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PETITIONER: MUNNI SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT21/04/1992

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1992 SCR  (2) 605        1993 SCC  Supl.  (1) 395  JT 1992 (2)   586        1992 SCALE  (1)831

ACT:      Penal   Code,1860-Section   396-Dacoity-    Conviction- Appreciation of evidence-Four sets of prosecution witnesses- Evidence of three sets not reliable-Reliablity of the fourth set-Conviction  basing on the evidence of P. Ws. 2  and  11- Legality of-ldentity of accused not established-Effect of.

HEADNOTE:      The  appellants, the victims of the dacoity  and  other prosecution  witnesses were residents of the village,  where the crime took place in the house of P.W.11.      The accused were closely related. P.W. 11’s cousin  and uncle were P.W. 3 and the deceased, respectively, and P.W. 2 was also a close relative of P.W. 11.      There was a simmering discontent between the family  of P.W.  11 and the family of the accused, Sukhari  Singh.  The accused  Sukhari Singh claimed that a pond was  bestowed  of him  by the erstwhile Zamindar before the coming into  force of  the Zamindari Abolition Act. As the tank was  under  the control  of  the  accused, he prevented the  cattle  of  the villagers from drinking water from it.      3/4  days prior to the occurrence of dacoity, the  Pan- chayat of the village suggested to the accused-Sukhari Singh to  surrender  the tank in the name of a Shiva  temple.  The accused suggested to the Panchayat the place constructed and occupied  by  the complainant party, (the deceased  and  his relatives) for tying their cattle on the unsettled lands  at the  bank of the pond also should be likewise given  to  the Shiva temple. The Panchayat was not agreeable to the counter suggestion of the accused.      It was the case of the prosecution that the dacoity was mastermined and made at the house of the complainant with  a sole purpose to avenge.      On  the night intervening 5th-6th April, 1970 the  P.W. 11, the first informant and his cousin, P.W.3 and his uncle, the deceased were sleeping                                                        606 on  the  cots  lay spread in the outer  courtyard  of  their house.  P.W. 11 was awaken by some noise as if some  persons were coming. He stood up and switched on his five-cell torch and  saw 20-25 dacoits armed with lathis, bhallas,  garasas, and  guns  coming towards his house. On  his  focussing  the

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torch they stopped. Then the dacoits also switched on  their torches.  P.W.11 recognised in the torch light  the  accused inclusive  of 5 appellants. Accused-sukhari  Singh  shouted, "kill-kill." Accused-Munni Singh fired with his gun at P. W. 11  but  the  gun fire did not his him. While  P.W.  11  was running,  one  of the dacoits hit him with a stick  with  an iron  ring.  There was some oozing of blood but it  was  not profuse.  He  ran  for about 30 steps to get  to  his  wheat field,  which was about 2 to 3 feet below the level  of  his courtyard.  From  there  he saw the remaining  part  of  the occurrence.      P.W. 11’s uncle was shot by the accused Munni Singh and he fell down Other dacoits who were near him started hitting him with spears.      One  of the dacoits held a ladder in his hand,  through which  he  climbed up to the roof of the inner  house,  from where  he  jumped into the female apartment and  opened  the outer  door. Then the dacoits entered the house and  started looting and plundering. Two dacoits scolded his cousin  P.W. 3  to keep lying down on his cot. In the  occurrence,  P.W.3 received no injury. The dacoits were active for about 15  to 20  minutes. On hearing the noise and commotion of the  vil- lagers, the dacoits decamped with the looted goods. Some  of the villagers followed them to some distance but the dacoits kept firing on them. With the result that some of them  were injured.      P.W. 11’s uncle and other injured persons were  removed to  be taken  to the hospital, but P.W.’s uncle died on  the way. Then P.W.11 proceeded to the Police Station, taking the dead body of his uncle with him, and lodged F.I.R.      P.W.12 went to the spot and saw the evidence of dacoity in  the  form  of  thing lying scattered  and  some  of  the articles  left  behind by the dacoits. He  had  the  injured persons examined medically. He arrested the accused  persons Finally  investigation was completed by another officer  and the accused persons were put up for trial.      The matter went to trial under the old Code of Criminal Procedure before the First Additional Sessions Judge against the  6  named persons and one other. There  were  commitment proceedings before a Magistrate                                                        607 in which evidence was recorded. At the commitment stage,  10 persons  were  put to face the enquiry, out of  which  three accused died. There remained 6 of the original accused named in the F.I.R. and one more, not so named to face trial.      The  trial  court  convicted all the  7  accused  under Section  396,  IPC and imposed on them a  sentence  of  life imprisonment.      On   appeal,  the  High Court acquitted  two  of  them, namely  Ram Narain Singh, the one unnamed in the F.I.R.  and one  Charittar Ahir, one of the so named and maintained  the convictions of other accused.      This  appeal by special leave was by the other  accused challenging the judgment of the High Court,      Allowing the appeal of the accused, this Court,      HELD  :  1.  01.  The  prosecution  had  four  sets  of witnesses  which could establish identity of  the   dacoity. Three sets became redundant and only on the basis of one set was  identity of the appellants established. The  first  set consisted of three injured persons who were not examined  at the  trial  by the prosecution. This set did  not  help  the prosecution at all. The second set consisted of the evidence of  P.W. 3, P.W.4 and P.W.9. The names of P.Ws.4 and 9  were not mentioned in the F.I.R. and their evidence was left  out of  consideration by the Courts below. Statement of  P.W.  3

