value of the witnesses who do, in spite of this difficulty find it possible to identify the accused or that the value of the identification evidence is minimised because of the time gap between the occurrence and the identification proceeding. If the accused cannot be put up for identification for some time after the occurrence, the prosecution obviously suffers inasmuch as it becomes more and more difficult for the witnesses to identify persons who were not known to them at all and who were seen by them for the first time at the time of the occurrence. But if in spite of fading memory and the effect of seeing the accused in a different appearance and the long gap between the time of the occurrence and the holding of the identification proceedings, the witnesses do identify the accused, there should be no justification whatsoever for discarding their evidence. The prosecution suffers the disadvantage of losing the testimony of those witnesses who are unable to identify the accused on account of their fading memory. There is no reason why evidence of even those witnesses who do, in spite of this handicap, identify the accused, should be disbelieved. In that case the dacoity had been committed on the 2nd of February, 1959 whereas the identification proceedings in respect of Nagina and Sheo Nandap accused were taken on the 9th December, 1959 i.e. about ten months after the occurrence but Nagina was arrested on the night between, the 25th and 26th September, 1959 and Sheo Nandan on the 21st October, 1959. Thus the identification proceedings were arranged in about a month and a half after Sheo Nandan's arrest and two and a half months after Nagina's arrest. It was also found that the prosecution was not responsible for any delay in arranging the identification proceedings or in putting the two persons aforesaid for identification. There is nothing in the Reports to indicate whether any steps were taken by the prosecuting agency against Nagina and Sheo Nandan who remained absconding. The police might have drawn proceedings Under Sections 87 and 88 Code of Criminal Procedure and declared them absconders. In those circumstances if the identification proceedings were held within a reasonable time after the arrest of the accused, they cannot be said to suffer form any infirmity on that account. We are inclined to the view that generally an abnormal delay in the identification proceedings such as a year or more detracts from the value of the identification evidence unless special circumstances are established. Each case will have to be judged on its own facts. We are inclined to the view that generally an abnormal delay in the identification proceedings such as a year or more detracts from the value of the identification evidence unless special circumstances are established. Each case will have to be judged on its own facts. There is nothing in Sheo Nandan's case (supra) which militates against this principle. In fact, S.D. Singh, J. speaking for the Court observed in paragraph 64 of the Reports as under-- We are in full agreement with the view expressed by Asthana and Oak, JJ. (Cr. A. No. 248 of 1956) that the evidence of the identification has to be judged on the basis of various facts and circumstances of the particular case and that it is not possible to lay down a hard and fast rule as to when a particular identification should or should not be accepted. In the instant case, however, the facts are materially different. The time gap between the occurrence and the identification is greater, being about fifteen months. 12. There is another distinguishable feature in the present case. There is definite evidence to the effect that the police had come to know about the complicity of Shitla accused as early as the date of the commission of the dacoity when one of the dacoits namely, Duberi, who was injured in the dacoity and died later on, had disclosed that one of the miscreants was the son of Nand Kishore. It is not disputed that Shitla accused was the son of Nand Kishore. The Investigating Officer Rajdeo Singh (PW 43) deposed that on the 21st March, 1967 he raided the house of Shitla but found him absent. There is not an iota of evidence to show that any steps were taken thereafter by the police to apprehend Shitla. The learned State Counsel relied on the vague allegation made by the Investigating Officer in his deposition that the search of the remaining accused continued uninterrupted. We cannot attach any significance to such an allegation in the absence of positive evidence as to the action taken by him in regard to the alleged absconder. It would have been the easiest thing for the prosecution to prove that proceedings Under Sections 87 and 88 Code of Criminal Procedure, if any, were drawn against Shitla accused. The prosecution did not adduce any evidence to prove that such proceedings were taken. It would have been the easiest thing for the prosecution to prove that proceedings Under Sections 87 and 88 Code of Criminal Procedure, if any, were drawn against Shitla accused. The prosecution did not adduce any evidence to prove that such proceedings were taken. It was urged on behalf of the State that no question was put to the Investigating Officer as to whether such proceedings were drawn or not. In our opinion it is the duty of the prosecution to prove that an accused was declared absconder. Acts of evasion of justice no doubt afford a presumption of guilt. Law brands an absconder with particular stigma. Paradoxically an absconder by being a fugitive from justice makes himself particularly uulnerable in the eye of law. The etymological meaning of the word 'abscond' is to hide oneself. But the mere fact that the Sub-Inspector could not find the accused when he once raided his house is not enough. It must be established that the accused was absconding or concealing himself for the purpose of avoiding the service of the warrant. In order to be safely an absconder one need be proclaimed as such u/s 87 Code of Criminal Procedure. Since in the case before us the prosecution failed to discharge its burden of proving that such proceedings were drawn against Shitla accused, it cannot be said that he was an absconder and hence the prosecution is not entitled to the exclusion of the time between the date of the occurrence and the actual surrender of the accused Shitla. Had such data been