on the intervening night i.e.
on 21/22.09.1979, the complainant-Patia Singh (PW1) was sleeping in his
house. His brothers Saran Singh, Sukhbeer Singh and his children were
sleeping in their house. Both the houses were adjacent to each other. In
the midnight at about 1.00 o’clock, PW1-Patia Singh heard the noise of
gun firing and in the light of torch, he saw that in the house of his
brother Saran Singh, about 14-15 dacoits were looting the property and that
two of them on the roofs and two dacoits were standing on the gate holding
guns and they were continuously firing. All the inmates of the house
witnessed the incident in the torch light and electric light emanating from
tube well. On raising alarm, the villagers came out to help them and they
were carrying torches and they warned the dacoits from behind the walls.
When Saran Singh tried to control the dacoits, the dacoits opened fire and
he was shot dead. The miscreants looted the articles in about one and half
hours and fled away from the scene.
it is unbelievable that on a new moon night
when it was pitch dark, the witnesses who were frightened and who were
hiding themselves behind the walls in order to save themselves, could have
seen actual faces of the accused persons just by flash of torch lights on
their faces and in the light of lantern. Further, there were about 14-15
dacoits in number, all armed with deadly weapons and were continuously
making ingress and egress in the house of the deceased, it becomes
inconceivable as to how the witnesses standing at a distance in a feeble
light would have been able to identify the dacoits.
When the witnesses in a panicky state and standing at a distance of
three and half yards and five-six yards, it is doubtful whether the
witnesses would have gained enduring impression of the identity of the
accused.
In the commission of offence of dacoity, identification becomes
susceptible to errors and miscarriage of justice.
In order to bring home the guilt of the accused persons, it is the
duty of the prosecution to prove that the stolen property was in the
possession of the accused persons or that the accused had knowledge that
the property was a stolen property or the accused persons had converted the
stolen property. No such recovery was made to connect the appellants and
other non-appealing accused persons with the crime.
In the trial court, on behalf of some of the accused persons, a plea
was taken that some of the accused were known to the witnesses and that the
accused are resident of Jayee village and Buksar village and are doing
cultivation and that the accused are known to the witnesses. The
prosecution witnesses having known to the accused earlier, the witnesses
are residents of village Etmadpur and used to take the bus at village Jayee
and at village Khajoori bus stand. The courts below observed that the
identification of the appellants cannot be discarded merely on the ground
that the appellants and accused Kishnu reside in the village Buksar and
that the witnesses knew the accused long before. The accused could not
adduce evidence to substantiate the defence plea that the prosecution
witnesses had known the accused earlier. Non-adducing of evidence to
substantiate the defence plea by the accused seems to have substantially
weighed in the mind of the trial court to accept the prosecution case.
Courts below based the verdict of conviction solely on the oral
testimony of PW1 to PW3 and the identification of the appellants and other
non-appealing accused in the test identification parade. As discussed
earlier, in the absence of any other evidence like recovery of stolen
jewellery or other articles strengthening the prosecution case, conviction
cannot be based solely on the identification of the accused in the test
identification parade. Serious doubts arise as regards identification of
the accused regarding complicity of the appellants in the commission of
dacoity and their identification by the witnesses and the prosecution has
failed to prove the guilt of the accused beyond reasonable doubt and in our
view, the conviction of the appellants under Section 396 IPC cannot be
sustained and is liable to be set aside.
Conviction of the appellants under Section 396 IPC and the sentence
imposed on them is set aside and this appeal is allowed. The appellants
are ordered to be set at liberty forthwith unless they are required in any
other case.- 2015 S.C. MSKLAWREPORTS
