Ram Jatan Pasi and Banarsi Musahar vs The State of Bihar

A.K. Sinha, J.—Both these appeals were heard together as they arise out of the same case and this common judgment will govern both the appeals.

The Appellants Ram Jatan Pasi, Banarsi Musahar and Uday Pasi have been convicted under Sections 302/34, 307, 120B, 380 of the Indian Penal Code and u/s 27 of the Arms Act for which they have been sentenced to undergo rigorous imprisonment for life u/s 302/34 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for seven years u/s 307 of the Indian Penal Code. Appellant Ram Jatan Pasi and Banarsi Musahar have been sentenced to undergo rigorous imprisonment for one year u/s 380 of the Indian Penal Code but no sentence was awarded to the Appellant Uday Pasi under that Count. No separate sentence has been recorded against the Appellant under Sections 120B of the Indian Penal Code and 27 of the Arms Act. The sentences were ordered to run concurrently.

The fardbeyan of the informant, namely, Dadan Singh was recorded by S.I. A.Z. Kamal, O/c of Mohania P.S. (P.W. 4), on 1.2.87 at 3.00 a.m. The prosecution story, as disclosed in the fard beyan of the informant, is that on 31.8.87 at 7.30 p.m., the informant was serving meal to his guests in the female section of his house and his father Laljee Singh and also taking his meal with the guests. In the meantime, the informant heard sound of firing and four unknown persons came there out of whom two were armed with gun and two were armed with lathi. They were in the age group of 25-30 years and were of dark complexion. It is alleged that they snatched the watch of Ram Nhor Singh and started assaulting the guests but when it was disclosed that they are guests, the culprits left them but fired upon the informant''s father Laljee Singh on his back, as a result of which he fell down. The informant became scared and so started fleeing away but he also sustained splinter injury on his left knee and hid himself in one of the rooms. The informant''s cousin brother Ram Dayai Singh (P.W. 1) also sustained splinter injury on his right palm and fore-head. The informant''s uncle Bahadur Singh and one Yasoda Devi were also shot at in the Court yard. The father of the informant died while he was being removed to Mohania Hospital. The miscreants also killed Baban Singh, elder brother of the informant by inflicting fire arm injury on his chest. The miscreants fired 8-10 rounds but they did not take away any article from the house of the informant. It is alleged that an year before a dacoity was committed in the house of the informant in which one Sudha Pasi was arrested who was lodged in jail and a dispute is going on in the village in respect of Gair Mazarua land between Harijans, Pasi and Gaur as the Harijans want to cultivate the Gair Mazarua land but the father of the informant wanted to construct a school on that land, so, due to that reason the alleged occurrence took place. On the place of the fard beyan a case u/s 302/307/380/324/34 of the Indian Penal Code was instituted against four unknown and the police took up the investigation into the matter. After completing the investigation the police submitted charge sheet against the Appellants under Sections 302/34, 307, 120B, 380 of the Indian Penal Code and 27 of the Arms Act. The case was committed to the Court of Sessions.

The case of the defence is that the Appellants are innocent and have been falsely implicated by the informant due to the dispute going with the informant in respect of the Gair Mazarua land.

In order to prove the charges, the prosecution examined as many as twelve witnesses, out of whom, P.W. 9 Rame Kant Tiwari is a formal witness who proved the formal F.I.R. (Exhibit-5). P.W. 10 Bijay Kumar Singh is also a formal witness, who produced certain material exhibits such as wrist watch, red shawl and a pair of plastic shoe, two live and five empty cartridges from the Malkhana of Mohania P.S. There is nothing worth comment in the testimony of these two witnesses.

P.W. 11 is another formal witness who has proved the carbon copy of the test identification chart (Exhibit-6).

P.W. 5 Dr. Radhika Mohan Sharma conducted autopsy on the dead body of Laljee Singh and Baban Singh at Sub-Divisional Hospital, Bhabhua on 1.2.87 between 10.30 a.m. to 11.30 a.m. and found following ante mortem injuries on the dead body of Laljee Singh.

One lacerated wound 2-1/2" x 1" with margin inverted on the right hip.

On dissection: Brain substance pale, lungs pale, right chamber of heart full of dark clotted blood, left chamber empty, stomach contained above two ounce of semi digested food, intestine full of liquid and gas. Liver, spleen, pancreas and kidney pale, urinary bladder empty. Right hip bone broken. Nature of injury was grievous caused by fire arm. Rigor mortis was present. In the opinion of the doctor death was caused due to haemorrhage and shock on account of the aforesaid injuries which were sufficient to cause death. The time elapsed since death was within 18 hours.

