Modan Singh vs The State

Teja Singh, C.J.—Modan Singh has been. convicted by S. Mehar Singh, Additional Sessions Judge, Bhatinda, under Sections 394/397 read with section 75, I.P.C. and has been sentenced to 10 years'' R.I. He has appealed from jail.

We have gone through the record of the whole case with the help of Mr. Moti Ram, counsel for the State and on consideration of all facts and circumstances, we are of the opinion, that the case against the Appellant has not been proved beyond doubt. As shall be shown hereafter, one of the reasons why we cannot maintain the Appellant''s conviction is that the case was not properly conducted in the trial Court and important evidence bearing upon the identification of the Appellant was not produced. It is a pity that even the learned Sessions Judge did not apply his mind to the facts of the case and probably contented himself by merely recording the evidence rather than in taking intelligent interest in the proceedings.

The prosecution case is that three persons came to the house of Jaimal Singh P.W. 5 on 5th Bhadon, 2006 at about 4 P.M. Jaimal Singh''s son Puran Singh was at that time at his shop, which is about 100 karams from the house. Jaimal Singh appears to be an old man. His age as recorded by the Sessions Judge is 60/77 years. It is alleged that the culprits dragged Jaimal Singh inside his house and asked him to surrender whatever he had on the pain of being put to death. On his refusal to disclose anything he was given a beating. Then the culprits started searching for the valuables and removed ornaments from the persons of Jaimal Singh''s two daughters-in-law, namely Nihal Kaur and Mst. Gurdev Kaur P.Ws. 6 and 7 respectively. Hearing the outcry raised by Jaimal Singh, Puran Singh came running to the house but as soon as the culprits spotted him he was asked to make himself scarce otherwise he would be shot at. On this Puran Singh hurried to the village and informed the lambardars and others. Some of the persons of the village who had gun licenses fired shots in the air. In the meanwhile the culprits, who had succeeded in collecting sufficient booty, made good their escape. Puran Singh went to the nearest railway station and sent a telegram to the police station, Bhatinda. After sending the telegram he returned to his house and as he was informed by his people that the robbers had taken away valuable property including currency notes and Jewellery, he went to the police station and there lodged a report. Inspite of the fact that the Police Officers proceeded to the spot without delay and took up the investigation of the case, nothing happened till the 20th Sept. 1950 when Modan Singn was arrested by some officer attached to the Rama Police Station. A parade for his identification by Jaimal Singh and other inmates of the house, was held on the 26th and the case against him was put in Court.

That Jaimal Singh was robbed of valuable property on the evening of the 20th August, 1949 and in the course of robbery he was given a severe beating cannot be denied. We have on this point Jaimal Singh''s own statement corroborated by other witnesses. His injuries are proved by Dr. Amar Singh It was deposed to by some of the witnesses that Mst. Nihal Kaur and Mst. Gurdev Kaur were belabored but they were not medically examined. It appears that all that must have happened in their case was that the ornaments were removed from their persons by force and it may be that they received certain bruises etc. The only question that we are called upon to determine in this case is whether the Appellant has been proved to be one of the robbers. The evidence consists merely of his identification in the parade and the learned Sessions Judge has quoted a number of authorities in support of the proposition that conviction can be based merely upon evidence of this kind. We have no hesitation in saying that if the evidence of identification is satisfactory and leaves no doubt that the witnesses who claim to have identified the accused, must have done so, there is no reason why conviction should not be recorded merely on the strength of that evidence. The trouble, however, in this case is that the evidence on the basis of which we are asked to hold that the Appellant was identified by the witnesses, is not very satisfactory. Before we discuss the evidence of these witnesses, it is necessary to point out that in the case of this kind, when the Appellant was arrested a month and a year after the occurrence, it was necessary for the prosecution to bring on record the circumstances which led them think or suspect that he was one of the robbers. But unfortunately the prosecution did not pay any attention to this aspect of the case. In fact they did not even care to examine any evidence regarding his arrest. Sub-Inspector Gurbachan Singh who was alleged to have arrested Modan Singh, was summoned as a witness but he was not served. It was open to the Public Prosecutor to ask the Sessions Judge to adjourn the case for his evidence but instead of do ling so he made a statement that he gave up Gurbachan Singh. In our opinion Gurbachan Singh was an important witness and the Public Prosecutor should have put him in the witness box but for reasons best known to him, he adopted a different attitude and the learned Sessions Judge even did not consider it necessary to examine him as a Court witness. The result is that we do not know how and on what ground Modan Singh was arrested. It cannot be denied that Modan Singh is a previous convict and though, on one hand, it can toe said that he was a man of questionable character and possibly he did participate in the crime, on the other hand, it can also be stated that the police caught hold of him merely because of suspicion and made a case against him. In any case it was the duty of the prosecution to make their position clear in this respect and unfortunately they did not think of doing so. The other important fact of which mention need be made is that no explanation whatsoever was forthcoming why the identification parade was not held immediately after Modan Singh was arrested. As it has been observed above, he was arrested on 20-9-1950. The application for holding the identification parade was not made till 25th and the Magistrate''s explanation why he did not hold the parade on that day was that the application for the parade was made to him late in the evening. Again there is no explanation why it could not be made earlier. It is stated in the petition of appeal that the Appellant was made over to the C.I.A. after his arrest, and they showed him to the witnesses. In view of the facts mentioned above, we are not prepared to hold that this contention is wholly devoid of force. In a case which depends entirely upon identification of an accusel person in a parade held for the purpose, the prosecution must prove by evidence that the parade was held without any unnecessary delay and that the witnesses who picked him out in the parade as a culprit had no opportunity of seeing him at any time after the incident and before the parade. Evidence of this kind is not a mere formality but is indispensable to establish the identity of the accused and when such evidence is not forthcoming, the benefit of the omission must be given to the accused.

(After discussion of the evidence of identification his Lordship came to the conclusion that it was not reliable. The judgment then proceeds:) For all these reasons, we allow the appeal, set aside the Appellant''s conviction and sentence and direct that he be released forthwith.

Chopra, J.

I agree.