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was  left aside by the High Court. In the third set was  the evidence of P.W.I P.W.5 and P.W.8, who did not identify  any of  the dacoits. None of these witnesses was  declared  hos- tile. Thus their evidence rather goes adverse to the  prose- cution.  The fourth set consisted of evidence of  P.W.2  and P.W.11 whose evidence has been relied upon by the High Court to  identify the 5 appellants and on the basis of  the  very same  evidence two co-accused, were acquitted because  P.W.2 named one and excluded the other and P.w.11 named the  other one and excluded the former giving rise to a doubt about the complicity of those two. [611-612D]      1.02.      Seeing the formidable force of  the  dacoits and  their number, the two P.Ws.2 and 11 would have been  so non-pulsed  that they would not have dared to  betray  their presence  by switching on and off their  torches  especially when they were unarmed and were no match to the might of the dacoits.  These two witnesses do not claim that  they  could identify the                                                        608 dacoits by means other than their torches. This part of  the story  of the prosecution obviously does not inspire  confi- dence.  It is also worthy of notice that P.W.11 was  injured on  the  head before he ran for safety. That was  enough  to shake  and  frighten  him. But before the  receipt  of  such injury he claims to have switched on his torch first and  to have  seen in the first glimpse the appellants  and  others. But  his  flash of the torch was  met  instantaneously  with numerous  torch flashes by the dacoits and its was like  day light as said by P.W.1. [613 F-H]          1.03.  It is difficult in the situation to  believe P.W.11  that  he  could  in  a  split  second  have  such  a perception  so  as to identify all the five  appellants  and some  others.  It is obvious and natural that behind  a  lit torch  darkness  prevails hiding the identity of  the  torch bearer  and persons situated close. So identity of  the  da- coits was not possible by P.W.11.                                               [613 H614 A]      1.04.      In the facts and circumstances of the  case, there is a grave doubt about the participation of the appel- lants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appel- lants  as dacoits. There is even no corroboration worth  the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prose- cution relating to the dispute about the pond may have given cause to P.W.11 to assume that the appellants were responsi- ble for the dacoity committed in his house and for P.W.2, to entertain that belief in a sweep. [614 C-E]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 572 of 1981.      From  the  Judgment and Order dated  26.8.1980  of  the Patna High Court in Criminal Appeal No. 15 of 1976.      Ranjit Kumar for the Appellants.      D. Goburdhan for the Respondent.      The Judgment of the Court was delivered by      PUNCHHI, J.    This appeal by special leave is  against the judgment                                                        609 and  order of the High Court at Patna dated August 26,  1980