P.W. 5 also conducted autopsy on the dead body of Baban Singh and found the following injuries on his persons.

I. One lacerated wound 1" x 1" x muscle deep with margin inverted and tatooed in the front aspect of the right side of the chest below right nipple.

II. One lacerated wound 1-1/2" x 1" x muscle deep with margin inverted on the posterior aspect of the left side of the chest.

On dissection:-Brain substance pale, chest cavity full of blood, both lungs ruptured and gave pale appearance. Right chamber of the heart full of dark clotted blood, left chamber empty, stomach contained about 1-1/2 ounce of semi liquid food, intestine full of liquid and gas, liver, spleen, pancreas and kidneys pale. Urinary bladder empty. In the opinion of the doctor, injury No. 3 was simple caused by hard and blunt substance whereas injury Nos. 1 and 2 were grievous in nature caused by fire arm. The time elapsed since death was within 18 hours. The death was caused due to shock and haemorrhage on account of injury Nos. 1 and 2.

P.W. 5 has deposed that he removed the cork with cap and two pillets were recovered from the wound and handed over the same to the police. In this opinion, injury found by him were sufficient to cause death. The doctor has proved the post mortem reports (Exhibits-4 and 4/1). In cross-examination, P.W. 5 has stated that injury No. 1 which is a wound of entry found on person of Laljee Singh was superficial in nature and he did not mention the death of injury. He also admitted that the said injury had not affected the vital organ of the body. He could not say about the distance from which the fire arm can cause tatoo injury. From the evidence of the doctor it is established that deceased Laljee Singh and Baban Singh died due to fire arm injuries caused to them.

On the point of the alleged occurrence, P.W. 1 Ram Dayal Singh, P.W. 2 Yashoda Devi, P.W. 3 Bahadur Singh, P.W. 6 Ram Nihora Singh and P.W. 8 Dadan Singh have fully supported the prosecution story and from their evidence it is established beyond all doubt that the alleged occurrence had taken place in the house of the informant in the manner as alleged in the F.I.R. in which Laljee Singh and Baban Singh died due to fire arm injuries sustained by them.

Having reached to the aforesaid conclusion that the occurrence had taken place in the manner as alleged in the F.I.R., the crucial question which emanates for consideration is that whether the Appellants are responsible for committing the offence for which they have been charged. This case actually hinges on the point of identification of the Appellants. P.W. 1 Ram Dayal Singh, P.W. 2 Yasoda Devi claimed to identify the Appellants at the test identification parade conducted by P.W. 12 Shiv Bachan Ram, Judicial Magistrate, Bhabhua on 28.3.37. P.W. 12 has stated that he conducted the test identification parade of suspects Bikua Musahar, Ram Jatan Pasi, Ram Bachan Pasi, Banarsi Musahar and Udai Pasi in which the witness Ram Dayal identified Ram Jatan Pasi by stating that he had identified him in the torch light at the time of the alleged occurrence. He also identified the Appellant Udai Pasi and Banarsi Mushahar in the flash of torch light. P.W. 12 further deposed that witness Yasoda Devi (P.W. 2) had identified Ram Jatan Pasi, and Banarsi Musahar and Udai Pasi (Appellants) in the torch light and stated that Udai was holding a torch in his hand, whereas, Ram Jatan and Banarsi were holding gun whom she identified in the flash of torch light. P.W. 12 has proved the test identification chart (Exhibit-6). In cross-examination, he admitted that it has been mentioned in the Jest identification chart that five suspects were mixed with 45 under trial prisoners but the details about their appearance and the clothes worn by suspects and other under trial prisoners were not mentioned by him. He also did not ensure from the witnesses that whether the suspects were known to them from before nor he mentioned that fact in his test identification chart. It has, therefore, to be considered in this case that how far the evidence of P.Ws. 1 and 2 on the point of identification of the Appellants is reliable and worth placing credence.

