Dharamvir @ Master @ Dan Singh vs State of U.P.

Hon''ble Vinod Prasad J.

The sole appellant Dharamvir @ Master @ Dan Singh is aggrieved by his conviction u/s 395 I.P.C. and imposed sentence of five years RI recorded by IVth Additional Session''s Judge, Aligarh vide impugned judgment and order dated 15.11.1980 passed in S.T. No. 282 of 1980, State Vs. Habib and another relating to P.S. Jawan, District Aligarh.

Prosecution case in nut-shell, as was scripted by informant Kehar Singh, in his written FIR Ext. Ka-1,was that, on the intervening night between 22/23.1.80 at 11 a.m., ten or twelve dacoits, out of whom four or five were armed with guns and rest of them were armed with lathis and knife, trespassed into informant''s house alighting from roof staircase and, after breaking open latch of the room, where informant and his issues were sleeping, with the help of a crowbar (Sabbal) trespassed into it. Informant''s father, who was sleeping in another room, woke up because of commotion and came into the enclosed courtyard (aangan) where he was caught and belaboured by the dacoits who had bet other house inmates also including P.W. 1. Some of the dacoits, who were moving to and fro, were flashing torches and were speaking local dialect. The dacoits were identified by the informant, his father, brother Soran Singh and Rajendra Singh in the light of torches as well as lantern light, which was burning in the court yard. On hue and cry raised by the house inmates, village pradhan Saudan Singh and co villagers Harish Chandra, Bhudev, Mawasi and Tota Ram arrived at the scene of the incident. Resorting to firing, dacoits escaped from informant''s house and then entered into the house of Harish Chandra where also they committed dacoity and had belabored Kailashi wife of Harish Chandra. They subsequently committed dacoity in the houses of co-villagers Mawasi, Tota Ram, Chhatra Pal, Karan Singh, Megh Singh, Rohan Singh, Babu Lal, Bhudev, Ram Chandra and Badam Singh. List of looted articles consisted of silver ornaments, both of male and female, cash money, attires, watches, table lamps etc.

FIR about the incident was lodged by Kehar Singh at the police station Jawan, on the following morning 23.1.1980 at 6.30 a.m., as crime no. 18 of 1980, under sections 395, 397 I.P.C. against unknown dacoits, which FIR was registered by head moharir Jagat Singh by preparing chik FIR Ext. Ka-2 and GD entry Ext. Ka-3. Investigation into the crime was taken up by Nagendra Kumar Sharma S.O. Jawan, P.W. 4., who prepared site plan, Ext. Ka-4, examined the lantern and the torch and had given it in custody vide Ext. Ka-5 and Ka-6.PW4 arrested the appellant accused Dharamvir @ Master @ Dan Singh and another accused Habib at 4 p.m. on 23.1.80 and had put them under veil and lodged them in police lockup at police station Jawan. From the possession of the appellant one pistol and two live cartridges and looted article in a bag were recovered. Concluding investigation, P.W. 4 had charge sheeted both the accused, appellant as well as Habib, vide Ext. Ka-7.

Case of the accused, after they being summoned, was committed to the Session''s Court, where it was registered as S.T. No. 282 of 1980, State Vs. Habib and another. Both the accused were charged with the offence of dacoity.

During trial, prosecution relied upon testimonies of five of it''s witnesses, out of whom, Soran Singh P.W. 1, Rajendra Singh P.W. 2 were fact witnesses. Formal witnesses included head moharir Chetram Singh P.W. 3, who had taken the accused under veil to Aligarh jail along with constable Shivbran Singh, N.K. Sharma S.O. P.W. 4 is the Investigating Officer and Sri Fasi Uddin, Special Executive Magistrate P.W.5 who had conducted identification parade of the accused on 19.4.1980 and had proved the identification memo Ext. Ka-8.

