State of U. P. vs Banarsi Mallah

Giridhar Malviya and B.K. Sharma, JJ.—These two appeals have been preferred against the judgment and order dated 29.8.1980 passed by Sri D. K. Agrawal, the then I Vth Additional Sessions Judge, Deoria in State v. Banarshi Mallah, S. T. No. 186 of 1977 and State v. Vikram Gond and 3 others, S.T. No. 277 of 1978, whereby he acquitted Banarsi Mallah and Harihar Singh accused of the offence u/s 396, I.P.C. and convicted Ram Narain accused of the same offence and sentenced him to imprisonment for life. The Government Appeal was preferred regarding the acquittal of Banarsi Mallah and Crl. Appeal was preferred by Ram Narain accused against his conviction. So far as Ram Narain is concerned, he has died, consequently, his appeal has abated and order of abatement has been passed by this Court on 24.3.1998. So there remains only the Government Appeal preferred against the acquittal of Banarsi Mallah by the learned Sessions Judge.

We have heard learned A.G.A. and the learned Counsel for the accused-Respondent Banarshi Mallah. It is not in controversy that a dacoity took place in the village Chhattarpur, P. S. Salempur, District Deoria in the intervening night of 16/17.2.1975 in which as many as 13 or 14 dacoits participated armed with gun, pistol, pharsa, lathi and bombs in the village at the house of Shiv Narain Singh informant in which Parsu Ram Singh was done to death and property was looted. Artificial sources of light were said to be present at the time of the occurrence. F.I.R. was lodged against Vikram Gond, Harihar Singh and Radha Kishun Singh and 10 to 11 unknown dacoits. During investigation Banarsi accused-Respondent and Ram Narain were arrested and put up for test identification parade. Banarsi Mallah was correctly identified by Anirudh Singh, Ram Nagina Singh and Ram Kishun Singh witnesses in the identification parade. Out of them, Anirudh Singh and Ram Nagina Singh were examined at the trial as P.W. 4 and P.W. 3 respectively. They gave positive evidence against him at the trial and identified him correctly as one of the dacoits. The learned Sessions Judge discorded the identification evidence against him on the ground that there existed an admission on record that the said accused Banarsi belonged to village Bhatpar Rani and adjoining village situated at a distance of about one and half miles from the village where the dacoity took place. He also observed in his judgment that the map of the District Deoria was shown to him according to which the distance was hardly one and half miles. He further observed that the defence of the accused Banarsi was also to the effect that he was known to the witnesses from before and that his identification was in real sense a fiction and, therefore, no reliance can be placed on the identification evidence adduced in the Court on behalf of the prosecution as against this accused Banarsi. Consequently, he acquitted this accused.

The learned A.G.A. has challenged the acquittal of this accused-Appellant by the learned Sessions Judge. He pointed out to the statement of this accused u/s 313, Cr. P.C. wherein this accused-Respondent had not set up any enmity with any of the prosecution witnesses and claimed implication only under police pressure. In that statement, the accused had claimed that the informant''s house was only one mile away from his house. He also claimed that he was not brought to the police station Baparda and he was not taken to the jail Baparda and further said that the informant knew him and further that he was shown to the witnesses at the police station. A scrutiny of the prosecution evidence indicates that this accused Banarsi was arrested from his house on 6.8.1975 at 3 a.m. by S.I. Ram Narain Yadav of P. S. Kham Paar on a requisition sent by S.O. Salempur and lodged at the police station at 5.10 a.m. on the same day and then he was dispatched from the lock up of the police station for the District Jail, Deoria. The evidence further shows that he was put up for identification on 6.10.1975. There was thus a gap of as many as 60 days between the date of arrest and the date of identification proceedings. The learned A.G.A. has pointed out in the evidence of Rama Shanker Singh, I.O. P.W.8 that it was on 15.8.1975 that he (S.O. P.S. Salempur) received information from P.S. Kham Paar about the arrest of this accused Banarsi and of his being sent Baparda to jail and that on its basis, he gave report for identification proceedings and identification proceedings were held. It is difficult to believe that the information of this arrest would not promptly reach to S.O. Salempur on whose requisition, the arrest was made. Furthermore, there was no explanation for the time gap between the alleged date of the receipt of information about the arrest as claimed by him and the date of the identification proceedings. There is the added circumstance that the identification proceedings had taken place about 8 months after the date of occurrence.

The learned A.G.A. has relied on para 9 of the authority Brij Mohan and others Vs. State of Rajasthan, , where it has been held It was pointed out, on behalf of the Appellants, that the aforesaid test identification was held virtually after three months of the occurrence and as such it was not safe to trust such identification. It is true that with lapse of time, the memory of the witnesses, who have seen the culprits at the time of the commission of the dacoity gets dimmer and dimmer, and the earliest the test identification is held, it inspires more faith about the fairness of the test identification. But no time-limit can be fixed for holding a test identification, after which the Investigating Officer will be debarred from putting the suspects for test identification. While accepting the position that such test identifications should be held at the earliest, at the same time it cannot be ignored that it is not always within the reach of the Investigating Officer or up to him to hold such test identification. Any test identification can be held only if some persons are arrested, who are suspected to have participated in the dacoity in question. The position will be different where in spite of such suspects being in custody, the test identification is postponed, there being no reasonable cause for the same. Once the Investigating Officer suspects that persons arrested are accused in connection with a particular dacoity, they should be put up for test identification at the earliest. It is imperative duty on the part of the Investigating Officer to put up such suspects at test identification without any delay. That gives sanctity to the test identification.Read as a whole, this paragraph does not help the learned A.G.A. in securing the conviction of this accused. While in this authority, it has been said and rightly so that no time-limit can be fixed from the date of the occurrence for holding the test identification as it is not always within the reach of the Investigating Officer because the test can be held only if some persons are arrested who are suspected to have participated in the dacoity. However, this authority itself shows that the position will be different where inspite of such suspect being in custody, the test identification is postponed, there being no reasonable cause for the same. As noted earlier in the present case, there is a long gap of time between the date of arrest of the accused-Respondent and the date of the test identification for which no explanation has been advanced at the trial or even today. From this unreasonably long time-gap also support comes to the defence plea that this accused-Respondent was shown to the witnesses prior to the test identification parade. This is apart from the plea of ''known'' because if he was known to the informant and the witnesses from before (as is to be presumed from the mere one and half miles distance between the place of occurrence and the village of this accused-Respondent) then if he had actually participated in the dacoity with murder that took place in the village of occurrence, his name must have found place in the F.I.R. of this case lodged by the informant after the occurrence. The learned A.G.A. has argued that the witnesses might be knowing this accused by face and not by name. There is no foundation shown in the evidence about the submission of the learned A.G.A. So, in view of the above circumstances, it is difficult to say that the learned Sessions Judge has misdirected himself in awarding an acquittal to this accused Banarsi Mallah at the trial or that there was any infirmity much less perversity in his judgment so far as this accused-Respondent was concerned. Thus, no ground for interference with the acquittal awarded by the learned Sessions Judge to this accused-Respondent is made out.

For the reasons aforesaid, this Government Appeal is dismissed. The accused-Respondent Banarsi Mallah is on bail to this Court. He need not surrender to it. His bail bonds are cancelled and sureties discharged.

Let a copy of this judgment be certified to the learned Sessions Judge, concerned for information and compliance. Compliance report be sent to this Court within a month from today.