It may be stated at the out set that the Appellants Banarsi Musahar and Udai Pasi were arrested on 4.2.87 and the Appellant Ram Jatan Pasi was arrested on 23.2.87 but their test identification parade was held on 28.3.87, in other words, the test identification parade of Banarsi and Udai was conducted after one month twenty four days of their arrest and that of Ram Jatan Pasi after one month four days. Learned Counsel for the Appellants strenuously argued before me that the test identification parade of the Appellant was conducted after a long delay without any explanation for such delay. So, the identification of the Appellants made by P.Ws. 1 and 2 at the test identification parade casts serious doubts on the fairness of the test identification parade and no reliance, much less, any value can be attached to the identification conducted by P.W. 12, who did not conduct the same in proper manner.

It may be stated here that the identification made by a witness at the T.I.P. is not a substantive evidence in law and at best it can be used for corroborating or contradicting the evidence of the witness concerned as given in the Court. Where a witness is not previously known to the accused, the identification of the accused by a witness at the T.I.P. only gives an assurance to the investigating agency that the investigation is proceeding on right lines and such identification made by a witness at the T.I.P. may be used for corroboration of the evidence of that witness at the trial. Nevertheless, so far the delay in conducting the T.I.P. is concerned, it is of paramount importance that the investigating agency must conduct the T.I.P. without any reasonable delay after the arrest of accused where the witnesses claimed to identify the accused.

In the case of Rameshwar Singh Vs. State of Jammu and Kashmir, it was observed that "it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that at the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fair play can be assured both to the accused and to the prosecution."

In another decision in the case of Budhsen and Another Vs. State of U.P., it was observed by the Apex Court that "Keeping in view the purpose of identification parades the Magistrate holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance land caution and (ii) that justice should be done in the identification. Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the Court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seems to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to the identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court."

It would, thus, appear from both the judgments referred to above that the test identification parade should be conducted by the investigating agency without delay and the Apex Court has also pointed out the norms to be followed by the Magistrate, who conducts the test identification parade. In the instant case, as noticed above, it is to be found that the test identification parade of these Appellants was conducted after undue delay without furnishing any explanation for such delay. It is also evident from the evidence of P.W. 12, who conducted test identification parade that he did not make any note of the objections, if any, raised by the suspects while conducting the test identification parade nor there is anything in the test identification chart to show that he made any enquiry from the witnesses as to whether they were known to the accused from before. In the remarks column of the test identification chart (Exhibit-6), P.W. 12 has only written that witness Ram Dayal Kunwar identified, the Appellants in the light of the torch and the witness, namely, Yasoda Devi also identified them in the torch light and stated that Udai Pasi was holding torch and Ramjatan and Banarsi had taken gun in their hands. The test identification chart does not disclose about the overt acts committed by the suspects at the time of the alleged occurrence. P.W. 12 has also admitted in his evidence that he did not enquire from the witnesses that whether they knew the suspects from before. He also admitted that it has not been mentioned in his chart as to whether the suspects belong to the same village or the adjacent village to the village of identifying witnesses. I, therefore, find aforesaid infirmities in conducting the test identification parade of the Appellants by P.W. 12.

It is admitted position that the Appellants Udai Pasi is a resident of the informant''s village, whereas, the remaining two Appellants are the resident of village Bamhaur which is adjacent to village Sarai, the village of the informant. P.W. 1 Ram Dayal Singh was admitted in his cross-examination that village Bamhaur and Sarai are adjacent villages. He also admitted that he had not identified any body of his village at the time of the alleged occurrence. As such, it can be safely held that he had not identified the Appellant Udai Pasi at the time of the alleged occurrence because Udai Pasi, admittedly, belongs to his village. If Udai Pasi would have taken part in the alleged occurrence, P.W. 1 must have disclosed his name of the informant and the name of Udai Pasi must have found mentioned in the F.I.R. P.W. 1 has admitted in clear words (paras 11 and 12) that when he got information about the arrest of the accused, he went to the police station and saw the Appellants there and according to him they had taken part in the alleged occurrence. The statement made by P.W. 1 clearly goes to show that the Appellants were shown to him at the police station before holding T.I.P. Such identification of the Appellants made by P.W. 1 at the test identification parade is of no value. It further appears from the evidence of P.W. 1 that he was known to other Appellants also from before, inasmuch, as he has stated that two months prior to the alleged occurrence Durga Pasi, who happened to be Sarhu of Ram Jatan Pasi had committed a dacoity in his house for which a case was instituted and due to that enmity the occurrence of the present case was committed. This witness has also admitted that he used to read in a school at Bamhaour which is situated at a distance of about 2-1/2 Kos from his village. As such, it was highly expected that this witness was known to Appellants Ram Jatan and Banarsi from before as both of them belonged to the adjacent village, namely, Bamhaour where this witness read in a school from his very childhood P.W. 1 has further admitted that some of the dacoits had covered their faces with Galmocha and the face of some of dacoits were uncovered but he could not say that how many dacoits had covered their faces. He has not specifically stated that whether faces of the Appellants were covered with Galmocha or not. In ordinary course of conduct, Appellant Udai Pasi, who belong to the same village to which this witness belong, must have taken precaution to cover his face and similarly other Appellants must also have taken such precaution. So, this circumstance also goes to show that the claim of identification made by P.W. 1 is not above doubts.