In their statements u/s 313 Cr.P.C., accused claimed their false implication. Appellant Dharamvir @ Master @ Dan Singh took additional defence that he was shown to the witnesses P.W. 1 and P.W. 2 and that is how he was identified only by P.W. 1 and P.W. 2 Soran Singh and Rajendra Singh out of thirteen witnesses, who were paraded in the identification proceedings. Thus, numerological, identification of the appellant is less than even 20%.

Trial Judge after scanning the prosecution version and vetting of the evidences produced before it concluded that prosecution had failed to establish guilt of accused Habib and, therefore, acquitted him. It however convicted appellant Dharamvir @ Master @ Dan Singh only on the basis of identification by the two witnesses and had sentenced him for five years RI, which conviction and sentence is under challenge in the instant appeal.

Appeal was filed in 1980 and after a gap of three decades when it was called out for hearing, nobody appeared for the appellant and hence Sri P.C. Srivastava Advocate was appointed as amicus curiae to assist the Court in disposal of the appeal as to keep the appeal pending on the dockets of this Court would not have served any useful purpose.

Castigating and criticizing the impugned judgment of conviction and sentence, it is contended by learned amicus curiae that identification by two persons out of thirteen persons who had taken part in identification proceedings was wholly insufficient to convict the appellant. It is further submitted that P.W. 1 Soran Singh had testified before the Court that from the time dacoits entered into the house till he ran out of his house, he could not identified any of the dacoits and in view of such a deposition, identification of the appellant by P.W. 1 could not be relied upon. It is next submitted that Rajendra Singh P.W. 2 was not a witness during investigation nor he was interrogated by the I.O.u/s 161 Cr.P.C. and he is a got up witness and, therefore, no reliance can be placed on his testimony. It is further submitted that appellant is not named in the FIR and prosecution allegation that the dacoits were identified in the torch lights flashed by them on their own faces is patently absurd. It is further submitted that the appellant was arrested on 23.1.1980, following day of the incident, but his identification was conducted on 19.4.80, more than seventy seven days after and, therefore, no reliance on such an identification can be placed. It is next submitted that Kehar Singh informant was not examined by the prosecution nor the record reveals as to why he was withheld and, therefore, prosecution version is incredible. Learned amicus curiae further submitted that the entire prosecution version is false and cannot be affirmed for the reason that although co-accused Habib was identified by six persons and from him looted articles were also recovered but the trial Judge disbelieved his involvement in the crime and acquitted him. Trial Judge did not even cared to frame charge u/s 412 I.P.C. and, therefore, entire prosecution version remains unsubstantiated. It is further submitted that the prosecution allegations that unknown dacoits were bare faces and had not attempted to conceal their identities is also an unnatural conduct on which no reliance can be placed nor any credibility can be attached to such testimonies by fact witnesses. Primarily on these submissions, learned amicus curiae submitted that the conviction of the appellant is unsustainable and he deserves acquittal.

Learned AGA however endeavoured to support the judgment of conviction.

I have considered the arguments raised by both the sides. Perusal of the record indicates some very unsatisfactory and disquieting features. It is not known why the informant was not examined by the prosecution. This certainly has prejudiced the case of the appellant. Two facts witnesses relied upon by the prosecution were P.W. 1 and P.W. 2, who are non-else than brothers of the informant. Although they may be present at the scene of the incident but what is very weird is the fact that the I.O. did not interrogate Rajendra Singh P.W. 2 during investigation nor penned down his 161 Cr.P.C. statement. Why the I.O. did not do it, is not known but what seems to be plausible is that this witness does not seems to be present in the house when incident occurred and, therefore, was not interrogated by the I.O. First fact witness P.W. 1 in his deposition at page 16 of the paper book had made categorical assertion that he was given a fist blow but he had not sustained any serious injury. He further stated that from the time dacoits entered into his house till he escaped out side he could not identify any of the dacoits. This deposition, at page 6 of the original record of the trial court in the last, makes appellant''s identification by this witness suspect and unreliable. All the more un-convincing this fact is because trial Judge himself has recorded a finding that there was no sufficient light for such identification. On this aspect, trial Judge at internal page 5 of the impugned judgment, has observed that in the site plan, I.O. had not shown the place where the lantern was hanging. In such a view, whether there was a lantern at all or not also remains an un established fact. Further at page 46 of the paper book, internal page 8 of the impugned judgment, trial Judge has observed that the lantern was lighted in the dalan during dacoity but Rajendra Singh P.W. 2 could not have identified the faces of the dacoits in such lantern light. Attour, trial Judge himself disbelieved prosecution evidence that dacoits will flash torches on their faces to facilitate their identification.

