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2007 DIGILAW 383 (ALL)

INDRAJIT ALIAS INDUL v. STATE OF U P

2007-02-19

BARKAT ALI ZAIDI

body2007
BARKAT ALI ZAIDI, J. The incident of dacoity, out of which this appeal arises, occurred on 24/25-1-1987. The case was decided by the Sessions Court on 26-3-1992 The appeal was filed on 31-3-1992. This will show that the matter comes up, now, for adjudication after nineteen years of the occurrence, and the appeal itself is more than 14 years old. What a shame for the judicial process?. It is high time, we took some radical steps for early disposal of cases, because, steps which have hitherto, been taken, are perfunctory and have not yielded result, nor are going to produce the desired result. 2. Coming to the case in hand, there were originally 6 accused in the case, out of which, accused Ram Autar, Ram Sharan and Kalika, were named in the F. I. R and were known to the complainant. Accused Ram Avtar died before commencement of Trial in the Sessions Court. Accused Ram Saran and Kalika were acquitted by the Trial Court. Against the remaining accused, Indrajit, Chhotey Lal and Tribhuwan, evidence was of identification and the accused Chhotey Lal and Indrajit were convicted under Section 395 I. P. C. while accused Tribhuwan was convicted under Sections 395 and 412 I. P. C. Accused Tribhuwan is reported dead and the present appeal has been filed only by the accused Indrajit and Chhotey Lal. 3. I have heard Sri Abid Ali, learned Counsel for the appellants and Additional Government Advocate for the State. 4. The prosecution version is that in village Garai Chakdiya, which is within the jurisdiction of Police Station Kotwali District Pratapgarh and is 4 Kms. away from the police station, a dacoity took place on the night between 24/25-1-1987 at about 11. 30 and about 10-12 persons barged into the house of Rajit Ram P. W. 1 and looted property. The dacoits gave a beating to one Smt. Pragasi Devi, sister-in-law of P. W. 1 and on hearing her cries, the other inmates of the house were awakened. A Number of villagers collected, on noise and cries, being raised. The dacoits are also said to have hurled bombs while they were running away. During the course of dacoity P. W. 2 Ram Sukh, the brother of P. W. 1 Rajit Ram was given a beating by the dacoits and he received injuries. 5. A Number of villagers collected, on noise and cries, being raised. The dacoits are also said to have hurled bombs while they were running away. During the course of dacoity P. W. 2 Ram Sukh, the brother of P. W. 1 Rajit Ram was given a beating by the dacoits and he received injuries. 5. A First Information Report about the alleged occurrence was lodged next morning around 8 Oclock at Police Station Kotwali District Pratapgarh. The investigating of the case was conducted by P. W. 4, S. I. Udai Narayan who visited the spot and prepared a site plat (Exk. 5) and recorded the statement of the witnesses under Section 161 Cr. P. C. 6. It is, therefore, the evidence of identification against Indrajit and Chhotey Lal, which is to be examined. 7. In judicial configuration, identification evidence has always been classified as weak evidence. This consistent perspective of Courts is not without good reason. Identification is made in respect of persons who are un-known to the witness and it is not always easy or probable to remember and recapitulate the face of the unknown person unless there was some direct contact with him and there was an opportunity to observe him from close quarters. In cases of dacoity, the witnesses are generally supposed to see the accused in the night and in sparse light and they have usually only a fleeting glance. Unless some body has a very sharp memory, it is not easy to remember his face and that too after a lapse of some time. If a person sought to be identified, as some peculiar features about him, which may have been observed by the witnesses and which he is able to narrate, that may of course lend credibility to the identification, otherwise, chances of the witnesses recapitulating the face of the accused are dim. 8. The other reason is that identification evidence is worth reliance, only, if the accused has not been shown to the witness before identification, and that is why, evidence is led that the accused was kept baparda. What usually, however, happens, is that the accused is shown to the witness before identification and it is only then that he identifies the accused at the identification parade before the Magistrate. The Magistrate, of course remains unaware of the fact that the accused has been shown to the witnesses. What usually, however, happens, is that the accused is shown to the witness before identification and it is only then that he identifies the accused at the identification parade before the Magistrate. The Magistrate, of course remains unaware of the fact that the accused has been shown to the witnesses. The Rule of the accused being kept Baparda is generally observed more in its breach than practice and Courts cannot be unmindful of such practices. 