P.W. 1 has admitted that he had not made statement before the police that a lantern was burning in the Court yard and he was holding torch in his hand. So, his claim that he identified the Appellants in the light of the lantern or flash of torch light also does not look believable. P.W. 1 has not specifically stated about the overt acts committed by the Appellants nor he could say about the description of clothes worm by the Appellant Ram Jatan at the time at the occurrence. He further admitted that complexion of Ram Jatan Pasi is very fair (Gora) although it is the case of the prosecution that all the culprits were of dark completion.

The next identifying witness Yasoda Devi is none else but the mother of P.W. 1. This witness has supported the alleged occurrence and has deposed that a lantern was burning at the time of the alleged occurrence and she had a torch in her hand she identified the Appellants in the light of the lantern and torch. She has stted that Ram Jatan and Banarsi were having guns in their hands but has not stated that whether they committed any overt act or used their guns. She made a general and vague statement to the effect that 10-12 culprits entered into her Court yard and fired upon Laljee Singh and Baban Singh, who died and others also sustained splinters injury but nowhere she has stated that whether the Appellants Ram Jatan and Banarsi had fired from their guns nor she stated that out of 10-12 culprits others were also armed with gun and out of those unidentified persons some one had fired from their guns causing injury to Laljee Singh and Baban Singh. As such, it would appear that P.W. 2 has given a vague statement on the point of occurrence without specifying the role played by these Appellants and his associates. Learned Counsel for the Appellants submitted that P.W. 2 is actually not a witness to the occurrence an: has given a tutored statement and that is why sue gave vague and general statement without specifically attribut-ing the roles played by the Appellants and his associates. According to this witness, she was in the Court yard alongwith her husband, namely, Bahadur Singh (P.W. 3) and Dadan (P.W. 8) but P.W. 8 has not claimed to have identified the Appellants in the flash of torch light or in the light of the atern. If P.W. 2 would have identified the Appellants, P.W. 3 and 8 would also have easily identified them when source of light was common. The attention of this witness was drawn to her previous statement made before the police as to whether she stated that lantern was burning and there was torch in her hand to which she gave evasive reply that she does not recollect and she stated that she came in the Angan alongwith her husband. She also stated that all the family members were present in the Court yard at the time of the alleged occurrence but other family members except P.W. 1 did not identify any culprit. P.W. 2 has stated that she does not know Ram Jatan Pasi nor she had seem him before the alleged occurrence and denied to have made statement before the police that one of dacoits resembled like Ram Jatan Pasi but P.W. 4 A.Z. Kamal, who is the Investigating Officer of this case has stated that P.W. 2 had stated before him that one of culprits resembled like Ram Jatan Pasi of village Bamhaur, which is situated at a distance of 800-900 yards from her village. This circumstances indicates that P.W. 2 was known to Ram Jatan Pasi from before and she was also know to Udai Pasi, who belong to her village and she also admitted that her husband had instituted a case against Udai Pasi and his father in respect of a dacoity which took place in her house earlier. Learned Counsel for the Appellant strongly argued before me that P.W. 2 was well know to Udai Pasi and Ram Jatan Pasi from before which is established from the materials on record but they were not named in the F.I.R. which manifestly shows that they were not present at the time of the alleged occurrence and after lapse of more than a month P.W. 2 falsely identified the Appellants Ram Jatan Pasi and Udai Pasi and Banarsi Musahar was included because he also belonged to Harijan community. So, the evidence of P.W. 2 and the identification made by her at the T.I.P. does not deserve to be relied upon.

