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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1663 OF 2012

IQBAL AND ANOTHER                 …APPELLANTS

VERSUS

STATE OF UTTAR PRADESH               …RESPONDENT

J  U  D  G  M  E  N  T

R. BANUMATHI, J.

This appeal by special leave arises out of the judgment

dated 14.05.2012,  passed by  the  High Court  of  Judicature  at

Allahabad dismissing Criminal Appeal No.2 of 1981, confirming

the conviction of the appellants under Section 396 IPC and also

the  sentence  of  ten  years  rigorous  imprisonment  imposed  on

each of them.

2. Case of the prosecution is that on the intervening night

i.e. on 21/22.09.1979, the complainant-Patia Singh (PW1) was

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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.

3. On the basis of the statement of the complainant–Patia

Singh (PW1), a case was registered under Section 396 IPC in FIR

No.258/1979  in  P.S.  Parikshitgarh,  Meerut  on  22.09.1979.

PW8-Nepal  Singh  (SI)  had  taken  up  the  investigation  and  he

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investigated  the  spot  and  collected  the  list  of  looted  articles

from  Jay  Singh  and  Sukhbeer  Singh.   Harpal  Singh-PW4(SI)

conducted the inquest on the body of the deceased Saran Singh.

Autopsy on the dead body was performed on 23.09.1979 by Dr.

S.P.  Goel  and  he  opined  that  the  death  was  due  to  gunshot

injuries.  PW8-Nepal  Singh  recorded  the  statement  of  the

witnesses and seized the torches, lanterns and prepared the site

map and  recovery  memo.   The  accused  were  arrested  on  the

night  of  8/9.10.1979  and  the  test  identification  parade  was

conducted in District Jail, Meerut on 15.11.1979 by PW6-Seeta

Ram (Special Executive Magistrate).   PW7-Bhanu Pratap (SI) had

taken  up further  investigation  and  received  the  report  of  test

identification parade.  On the basis of investigation conducted by

PW7 and his predecessor investigating officers, chargesheet was

filed  against  the  accused-appellants,  namely,  Iqbal  and

Khurshed and against non-appealing accused, namely, Kripa s/o

Buddhu and Kishnu s/o Ram Chander under Section 396 IPC.

4. To bring home the  guilt  of  the  appellants,  prosecution

examined as many as ten witnesses and exhibited documents

and  material  objects.  Upon  appreciation  of  evidence,  VIth

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Additional  Sessions  Judge,  Meerut  held  that  the  prosecution

proved  the  case  beyond  reasonable  doubt  and  vide  judgment

dated  23.12.1980,  convicted  the  accused-appellants  and  the

non-appealing  accused  under  Section  396  IPC  and  sentenced

them to undergo ten years rigorous imprisonment.  Aggrieved by

the verdict of  conviction,  the appellants namely, Iqbal,  Kishnu

and Khurshed, preferred Criminal Appeal No.2 of 1981 and Kripa

filed  Criminal  Appeal  No.5  of  1981  in  the  High  Court  of

Judicature at Allahabad.  After three decades of delay, the High

Court  vide  judgment  dated  14.05.2012,  dismissed  both  the

criminal appeals and thereby confirmed the conviction and also

the sentence of imprisonment imposed on them.  Aggrieved by

the dismissal of their appeal, the appellants herein, namely, Iqbal

and  Khurshed,  have  preferred  this  appeal  assailing  the

correctness of the verdict of conviction.

5. Learned counsel for the appellants contended that at the

time of incident, it was pitch dark and it would have been highly

improbable for the witnesses to identify the dacoits with flash of

torches.   It  was  further  submitted  that  PW1-Patia  Singh  had

given an exhaustive list of more than fifty valuable items which

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had been stolen, but except three kilograms of ghee in a clay pot,

nothing was recovered from the appellants and in the absence of

substantive evidence corroborating the identification, the courts

below ought not to have convicted the appellants.  It was also

submitted that the appellants have no criminal antecedents to

commit such heinous crime.

6. Per contra, learned counsel for the respondent– State of

Uttar Pradesh contended that the testimony of PW1-Patia Singh,

PW2-Jay Singh and PW3-Begraj who are the eye witnesses and

their presence on the spot is quite natural and they being the eye

witnesses to the incident had seen the dacoits for a considerable

time  and,  therefore,  identification  of  the  appellants  being  the

dacoits cannot be doubted.  It was further argued that based on

the  testimony  of  PW1 to  PW3 and  other  materials  on  record,

courts  below  by  concurrent  findings  convicted  the  appellants

under Section 396 IPC and such concurrent findings cannot be

interfered with.