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passed in Criminal Appeal No 15 of 1976.      The facts giving rise to this appeal are that a dacoity took  place at about midnight on the night intervening  5th- 6th  April, 1970 in the house of Dhaniram Singh, P.W.11,  in village  Awadhiya.  According to the prosecution  25  to  30 persons  armed  with guns, lathis, bhalas and  gharasa  etc. committed the dacoity and apart from looting away belongings of Dhaniram Singh, his uncle Khobari Singh was shot dead and as  many  as 8 persons including Dhaniram Singh  P.W.11  re- ceived injuries. The First Information Report was lodged  by Dhaniram  Singh,  P.W.11, at 6.30 a.m. on April 6,  1970  at police station, Bhabhua at a distance of about 7 miles  from the  place of the occurrence. In it he could name 7  persons specifically  as being members of the gang of  dacoits.  The remaining  dacoits  were  left  unnamed.  The  investigating agency when set into motion took steps as necessary. But  at this  stage, it would be sufficient to mention that  neither could  the investigation recover the looted property  valued by  the concerned P.Ws. at about Rs. 8,000 nor could it  get the  particulars of a large number of other participants  in the dacoity. When the matter went to triaL before the  First Additional  Sessions Judge, Arrah, against the 6 named  per- sons  and  one  other, the old Criminal  Procedure  of  1898 governed  the  trial and before-hand there  were  commitment proceedings  before   a  Magistrate in  which  evidence  was recorded.  At the commitment stage, 10 persons were  put  to face  the enquiry. One accused named Kanhaiya Singh  in  the meantime  died.  Two other accused Sukhari Singh  and  Gulab Gosain  also died. There remained 6 of the original  accused named  in the F.I.R. and one more, Ram Naresh Singh, not  so named  to  face trial and bear the conviction.  The  Learned Additional Sessions Judge convicted all the 7 accused  under Section  396 I.P.C. and imposed on them a sentence  of  life imprisonment. On appeal to the High Court two of them namely Ram Naresh Singh the one unnamed in the F.I.R. and Charittar Ahir,  one of the so named, were acquitted but  the  convic- tions of Munni Singh, Fekoo Singh, Behari Singh, Dadan Singh and Guput Singh, the appellants herein, were maintained.      The appellants are residents of village Awadhiya  where the  occurrence  took place. The victims of  the  crime  and other  prosecution  witnesses are also  from  Awadhiya.  The village  appears to be a small one consisting only of  26-27 houses comprising of various castes like Brahmins, Rajputs,                                                        610 Kahars, Ahirs and Kurmis. This is what Hira Singh, P.W.2 has deposed  at  the trial. The first informant  suggested  that there was a simmering discontent between  his family and the family  of Sukhari Singh accused. Munni Singh, appellant  is the  son  of Sukhari Singh, Fekoo Singh  and  Behari  Singh, appellants are the nephews of Sukhari Singh and Guput Singh, appellants,  is the brother of Sukhari Singh. Thus they  are closely related. There was a pond measuring about 3 acres in the village, which Sukhari Singh claimed, had been  bestowed on  him  by the erstwhile Zamindar before  the  coming  into force  of the Zamindari Abolition Act. He had taken  control of  the  Tank but some time before the occurrence  had  sown "singhara"  in  it  and had prevented people  to  let  their cattle  come there to drink water from it. The Panchayat  of the village when approached had taken note of it and had 3/4 days prior to the occurrence suggested to Sukhari Singh that he should rather surrender the Tank in the name of the Shiva Temple.  But, he had correspondingly suggested to  the  Pan- chayat  that the place constructed and occupied by the  com- plainant  party  Khobari Singh and others  for  tying  their cattle at the bank of the pond, which was part of  unsettled