In above view, so far as source of light and opportunity to identify is concerned, it has not been proved that the same were available during the incident and hence identification of the appellant is not a convincing evidence and the same has not been established beyond any shadow of doubt. It is recollected here that the incident had occurred in the wintry night of January, 1980 when there must have been fog mist and in such a view in scattered flickering of lantern light, when presence of lantern itself is not established, cannot be confidence inspiring evidence to convict the appellant and hold him guilty. No charge u/s 412 I.P.C. has been framed against the appellant and hence there is no corroborative evidence that the appellant participated in the dacoity. Co-accused Habib has already been acquitted. Prosecution allegation that the appellant, though unknown, had not taken precaution to conceal his identity during dacoity is not believable and does not appeal to common sense. Identification of the appellant was conducted after seventy seven days and no viable and acceptable reason had been spelt out by the prosecution for such belated and delayed identification, which caste a doubt on the entire identification proceeding and supports defence version that the accused were shown to the witnesses and that is why it was delayed. In such a view, it is difficult to believe that both the fact P.Ws. would remember special feature of the appellant to identify him after such enormous delay. On this aspect, reliance can be had to some of the decisions by this court as well as by apex court. It has been held by the apex court in Musheer Khan @ Badshah Khan and Another Vs. State of Madhya Pradesh, as under:

In so far as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24.01.2001 and the incident is of 29.11.2000, even though A-5 was arrested on 22.12.2000. There is no explanation why his identification parade was held on 24.01.2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or High Court on such delayed T.I. parade for which there is no explanation by the prosecution.

In Mahabir Vs. The State of Delhi, it has been observed by the apex court as under:-

As was observed by this Court in Matru alias Girish Chandra Vs. The State of Uttar Pradesh, identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh Vs. Izhar Hussain and Another, ). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short the ''Evidence Act''). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

Other referable decisions are Satrughana Alias Satrughana Parida and others Vs. State of Orissa: 1994 SCC (Crl) 1424 (paragraph 2), Soni v. State of Uttar Pradesh, (1982) 3 SCC 368a , Chotey Lal Vs. State of U.P.: 1994 SCC (Crl) 144 (paragraph 4) and Malkhan Vs. State of U.P.: L 2004 ACC 273 (paragraph 15) and Rajesh Govind Jagesha Vs. State of Maharashtra: 1990 (Crl) 1452 (paragraph 4).

Apex Court in the decision of Rajesh Govind Jagesha (supra) in paragraph 4 has been pleased to hold as under:

This Court in State of AP. v. M.V. Ramana Reddy (Dr.) held that where there is unexplained delay in holing the identification parade, the evidence of the prosecution regarding identity of an accused cannot be held absolutely reliable and in such a case the accused is entitled to the benefit of doubt. The explanation for delay in holding the identification parade offered by the prosecution in the instant case is not trustworthy. The non-availability of Magistrate in a city like Bombay for over a period of five weeks from the date of the arrest of Accused 1 and 2 and three week from the arrest of Accused 3 and 4cannot be accepted. It is not denied that scores of Magistrates are available in the city of Bombay and that the investigating agency was not obliged to get the parade conducted from a specified Magistrate. The High Court was not justified in holding that the parade could not be held early on account of alleged difficulties of the Special Executive Magistrate. It was not for the defence to prove that the parade held was suffering from legal infirmities because, admittedly, the onus of proof in criminal case never shifts as the accused is presumed to be innocent till proved otherwise, beyond all reasonable doubts, by the prosecution. In cases where a person is alleged to have committed the offence and is not previously known to the witnesses, it is obligatory on the part of the investigation agency to hold identification parade for the purpose of enabling the witnesses to identify the person alleged to have committed the offence. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Such a parade may not be necessary in a case where the accused person is arrested on the spot immediately after the occurrence. The evidence of identifying the accused person at the trial, for the first time, is from its very nature, inherently of a weak character. This Court in Budhsen vs. State of U.P. held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witnesses came to pick out the accused person and the details of the part which such persons played in the crime in question with reasonable particularity. The test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the court for the commission of the crime. The holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled position of law and expeditiously The delay, if any, has to be explained satisfactorily by the prosecution."