placed before the court by the prosecution, then alone the interval between the date of surrender and the date of identification proceedings could be excluded. In a case where there is an unusually long lapse of time between the commission of the dacoity and the identification proceedings and there is no proof of any coercive proceedings being adopted by the State during the period when the accused is at large, the court of law is entitled to presume u/s 144 of the Indian Evidence Act the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation of the facts of a particular case. If no attempts are made by the police to apprehend the accused person who runs away from justice, the court may presume that if such attempts had really seen made, the accused would have been apprehended and identification proceedings arranged within a reasonable time so as to lend credibility to the performance of the prosecution witnesses in the parade. The likelihood of the witnesses either seeing such accused or the latter J being shown to them during this long period is also greatly heightened. The prosecution cannot take advantage of its own latches in this regard and shift the burden of proof on the accused by taking shelter under the plea that no such suggestion was made on behalf of the defence to the Investigating Officer. In the case of Shitla accused, therefore, whose complicity was known on the very date of the commission of the dacoity and against whom the prosecution has not proved that any coercive steps had been taken or any serious attempt had been made to arrest him, the delay of about fifteen months in arranging for identification parade appears to be fatal to the prosecution case. The conviction of this accused being based only on the evidence if identification we are not prepared to attach any importance to this evidence and we consider him entitled to the benefit of doubt. 13. Before we pass on to deal with the other Appellants it would be apposite to dispose of the general argument raised in this case, namely, whether the prosecution witnesses had an opportunity to see and recognise the miscreants. In that connection the place where the witnesses arrived and from where they saw the occurrence is of primary importance. Sri Kant (PW 1) stated that the witnesses, namely, Shobhnath, Rafi Ahmad, Parbhu and Jhagru (PWs 3, 4, 15 and 16) and others had arrived on heading their alarm and stood to the north of his house at a distance of 30-35 paces from the dacoits and that there was a bamboo clump to the north of his house at a distance of 25-30 paces. Smt. Ram Dulari (PW 2) stated that these witnesses had stood behind a mango tree which was at a distance of 5 or 7 paces to the north of her house. Smt. Ram Dulari (PW 2) stated that these witnesses had stood behind a mango tree which was at a distance of 5 or 7 paces to the north of her house. Shobhnath (PW 3) stated that he had seen the occurrence from near the mango tree at a distance of 15 or 16 paces from Bhagwan Das's house. It has also come in his evidence that Rafi Ahmad (PW 4) had fired the shots from his gun by the side of the mango tree. The Investigating Officer has shown the mango tree in the site plan at a distance of 23 feet from the house of Bhagwan Das towards the west and slightly towards the north from the main door of Bhagwan Das's house. He has also shown by letter 'Y' the place where the various witnesses arrived and took their positions at the time of the commission of the dacoity. We do not find any discrepancy in the testimony of these witnesses which makes it clear that they had taken, their positions near the mango tree situate to the north-west of the place where the dacoits were operating. Their statements should not be taken literally. Although each witness speaks of the distance from the house of Bhagwan Das yet it appears that they had used that word loosely and what they meant was the distance from the main door of the house leading to the kothri from where the dacoits were removing the property. Similarly we are not inclined to attach any significance to the varying distances mentioned by the various witnesses. The villagers naturally lack accuracy in their sense of distance. The evidence of the prosecution witnesses read as a whole inspires confidence and there remains no doubt that the witnesses had come and stood at a distance from where they were able to recognise the dacoits. 14. The prosecution evidence also leaves no doubt that there was enough light to enable the witnesses to identify the dacoits. There was a lantern burning at the door of the house of Sri Kant (PW 1). It was a moonlit night. Besides, Shobhnath and Rafi Ahmad (PWs 3 and 4) had also torches with them and the dacoits flashed their torches from time to time. The victims of dacoity and the witnesses had ample opportunity to see the faces of the dacoits. It was a moonlit night. Besides, Shobhnath and Rafi Ahmad (PWs 3 and 4) had also torches with them and the dacoits flashed their torches from time to time. The victims of dacoity and the witnesses had ample opportunity to see the faces of the dacoits. From the vantage point and the distance where they stood they would be clearly in a position to watch the activities of the dacoits in the kothri and outside it in the light of the lantern which was burning at the door of Sri Kant's house. Therefore, we do not find any reason to discard the testimony of the prosecution witnesses who identified the accused persons. 