Kuldip Singh and others vs Emperor

Agarwalla, J.—This appeal is from an order of the Additional Sessions Judge of Patna, sentencing five persons to rigorous imprisonment for nine years each after convictions were recorded against them on the verdict of the jury on a charge under S. 395 of the Penal Code. Criminal Appeal No. 140 is preferred by Kuldip Singh against whom the jury returned a verdict of guilty by majority of 3 to 2 and Criminal Appeal No. 143 by other persons against whom the verdict was by a majority of 4 to 1.

The evidence disclosed that on the 21st of May 1933, at about 1 a.m., a dacoity took place at the village of Kheman Bigha in the jurisdiction of Behar Shariff police station. For sometime the police were unable to obtain any clue as to the identity of the dacoits, but on the 26th September a Constable saw one Chhathu Mallah endeavouring to dispose of some-pieces of gold and silver under suspicious circumstances. He arrested Chhathu and subsequently Chhathu made a statement which led to the arrest of a large number of persons. Forty-four of them were subsequently put up at a test identification in October. It is the manner of conducting this test identification which has occasioned some difficulty in this case only 15 non-suspects were mixed with the 44 suspected persons with the re-suit that a witness who was merely guessing was more likely to hit upon a suspect than a non-suspect. No reliance can be placed upon the result of such a test. The evidence against the appellant Kuldip Singh was to the effect that he was mentioned in the confession made by Munshi Dusadh, which was subsequently retracted, and there is also the evidence of a boy named Punit Mahto who picked him out at the test identification. The only evidence, therefore, in addition to the retracted confession of Munshi Dusadh, in so far as the appellant Kuldip is concerned, is this evidence of the boy Punit. Punit it has been shown on three previous occasions made three different statements as to his reason for identifying Kuldip Singh. The learned Sessions Judge has pointed out only two statements and omitted the third, but what is of greater importance is that he did not charge the jury with respect to the peculiar nature of the test identification which has already been referred to. This non-direction appears to me to be of the nature which must inevitably have misled the jury as to the value of the identification by the witness.

The evidence against Radhe Gope, who has preferred a jail appeal, is that he was mentioned in the retracted confession of Munshi Dusadh and was identified at the test identification by prosecution witness No. 16. The only corroboration, therefore, of the retracted confession is again this faulty test identification and it may be noted that the identifying witness had specifically informed the police during the investigation that he would be unable to identify any dacoit even by voice.

The evidence against Bharath Singh, who has also appealed from jail, is that he was mentioned in the evidence of the approver Chhathu and that he was picked out at a test identification by prosecution witness No. 16 and, further, that a torch was recovered from his house. The learned Judge rightly pointed out to the jury but there was no evidence that the torch formed any part of the property stolen at the dacoity and therefore, that it in no way corroborated the evidence of the approver. Against this accused, therefore, there is only the evidence of the approver and the identification of prosecution witness No. 16. Throughout the charge to the jury the learned Judge has treated the evidence of the approver in this case as evidence which required corroboration, but in my opinion he should also have pointed out that the nature of the test identification was such as to afford no reliable corroboration of the evidence of the approver.

Of the accused persons who have not appealed Munshi Dusadh made a confession which has already been referred to and Karu Mahton was mentioned by the approver and from his house was recovered a dohar and a wrapper which were claimed by the complainant as part of the stolen property. The learned Sessions Judge rightly directed the jury that unless they were satisfied that the articles were stolen at the dacoity the finding of them in the house of Karu could not be taken as corroboration of the evidence of the approver.

I have mentioned the evidence against these two accused, persons because if the evidence against them was no more than the evidence against the appellants it would have been necessary to consider the correctness of the convictions recorded against them; the learned Judge''s charge in this respect to them, however, is unobjectionable. In my opinion the verdict against the appellants Kuldip Singh, Radhe Gope and Bharath Singh, as the result of non-direction by the learned Sessions Judge, is vitiated. I would therefore set aside their convictions and acquit them.

Courtney-Terrell, C.J.

I agree.