7. We have carefully considered the rival submissions and

perused the impugned judgment and evidence on record.

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8. PW1-Patia Singh, who is the complainant, has narrated

the  incident  stating  that  about  1.00  o’clock  in  the  night  of

21/22.09.1979 about 14-15 dacoits came and looted the house

of his brother Saran Singh.  On hearing alarm, villagers, namely,

Ganga  Saran,  Daya  Chand  and  Devi  Singh  who  were  having

torches came and took shelter in PW1’s house and with the torch

light, he was able to see the dacoits.  PW1 further stated that

after  the  commission of  the  dacoity  when he entered into  his

brother’s house he saw his brother-Saran Singh being shot dead.

He has stated that there is a road of three and a half yards width

between  his  house  and  his  brothers’  houses  and  that  other

villagers witnessed the incident from the shelter of his house in

the sitting room.

9. PW2-Jay Singh,  son of  the deceased Saran Singh,  has

stated that on that fateful night he was sleeping in the verandah

of his house, which is adjacent to PW1’s house, with his father

Saran Singh, Haran Singh and other inmates of the house.  PW2

further deposed that  at  about 1.00 o’clock in the night  about

14-15 dacoits came with the torches and looted the house and

also started firing.  In order to save his life, he came out running

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from the house and took shelter in the sitting room of PW1-Patia

Singh  (PW1)  and PW2-Jay Singh further  stated that  from the

house of PW1, he saw the faces of dacoits in the flash light of

torches.  He further stated that after the incident, he went back

to his house and found that his father Saran Singh being shot

dead.  PW3-Begraj also deposed on the same lines that on the

critical night of the incident, he heard sound of fire arms and he

went to Albel’s house which is at a distance of five-six yards from

the house of the deceased.  He further stated that he saw the

faces of the dacoits in the torch light flashed by the villagers.  

10. In cases of dacoity, usually, the offence is committed by

unknown persons with the criminal background.  It is only in

very  few  cases,  the  accused-dacoits  are  known  to  the  victim.

PW1-Patia Singh and PW2-Jay Singh have stated that they had

witnessed the incident from a distance of three and half yards.

PW3-Begraj also stated that he had witnessed the incident from a

distance of  five-six yards in the feeble torch light.  Admittedly,

according to the witnesses, there was no electricity at the time of

incident in their houses.  They claimed that they could see the

accused persons with the help of their torch lights. In the courts

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below, onbehalf of the accused persons, it was argued that the

night of incident was an amavasya-new moon night.   A perusal

of  calendar  of  that  month  in  that  year,  it  is  seen  that  the

intervening night of 21/22.09.1979 was a new moon night i.e.

‘amavasya’.  

11. In our considered view, 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.

12. 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

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dacoity,  identification  becomes  susceptible  to  errors  and

miscarriage of justice.  In  Hari Nath and Anr. vs. State of U.P.,

(1988) 1 SCC 14, this Court held as under:-

“16….The conduct of an identification parade belongs to the realm, and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act.  But  the value of  the test identification, apart altogether from the other safeguards appropriate to  a  fair  test  of  identification,  depends  on  the promptitude in point of time with which the suspected persons  are  put  up  for  test  identification.  If  there  is unexplained and unreasonable  delay in  putting  up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test.

17. The  one  area  of  criminal  evidence  susceptible  of miscarriage  of  criminal  justice  is  the  error  in  the identification  of  the  criminal.  Indeed  Prof.  Borchard’s Convicting  the  Innocent records  several  criminal convictions  in  which  the  accused  was  subsequently proved innocent. The major source of the error is to be found in the identification of the accused by the victim of  the  crime.  Indeed the  learned author  refers  to  the source of mistaken identification thus:

“The  emotional  balance  of  the  victim  or eyewitness  is  so  disturbed  by  his extraordinary experience that his powers of perception  become  distorted  and  his identification  is  frequently  most untrustworthy.  Into the identification enter other  motives  not  necessarily  stimulated originally  by  the  accused  personally  — the desire to requite a crime, to exact vengeance upon  the  person  believed  guilty,  to  find  a scapegoat,  to  support,  consciously  or unconsciously,  an  identification  already made by another. Thus, doubts are resolved against the accused.”

