IQBAL Vs STATE OF U.P.
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-001663-001663 / 2012
Diary number: 24756 / 2012
Advocates: R. C. KOHLI Vs
ABHISTH KUMAR
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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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