In Satrughana Alias Satrughana Parida (supra) (paragraph 2), Apex Court has been pleased to observe as under:

Where the fate of the accused persons hags solely on the identification by the witnesses who claim to have seen them almost 1-1/2 months prior to the date of identification, it is the duty of the prosecution to state why the identification parade could not be arranged immediately after the arrest of the accused and without loss of time. Unless there is good reason for the delay, the value regarding the evidence of identification gets adversely affected. This dilution of the evidentiary value of identification by witnesses who claim to have seen the accused at night almost 1-1/2 months back but who did not in their statements before the police or in the first information report reveal any special features for identification, is a matter which weights against the prosecution. It must be remembered that the accused persons are required to be produced before the court latest within 15 days for their arrest and, therefore, it would be reasonable to infer that they were so produced. There is nothing on record to show that the prosecution had taken care to ensure that their identity was not revealed when they were taken to court and produced as required by law. In these circumstances, when the prosecution witnesses had admitted in their oral statements that they had not noticed any special identifying features, it becomes unsafe to place implicit reliance on the evidence regarding identification emanating from the proceedings at the test identification parade. In these circumstances since there is no other corroborative evidence, we find it difficult to place implicit reliance on the identification made at the test identification parade. We are, therefore, of the opinion that the appellants are entitled to benefit of doubt.

In Soni (supra) in paragraph 2, Apex Court has been pleased to observe as under:

After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant.

In another decision, Chotey Lal (supra) (paragraph 4), Apex Court has been pledged to observe as under:

We have heard Mr U.R. Lalit, learned counsel for the appellant. He has challenged the veracity of the test identification parade on the ground that it was held two months and twenty days after the appellant''s arrest. As mentioned above the appellant was arrested on April 4, 1969 and the test identification parade was held on June 24, 1969. There is nothing on the record to show as to why the prosecution could not hold the test identification parade immediately after the arrest of the appellant. In the absence of any other evidence the gross delay in holding the test identification parade makes the prosecution case doubtful. We have carefully and searchingly gone into the statement of witnesses including the Investigating Officer and other material on the record to find out any corroboration to the identification evidence but without any success. The proceedings of the test identification parade showing that the face of the appellant was covered with patches at various places does not inspire confidence. PW 1 and PW 2 made bare omnibus statements that they saw the appellant committing the dacoity. They do not associate their memory with any overt act or weapon in the hands of the appellant. Taking overall view of the evidence we are of the view that the prosecution has not been able to take the case against the appellant beyond reasonable doubt. We, therefore, give benefit of doubt to the appellant and acquit him.

Without going further into the details, I am of the opinion that from the discussion made above, conviction of the appellant Dharamvir @ Master @ Dan Singh cannot be sustained, therefore, appeal deserves to be allowed.

Wrapping up of the discussion, appeal of appellant Dharamvir @ Master @ Dan Singh is allowed. He is acquitted of the charge u/s 395 I.P.C. He is on bail, he need not surrender, his bail bonds and surety bonds are discharged.

Let a copy of the judgment be certified to the trial court for it''s intimation.

Sri P.C. Srivastava advocate, learned Amicus Curiae has rendered valuable assistance in deciding the appeal, which was pending since last three decades and, therefore, he is directed to be paid Rs. 8,000/- as his fees by the office of this Court.