18. Glanville Williams in  The Proof of Guilt — (Hamlyn Lectures) — refers to the errors of recognition breeding

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an  invincible  assurance  in  the  witnesses,  highly deceptive  for  those  who  are  not  forewarned  of  such possibilities,  and  excerpts  Gorphe’s  results  of  a continental investigation, thus:

“There  is  no difference from the subjective point  of  view,  between  true  and  false recognition, so far as their intrinsic qualities are  concerned,  and  there  are  no  objective signs to distinguish one from the other. .... The  witness’s  certainty  may  not  be immediate,  without  this  delay  being necessarily  a  sign  of  error.  Nevertheless, error  is  more  frequent  when  recognition comes some time after seeing.... The  act  of  recognition  is  very  open  to suggestion in all its forms.... Resemblance is a matter of relativity. For a white person, all negroes are like each other, and  conversely.  A  person  can  much  better distinguish  those  of  his  own  age  and condition  than  those  of  different  ages  and condition.  Uniform  is  a  cause  of  fallacious resemblance, above all for those who do not wear it. (emphasis supplied)”

19. The evidence of  identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identify…”   

13. As  noticed  earlier,  test  identification  parade  was

conducted  in  jail  on  15.11.1979  by  PW6-Special  Executive

Magistrate in which the witnesses PW1, PW2 and PW3 identified

the accused.  As far as test identification parade is concerned, it

is relevant to note that accused-Kripa has contended that he had

been falsely implicated in the case because of  the rivalry with

Rampal  Singh  and  his  maternal  uncle  Mangeram.

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Accused-Kripa  also  pleaded  that  the  witnesses  knew them as

they were living in nearby villages and because of rivalry, they

were being falsely implicated in the case.  So far as appellant

No.2–Khurshed and another co-accused-Kishnu are concerned,

they had stated that they were arrested by the police from their

houses  and  they  were  shown  to  the  witnesses  at  the  police

station  and  they  were  also  photographed  before  holding  test

identification parade.    

14. Even though the complainant-PW1 and other witnesses

have denied the defence plea, in the light of  the fact that  the

incident occurred in the pitch of darkness, the identification of

the appellants by the witnesses has to be viewed with caution

and  the  court  is  to  look  for  corroboration  strengthening  the

identification.

15. Evidence of  identification of  the miscreants  in the test

identification parade is  not  a  substantive  evidence.  Conviction

cannot  be  based  solely  on  the  identity  of  the  dacoits  by  the

witnesses in the test identification parade. The prosecution has

to  adduce  substantive  evidence  by  establishing  incriminating

evidence connecting the accused with the crime, like recovery of

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articles which are the subject matter of dacoity and the alleged

weapons used in the commission of the offence.

16. It is pertinent to note that in the present case no recovery

of articles which are the subject of dacoity was made from the

appellants  or  other  non-appealing  accused  persons.  In  his

complaint,  PW1 gave  a  list  enumerating  fifty  expensive  items,

such as gold jewellery, silver articles, sarees and clothes and also

cash.  As per the recovery memo, what was recovered was just

three  kilograms  of  ghee  in  a  clay  pot.   In  his  deposition,

PW8-Nepal  Singh  (investigating  officer)  has  stated  that  at  the

instance of Kripa, he had recovered a ‘chaptaghu’ and an ‘attire’.

However, in the recovery memo, only three kilogram of ghee is

mentioned which is said to have been recovered on the disclosure

statement of accused Kripa.  From the appellants as well as from

the non -appealing accused persons, not a single item of valuable

out of the whole list of stolen articles was recovered.  It is quite

unbelievable  that  within  a  short  span  of  time  i.e.  from

21.09.1979 (date of  incident)  to 9.10.1979 (date of  arrest),  the

accused would have converted or sold out all the valuable items.

Even if we accept that they had done so, the prosecution ought to

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have  adduced  evidence  as  to  how  and  in  what  manner  the

articles  which  were  the  subject  matter  of  dacoity  were  either

disposed of or converted.  Murder and robbery were part of the

same transaction.  Consequent  upon  the  disclosure  statement,

only three kilograms of ghee was recovered.  

17. 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.  

18. 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

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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.     

19. 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

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conviction of  the appellants under Section 396 IPC cannot  be

sustained and is liable to be set aside.

20. 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.

………………………J.                                       (T.S. THAKUR)

……………………...J.           (R. BANUMATHI)

New Delhi; May 6, 2015   

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