9. Yet, another reason is that when a dacoity takes place, the Station Officer of the Police Station is hauled up by the higher police authorities and is asked to work out the dacoity as soon as possible, otherwise, he face a transfer or disciplinary action because dacoity is considered a very heinous offence which the police are supposed to prevent. When, therefore, the real culprits are not traceable, the police produces some other persons, who may be having a past criminal record as the perpetrators of the dacoity and the Thana police claims that the dacoity had been worked out and the accused had been identified. 10. These are the administrative aspects of which the Courts cannot be deemed unaware. It is for all these reasons, that identification evidence is usually considered weak evidence. 11. The Counsel for the appellant pointed to the delay in lodging of the F. I. R. and the consequent possibility of a false version being incorporated therein. It has been explained by the P. W. 1 that there was a river in between the village and the police station and the river was swollen and it was not possible to cross the same in the dark night, and that is why, they had to wait till morning and they could find a boat which could enable them to cross the river and then they went to the police station to lodge the F. I. R. This explanation from the side of the P. W. 1 with regard to any possible delay in the F. I. R. seems in the circumstance sufficient. 12. The Counsel for the appellant further argued that the trial Court has found that the accused who were named in the F. I. R. were found to be innocent and they were, therefore, falsely implicated by the complainant. 12. The Counsel for the appellant further argued that the trial Court has found that the accused who were named in the F. I. R. were found to be innocent and they were, therefore, falsely implicated by the complainant. It was argued that the evidence of the prosecution in respect of the other accused in the case should also not, therefore, be relied upon. 13. Falsus in uno and falsus in omnibus is neither a Rule of Law nor a Rule of Prudence and it cannot be said that a person who has made an incorrect statement should be deemed a lier for all times to come. The Court, however, could keep in mind the proclivity of the complainant to implicate innocent persons and subject the testimony to a more careful and close examination. 14. According to the prosecution version, after the dacoits arrived, the first thing which they did was to give a beating to Pragasi Devi, who was sleeping in a Verandah. It was on the cries and shrieks of Pragasi Devi, that the other inmates of the house were awakened and then they raised an alarm and villagers collected and thereafter, the dacoits retreated. It is wholly improbable that the first thing which the dacoits will do, after entering the house, is to beat a lady for no rhyme and reason. Their purpose was to commit dacoity, and there was no point, in giving a beating to the lady in the first instance. It is in the circumstance manifest, that the fact of Pragasi Devi being attacked by the dacoits immediately after the arrival by the dacoits has been introduced, with a view to provide evidence about the fact, that the other inmates of the house woke up, and, then they faced the dacoits and also saw their faces. 15. It was also pointed out by the Counsel for the appellant that the haul from the dacoity was not worth the effort and the risk of the participation of almost a dozen dacoits. Since no list of stolen property was visible in the file, the Counsel for the State was asked about the same and he also could not point out any list which may have been furnished to the police containing the particulars and details of the stolen property. Since no list of stolen property was visible in the file, the Counsel for the State was asked about the same and he also could not point out any list which may have been furnished to the police containing the particulars and details of the stolen property. P. W. 2 has, however given in his statement the items which were taken away by the dacoits during the course of dacoity. The approximate valuation of the property has not been given by P. W. 2 but it does appear from the list of property given by him that it was hardly worth the effort of a dozen persons. This, however, is not a very significant circumstance though alongwith other circumstances, it could be taken note of. 16. Identification parade of the accused was conducted by Sri Durga Charan S. D. M. P. W. 5, vide identification memo (Exk. 17) dated 19-5-1987. 