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lands,  should also be likewise given to the  shiva  Temple. The  Panchayat was not agreeable to the  counter  suggestion because  the  possession and usage of that land  by  Khobari Singh was very old. With such grudge in mind, it is the case of  the prosecution, that the assault was  masterminded  and made  at the house of the complainant with the sole  purpose to avenge and to commit dacoity.      The details of the occurrence are provided by  Dhaniram Singh,  P.W.11, the first  informant. He stated that on  the day of the occurrence he was in his village having come on a month’s  leave from his posting as a Weapon Senior  Engineer in District Kanpur. On the night of the incident, three cots lay  spread  in the outer courtyard of their house.  He  was sleeping on one of them, and on the remaining two  individu- ally  were his cousin Baliram  Singh, P.W.3, and  his  uncle Khobari Singh (deceased). He was awaken by some noise as  if some  persons were coming. He stood up and switched  on  his five-cell  torch  and saw 20-25 dacoits armed  with  lathis, bhallas, Garasas, and guns coming towards his house. On  his focussing  the  torch they stopped. Then  the  dacoits  also switched  on their torches. Dhaniram Singh then claims  that he recognised in the torch light the accused inclusive of  5 appellants. Munni  Singh and Fekoo, appellants had guns  and the  remaining 5 had some other arms. Sukhari Singh  shouted kill-kill.  Munni  Singh  then fired with  his  gun  towards Dhaniram Singh but                                                        611 he rolled down and by the fall hurt himself on the thigh and the  gun  fire did not hit him. Then he got up  and  started running.  One  of the dacoits hit him with a stick  with  an iron  ring.  There was some oozing of blood but it  was  not profuse.  He  ran  for about 30 steps to get  to  his  wheat field,  which was about 2 to 3 feet below the level  of  his courtyard.  From there he claims to have seen the  remaining part  of the occurrence. He saw that when his uncle  Khobari Singh had been awakened Munni Singh  appellant fired at  him and  he fell down. Other dacoits who were near  him  started hitting him with spears. One of the dacoits held a ladder in his  hand,  through which he climbed up to the roof  of  the inner house, from where he jumped into the female  apartment and  opened  the outer door. Then the  dacoits  entered  the house and started looting and plundering. Two dacoits scold- ed his brother Baliram, P.W.3 to keep lying down on his cot. In  the occurrence, however, Baliram Singh. P.W.3,  received no  injury.  The  dacoits were active for  about  15  to  20 minutes. On hearing the noise and commotion, other   villag- ers then started collecting. The dacoits then decamped  with the  looted  goods. Some of the villagers followed  them  to some distance but the dacoits kept firing on them. With  the result  that  some of them were injured. Khobari  Singh  and other injured persons were removed to be taken to the hospi- tal  but  Khobari Singh died on the way  and  then  Dhaniram Singh  proceeded to the Police Station, Bhabua,  taking  the dead body of his uncle with him where the  Office-in-charge, P.W.12 Ram Nagad Tiwari, recorded his statement at 6.30 a.m. on  6.4.1970. Shri Tiwari went to the spot and saw the  evi- dence  of dacoity in the form of things lying scattered  and some of the articles left behind by the dacoits. He had  the injured persons examined medically. He arrested the  accused persons.  Finally  investigation was  completed  by  another officer  and  the accused persons were put up for  trial  as mentioned earlier.      Before  the  High Court, as also here, it  is  admitted that  there  was commission of dacoity in the house  of  the first  informant  on the day as alleged,  in  which  Khobari

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Singh  was  killed and others were injured. It is  also  not disputed  that the dacoity being a conjoint act all  persons participating  in the crime would be equally liable for  the killing of Khobari Singh. Thus the only exercise before  the High  Court,  as  also here, is to determine  who  were  the persons who took part in the commission of the dacoity.      It  is  note-worthy that prosecution had four  sets  of witnesses                                                        612 which  could establish identity of the dacoity.  Three  sets became redundant and only on the basis of one set was  iden- tity of the appellants established. The first set  consisted of  three injured persons Ramadar Singh, Dinanath Singh  and Dhirja  Singh  who  were not examined at the  trial  by  the prosecution.  This set did not help the prosecution at  all. The  second set consisted of the evidence of Baliram  Singh, P.W.3  Rambali  Singh, P.W.4 and Jhuri Singh P.  W.  9  .The names  of P.Ws 4 and 9 were not mentioned in the F.I.R.  and their  evidence was left out of consideration by  the  Trial Judge as well as the High Court. Even the statement of P.W.3 was  left aside by the High Court. So this set too  did  not further  the  prosecution  case. In the third  set  was  the evidence of P.W.1 Bishwanath Chaubey, P.W. 5 Jokhan Bind and P.W.  8 Chirkut Singh who  did not identify any of  the  da- coits.  None of these witnesses was declared  hostile.  Thus their  evidence rather goes adverse to the prosecution.  The fourth  set  consisted of evidence of P.W.2 Hira  Singh  and P.W.11 Dhaniram Singh whose evidence has been relied upon by the High Court to identify the 5 appellants and on the basis of  the  very  same evidence two co-accused,  that  is,  Ram Naresh Singh and Charittar Ahir were acquitted because  P.W. 2  named  one and excluded the other and  P.W.11  named  the other  one and excluded the former, giving rise to  a  doubt about  the complicity of those two. Thus we are left to  see whether   the conviction of the appellants can be  based  on the  evidence of these eye-witnesses P.Ws 2 and 11. We  have already given a condensed version of Dhaniram Singh, P.W.11. Now  according  to the Hira Singh P.W.2, his  house  is  4-5 houses  away from the house of the complainant and  when  he became awake on hearing the noise he went to see the  occur- rence  taking a torch which kept lighting. According to  him he hid himself behind a Bahaya tree and from where he  could keep  watching the activities of the dacoits whose faces  he saw.  As  he says he could identify 8 dacoits.   These  were Munni Singh, Fekoo Singh Dadan Singh, Guput Singh and Behari Singh  appellants as respectively armed. In  addition  there were  Sukhari Singh (since deceased), Ram Naresh  Singh  and Kanhiya  Singh who are no longer in the picture.  After  the departure  of  the dacoits he went close to  the  scene  and found  Khobari Singh to have been hit by gun shots and  that his condition at that time was serious. Then he went in  the company of P.W. 11 firstly towards the hospital and then  to the  police  Station. According to this  witness  though  he focussed  the  torch for 3 or 4 minutes before  he  went  in hiding,  the focus did not fall on the faces of the  dacoits and after having gone in hiding he                                                        613 had not lit his torch. Yet he claims that he had  identified the  dacoits in the torch light. He is also certain that  no dacoit  had muffled his face. The appellants,  according  to him,  had painted their faces but were not in a position  to conceal their identity. He admitted that 3 or 4 day prior to the incident, a Panchayat had been convened in which Sukhari Singh  was asked to surrender the Tank but he said he  would if  Khobari Singh demolishes and surrenders the house  built