P.W. 3 Bahadur Singh is the husband of P.W. 2 and father of P.W. 1. This witness also claimed to have identified the Appellants and according to him they had fired alongwith Ram Bachan Pasi. The remaining, accused were armed with Bhala, Gandasa and lathi. So, he excludes the possibility of the hands of other accused by specifically stating that these Appellants and Ram Bachan had fired. The statement of this witness has not been corroborated by P.W. 1 and 2, inasmuch, as none of them made statement to the effect that who fired and according to P.W. 2, Udai Pasi was simply holding a torch in his hand which go to show that this witness had made false statement. The falsity of his evidence becomes transparent when he says that the culprits, who were known to him before had not covered their face and he had identified them but curiously the name of the Appellants were not disclosed by him to the informant. It would, thus, appear that this witness had not seen the occurrence, so, he did no disclose their names to the informant or to his wife and for the first time he has been set up to depose in the Court where he claims to have identified the Appellants. This witness also did not take part in the T.I.P. He has also admitted that the accused persons are ploughing the disputed government land since a year which shows that he has known to the Appellants from much before but still he did not disclose their names to the informant. As such, his claim of identification does not inspire confidence to believe and it appears that due to land dispute going on between him and the Appellants he falsely deposed that he had identified the Appellants at the time of the alleged occurrence.

P.W. 4 A.Z. Kamal is the I.O. of this case who recorded statement of the informant at 3.00 a.m. on 1.2.87 and started the investigation in course of which he prepared the inquest report (Exhibit-1 to 1/1) of the deceased and prepared dead body challan and sent the dead bodies for post mortem examination through chaukidar. He has proved the injury reports of the injured (Exhibit-2 to 2/3). He recorded the statement of the witnesses and inspected the place of occurrence which is the inner portion of the house of the informant: He has given the description of the place of occurrence. He also found five empty cartridges, two lives cartridges and one woolen shawl and a pair of plastic shoe near the place of occurrence which he seized. He also found a watch in the field of Gauri Shankar Tiwari which was also seized by him. He also searched the house of Appellant Ram Jatan Pasi and Banarsi Musahar but did not find any in-criminating articles from their house. He has stated that he handed over the charge of the case to S.I. R.K. Singh on 24.4.87 who submitted chargsheet in the case. In Cross-examination, the I.O. has admitted that he learnt from the witnesses that the land dispute was going on between the accused persons and the informant from before. Therefore, it would appear from the evidence of the 1.0. that the Appellants were known to the informant from before and possibility of the false implication of the Appellants on account of such enmity can not be ruled out.

P.W. 6 Ram Nihor Singh is an independent witness, who was taking meal at the house of the informant as his guest when the alleged occurrence took place. He has stated that one of the culprits snatched his watch and fired upon Laljee Singh on his back and also assaulted other inmates and thereafter they fled away. He has clearly stated that culprits had tied Galmocha on their faces. The statement made by this witness would go to show that the culprits had covered their faces and so there was no scope of identifying them by the witnesses.

P.W. 8 Dadan Singh is the informant of this case, who has stated about the occurrence which took place in his house, he has admitted that he had dispute with the accused persons in respect of a govt. and since he wanted to construct a school on that land, whereas, accused persons wanted to plough that land. He has admited that Ram Jatan Pasi is Mausa of Appellant Udai Pasi and he is aware of this fact since 15-20 years. He also admitted that Appellant Udai Pasi belong to his village. So, the evidence of this witness also goes to show that Appellant Ram Jatan and Udai Pasi were well known to him but still their names had not been mentioned in the F.I.R. P.W. 8 has not stated regarding the identification of the Appellants.

In view of the evidence, facts and circumstances of the case, as discussed above, I am of the view that the evidence of P.W. 1, 2 and 3 on the point of identification of the Appellants is not free from doubts and possibility of their false implication due to previous land dispute can not be ruled out. As such, I hold that the prosecution had not proved the charges against the Appellants beyond all reasonable doubts and the learned court below was not justified in convicting the Appellants in the manner stated above. I therefore, hold the Appellants not guilty to the Charges and acquit them of the same. Accordingly, the order of conviction and sentence recorded by the trial court are set aside.

In the result, these appeals are allowed. Appellant Udai Pasi (Cr. Appeal No. 309/2002), who is in custody is directed to be released forthwith if not reqired in any other case. Appellant Ram Jatan Pasi and Banarsi Musahar (Cr. Appeal No. 595/1996), who are on bail, are discharged from the liabilities of their bail bonds.

Bal Krishna Jha, J.

I agree.