15. Mathura : He was arrested on the 21st March, 1967 at 4.30 a.m. from his house in village Surecha, PS Khiri, district Allahabad. SI Rajdeo Singh (PW 43) stated that this accused was kept baparda until he was admitted to Jail. Identification proceedings with regard to this accused were held on the 17th April, 1967 in the Central jail, Naini District Allahabad and were conducted by Sri Uma Kant, Magistrate First Class (PW 8). He was identified by Smt. Ram Dulari (PW 2) an injured witness and wife of Bhagwan Das deceased. She however, could not identify Shitla whose identification parade was held after a long lapse of time. This accused was also identified by Shobhnath (PW 3), a villager who had reached the spot at the time of the occurrence. He, however, committed one mistake in another parade which was held on the same date. Rafi Ahmad (PW 4) also identified this accused. He is the witness who had fired with his gun. He gave the exact location of the Mango tree where all the witnesses had taken their position. Parbhu (PW 15) and Jhagru (PW 16) are the other witnesses who identified this accused. It is clear that this accused was arrested shortly after the occurrence and the test identification with regard to him also took place within one month of the commission of the dacoity. In the circumstances it is within the realm of probability that the prosecution witnesses who had noticed the features of this accused at the time of the commission of the dacoity were able to remember and identify him afterwards in the test parade. In the circumstances it is within the realm of probability that the prosecution witnesses who had noticed the features of this accused at the time of the commission of the dacoity were able to remember and identify him afterwards in the test parade. We have not been able to find any infirmity in the link evidence with regard to him. A suggestion was made on his behalf that he was brought by SI Rajdeo Singh to village Golara and shown to the witnesses. This suggestion was, however, categorically denied by the SI Rajdeo Singh. The suggestion on to the face of it is untenable. This accused was arrested early in the morning of the 21st March, 1967 and brought to PS Khiri at about 4-30 a.m. after the search of the house of Chhutuwa and arrest of his brother Tedhai in village Dighauli. It is improbable that this accused could be taken to village Golara more than fifty miles away and then brought to PS Khiri by 11-30 a.m. There is nothing to suggest that the time of his arrival at the PS Khiri was wrong or fictitious. 16. Shyama : This Appellant is a resident of village Navgavan which is at a distance of about four miles from the place of occurrence. He was arrested from his house on the night of 15th/16th March, 1967 at 1 a.m. The identification parade with regard to him was held on the 18th April, 1967 and he was identified by all the witnesses except Raff Ahmad (PW 4) who had identified Mathura accused. The suggestion made on behalf of this accused was that the witnesses were residents of neighbourhood and they knew him well. The witnesses, however, completely denied this suggestion. There was no proof of the fact that he often came to village Golara and the witnesses had seen and met him. The link evidence about Shyama is also complete and it has not been established that he had been shown to the witnesses before the identification parade. His identification proceedings having been held after about one month only from the date of occurrence, the witnesses are likely to remember the features of the dacoits whom they had opportunity to see at the time of the occurrence. We have already referred to the looted property which was recovered from the possession of this accused. His identification proceedings having been held after about one month only from the date of occurrence, the witnesses are likely to remember the features of the dacoits whom they had opportunity to see at the time of the occurrence. We have already referred to the looted property which was recovered from the possession of this accused. The evidence with regard to the stolen property also does not suffer from any infirmity. It is curious that the learned Counsel who appeared for this accused did not advance any argument with regard to the looted property alleged to have been recovered from him. 17. Chhutuwa : He claimed that he had lived in village Navgavan for eiglit years and had often gone to village Golara. This allegation was, however, not substantiated by any evidence. On the contrary, all the prosecution witnesses denied having ever seen this accused prior to the occurrence. There is also no force in the defence suggestion that he had been shown to the prosecution witnesses. He was kept baparda "and the link evidence is complete. Chhutuwa surrendered in the court of the Judicial Officer, Meja at Allahabad on the 10th April 1967 and he was placed in the custody of Ram Sewak (PW 37) head constable. The link evidence relating to this Appellant is furnished by the statement of Ram Sewak (PW 37) head constable and Ram Nagina Singh (PW 39), lock up Moharrir. The latter witness testified to the fact that Chhutuwa had been brought to him Baparda and he had taken him in that condition to the Central Jail, Naini and had not given any opportunity to any body to see him. The statements of both these witnesses have remained unchallenged. The identification parade relating to this accused was conducted on the 18th April, 1967 and he was correctly identified by Smt. Ram Dulari (PW 2), Rafi Ahmad (PW 4) and Jhagru (PW 6). Thus, the test parade relating to this Appellant was completed within one month of the commission of dacoity and we have no reason to doubt that the identifying witnesses were able to see and recognise the dacoits at the time when the offence was committed. We have already referred to the fact that the looted property was recovered from the possession of this Appellant as well. The evidence proving that fact does not suffer from any discrepancy and must be accepted. We have already referred to the fact that the looted property was recovered from the possession of this Appellant as well. The evidence proving that fact does not suffer from any discrepancy and must be accepted. In fact, in his argument before us the learned Counsel1 for this Appellant did not attack that evidence at all. 18. Thus, after considering the entire evidence in the case and the circumstances as well as the back ground in which the dacoity was committed we are of the opinion that excepting in the case of Shitla Appellant the prosecution has been able to prove its case beyond reasonable doubt against the other Appellants. The evidence of identification is reliable and can sustain their conviction. 19. The result is that Cr. A. No. 461 of 1969 is allowed. The conviction and sentence of the Appellant Shitla are set aside. He is in jail. He shall be released forthwith unless required in connection with any other case. Cr. As. Nos. 456 of 1969 and 558 of 1971 are dismissed. The conviction and sentence of the Appellants Mathura, Shyama and Chhutuwa are maintained. They are in, jail. They shall serve out their sentence. Cr. A. No. 461/69 allowed. Cr. As. Nos. 456/69 arid 558/71 dismissed.