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on  the  bank of the Tank first. And further that  when  the Panchayat  told  Sukhari Singh that the  house  having  been there  for  a long time, could not be  demolished  and  even Khobari  Singh was  not agreeable to do so, all  were  angry with the accused persons on account of the Tank.      So  far as Dhaniram Singh, P.W.11 is concerned, he  too admits  about  the convening of the Panchayat 3  or  4  days earlier  on which acount Sukhari Singh had nursed  an  angry feeling due to the happenings in the Panchayat. With  regard to  the actual ocurrence, P.W. 11 says that when  the  first shot  aimed at him had not hit him, and the second shot  had been  fired  at his uncle, he then ran 25-30 steps  and  hid himself in the field of the wheat crop and while running  he heard  the  firing of the third shot. At  that  juncture  he claimed   to have kept lighting his torch now and then  from the place of his hiding to see what was happening. The point which rises for consideration is whether P.Ws2 and 11  could individually,  with  the aid of  their  respective  torches, identify  the dacoits which were 25-30 in number  and  would the dacoits let them be identified by letting them switch on their  torches off and on as claimed ? Would these two  wit- nesses  not  have attracted attention of the dacoits  to  be taken  care  of in priority in their place of  hiding  ?  It seems to us that seeing the formidable force of the  dacoits and  their  number these two P.Ws. would have been  so  non- pulsed  that  they  would not have  dared  to  betray  their presence  by switching on and off their  torches  especially when they were unarmed and were no match to the might of the dacoits.  These two witnesses do not claim that  they  could identify the dacoits by means other than their torches. This part  of  the story of the prosecution  obviously  does  not inspire confidence. It is also worthy of notice that  P.W.11 was  injured on the head before he ran for safety. That  was enough to shake and frighten him. But before the receipt  of such  injury he claims to have switched on his  torch  first and  to  have seen in the first glimpse the  appellants  and others.  But his flash of the torch was met  instantaneously with  numerous torch flashes by the dacoits and it was  like day light as said by P.W.1 Bishwanath Chaubey. It is                                                        614 difficult in this situation to believe P.W. 11 that he could in  a split second have such a perception so as to  identify all  the five appellants and some others, It is obvious  and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close.  So identity of the dacoits was not possible by P.W.11  Moreover it  is  ununder-standable that when the dacoits  had  chosen dark  hours  for committing the dacoity, obviously  to  take advantage  of  the  darkness, and when they  were  25-30  in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification.  This  view we are entertaining  apart  from what  the High Court has opined that muffling of  faces  and concealment of identify by dacoits is not universally parac- tised.  Thus in the facts and circumstances of the case,  we entertain  a  grave  doubt about the  participation  of  the appellants in the crime because of the failure of the prose- cution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration  worth the  name  in the form of recovery of fire  arms  and  other weapons,  or of the looted articles from the appellants,  so as to lend some assurance to the particpation of the  appel- lants in the cirme. It may well be that the motive  asserted by  the prosecution relating to the dispute about  the  pond may  have  given cause to Dhaniram Singh, P.W.11  to  assume

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that the appellants were responsible for the dacoity commit- ted  in  his house and for Hira Singh P.W. 2,  to  entertain that belief in  a sweep.      For  the  foregoing reasons, we find  it  difficult  to sustain the conviction of the appellants. Accordingly,  they are acquited of the charge. The appeal is accepted. V.P.R.                                        Appeal allowed                                                        615