17. What has, therefore, to be examined is whether the identification evidence is worthy of reliance or not? 18. Accused Indrajit has been identified by Awadhesh P. W. 3 and Ram Sukh P. W. 2 while accused Chhotey Lal has been identified by Rajit Ram P. W. 1 and Ram Sukh P. W. 2. There are two good witnesses against both these persons and their evidence is to be examined in order to ascertain the credibility of the identification. P. W. 1 has said in his statement that on the night of the occurrence, he was sleeping in his room while his brothers wife Pragasi Devi was sleeping in the Verandah and his brother Ram Sukh P. W. 2 and one Uder Singh were sleeping in Verandah in an adjoining house and his brother Awadhesh Bahadur Singh P. W. 3 was sleeping in another room adjoining the Verandah while his wife and his brothers wife were sleeping inside the house. When dacoits arrived, they started beating Smt. Pragasi Devi on whose cries, the other inmates of the house were awakened and they raised an alarm and then the other villagers arrived there and the dacoits were given a chase but the dacoits are said to have thrown bombs which scared the villagers and the chase was abandoned. 19. The same story has been narrated by the P. W. 2 Ram Sukh and P. W. 3 Awadhesh Bahadur Singh which need not be repeated. 20. 19. The same story has been narrated by the P. W. 2 Ram Sukh and P. W. 3 Awadhesh Bahadur Singh which need not be repeated. 20. The crucial circumstance is to see and assess whether there was sufficient light and whether there was sufficient opportunity for the identifying witnesses to have seen the faces of the dacoits so as to enable them to identify them subsequently at the identification parade. 21. The sources of light are said to be a lantern which was burning in the Verandah of the house and torch light. It is admitted that the night was completely dark. The fickle and feeble light of a lantern cannot be normally considered sufficient to dispel the aura of darkness and provide sufficient light in which the witnesses may be able to see the faces of the dacoits. The light of the lantern has very limited reach and unless the person sought to be identified and the persons identifying both stand near the lantern, it is hardly possible to see the face of the persons sought to be identified. The dacoits will naturally not assemble near the lantern and will be moving about the engaged in the operation of dacoity. A single lantern cannot, therefore, be considered sufficient to provide adequate light in a dark night in which faces of dacoits may be seen during the course of dacoity. 22. As regards torch light, there is merely a cursory statement of P. W. 1 about the fact that he has seen the accused in torch light also. 23. In the din and bustle of the incident, it is difficult for the witnesses to pin point torch light on the faces of the dacoits which would enable them to see and identify them. It has not been clarified by the witnesses whose face, in particular, was seen in torch light. It has also been stated by P. W. 3 Awadhesh Kumar that the villagers who arrived at the spot at the time of occurrence, were also carrying torches but a general statement of this nature cannot be considered sufficient to conclude that the witnesses could see the accused in torch light. It has also been stated by P. W. 3 Awadhesh Kumar that the villagers who arrived at the spot at the time of occurrence, were also carrying torches but a general statement of this nature cannot be considered sufficient to conclude that the witnesses could see the accused in torch light. Moreover, in a situation like this, the usual attitude of the villagers is to ward off the dacoits, and for that purpose they usually carry sticks or dandas or other weapons which may be available, and the emphasis is not on the use of torch for the purposes of seeing the face of dacoits. 24. None of the identification witnesses has given any special feature which led them to remember the face of the accused nor has any other circumstance been indicated by the witnesses which may have helped them to recollect the faces of the accused. A general roving identification of this nature in the light of lantern and torch cannot in the circumstances be deemed sufficiently credible so as to provide a firm basis for an inference that the accused were the actual participants in the dacoity. 25. In case of identification evidence, the Court should be fully satisfied about the veracity of the evidence before finding the accused guilty so that what happened in the famous case of Adolf Beck and Thoms Hoag is not repeated (reference to the case is available in an out line of Scientific Criminology Revised Edition Cassell London ). 26. In view of the aforesaid discussion, the conviction of the appellant, recorded by the trial Court cannot be sustained and the appeal is, therefore, allowed and the appellants are acquitted of the charge leveled against them. Appeal allowed. .