http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: SHAMBHU DAYAL

       Vs.

RESPONDENT: SUBHASH CHANDRA AND OTHERS

DATE OF JUDGMENT:       19/02/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 177 OF 1988                       J U D G M E N T Nanavati, J.      Both these  appeals, one  by the State and the other by the original  informant Shambhu Dayal, are filed against the judgment and  order passed  by the  Allahabad High  Court in Criminal Appeal  No. 731  of 1987.  The High Court acquitted all the six respondents, who were convicted and sentenced to death by the court of sessions, Pratapgarh in Sessions Trial Case No. 91 of 1978 for the offence punishable under Section 396 IPC.  Respondent Nos.  1, 2  and 4  were also  convicted under Section  412 IPC   and  sentenced to suffer five years rigorous imprisonment.      Briefly stated the prosecution case was that during the night intervening  12/13.10.1977 the  six respondents  along with one  Dinesh committed dacoity in the house of Dal Chand and in  order to  commit dacoity caused injuries to Manohari Devi, Bimla   Devi,  Dayavanti, Pradeep, Sandeep, Anita, Dal Chand, Darshani Devi and Surji Devi, out of whom as many six injured,  namely,  Manohari  Devi,  Bimla  Devi,  Dayavanti, Pradeep, Sandeep and Anita lost their lives after some time. It is  the prosecution  case that  during the  investigation respondents Bhanu Pratap, Bhola, Ramesh, Virender and Govind were identified  by some of the prosecution witnesses. It is also the  prosecution case  that respondent  Subhash,  Bhanu Pratap  and  Ramesh  were  found  in  possession  of  stolen articles, which were discovered at their instance.      In order  to prove  its case  the prosecution  examined five eye  witnesses -  PW-2 to  PW-6 - and also led evidence regarding recovery  of  stolen  articles.  The  trial  court believed the  prosecution evidence,  except against  accused Dinesh, and convicted the other accused.      All the  convicted accused  challenged their conviction by filling  an appeal.  As they   were sentenced to death, a reference was also made to the High Court for confirming the death sentence.      The High  Court held  that  the  evidence  of  the  eye witnesses regarding  identification of  the accused  was not believable and  so also  the evidence  regarding recovery of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

stolen articles  at the  instance of  accused Subhash, Bhanu Pratap and  Ramesh. It,  therefore, allowed the appeal filed by the accused and acquitted all of them. Aggrieved by their acquittal State  has filed  Criminal Appeal  No. 177 of 1988 and the  original information Shambhu Dayal (PW-4) has filed Criminal Appeal No. 178 of 1988.      The fact  that dacoity  took place in  the house of Dal Chand (PW-3)  is not  in dispute.  It is also not in dispute that in  order to commit the dacoity  the dacoits had caused injuries to  the aforesaid  persons, out  of whom  six  lost their lives  because of  the injuries received by them. What is now  left  to  be  considered  is  whether  the  evidence regarding identification of the accused and recoveries is so reliable that  conviction of  the accused ought to have been upheld by  the High  Court. It  was contended by the learned counsel for  the State that accused Subhash was known to the witnesses as  he was of the same village and residing nearby and the  other accused except Dinesh were identified by more than two  witnesses in  the identification  parade  held  on 11.12.1977. PWs-2 to 6 have stated in their evidence that in view of  the frequent  thefts that  were taking place in the village 60  watt bulbs  were kept burning in the three rooms in which  they were  sleeping and  there was  also a burning lamp in  the court-yard  and therefore  they  were  able  to properly see the accused. Dal Chand (PW-3) and Darshani Devi (PW-5) have  further deposed that when accused Subhash tried to assault  Dal Chand  (PW-3) he was recognised by Dal Chand and he  had also  uttered the  words ‘Are  Subhash Tum’. The High Court  disbelieved their  evidence because PW-6 Krishan Chandra, who  was an  inmate of the house and had claimed to have seen  all the  dacoits in  light of  the  electric bulb which was  burning in  the court-yard, had not named Subhash as one  of the  dacoits in  the FIR.  Other intimates of the house had also not named him in their police statements. The High Court  has also  observed that  if Dal Chand (PW-3) had really  recognized   accused  Subhash  then  he  would  have disclosed that  fact to  his relatives  in the  hospital  on 14.10.1997 when  he had  regained  consciousness.  The  High Court also  found his  version that immediately after he was discharged from  the hospital on 14.10.1977 he did not go to his village  but  remained  at  his  aunt’s  place  was  not believable in  view of  the seriousness of the incident that had happened.  No further treatment was required to be taken at the hospital and therefore there was no reason for him to remain at  his aunt’s  place and  not to  proceed to his own village. The  High Court  also doubted  correctness  of  the evidence of the Investigating Officer who had stated that on 14.10.1977 he  had visited the hospital but the condition of Dal Chand  (PW-3) and  Darshani Devi (PW-5) was not good and therefore he  could not   record  their statements. The High Court has  observed that if Dal Chand’s (PW-3) condition was not  good  he  would  not  have  been  discharged  from  the hospital. Darshani  Devi (PW-5)  had also disclosed the name of accused Subhash for the first time on 18.10.1977. She has stated that  after receiving  a blow from one of the dacoits she had  become unconscious  and regained consciousness only on 18.10.1977.  The High  Court disbelieved that part of her evidence because  Dr. A.K.  Jain  (PW-9)  has  categorically stated in   his  evidence that  on 13.10.1977  when  he  had examined PW-5  her condition  was not  serious and  she  was conscious. The  High Court,  therefore, held that if accused Subhash was one of the dacoits and if there was enough light then the eye witnesses would not have failed to identify him and give  his name  as one  of the  dacoits at  the earliest point of  time, and  as his  name  was  not  disclosed  till

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

18.10.1977 that  indicates that they had really not seen him in their house at the time of the incident.      The evidence  of recovery  at the  instance of  accused Bhanu Pratap  and Ramesh was not believed as the independent witnesses in  whose presence  they were alleged to have made the statement and recovered the articles did not support the prosecution. As regards discovery of  pant, bushirt and ring (Exh. -  2,3, &  4) at  the instance of accused Subhash, the High Court  held that though PW-1 supported the prosecution, the evidence  in that behalf was so unnatural and improbable that it did not deserve acceptance. The High Court held that it  was   highly  improbable   that  accused  Subhash  while committing the  dacoits would  have taken  away bushirt  and pant and  buried them  along with  the golden  ring  in  the court-yard of  his house.  The  High  Court  also  found  it improbable because  he would  not have  taken  the  risk  of burying the  stolen articles  in his  house as it was only a few yards  away from  the house  of Dal  Chand  particularly when, according to the prosecution, he was recognised by Dal Chand.      The High  Court also  doubted the  evidence relating to identification of  the accused at the identification parades as Dr. Achchan, who was also an eye witness but not examined by the  prosecution and was examined as a court witness, has stated that  the Investigating Officer had shown the accused to him before the prosecution started. He has further stated that he  was  tole  and  pressurized  by  the  Investigating Officer to  identify the accused. He has also stated that at the time  when the  accused were shown to him PW-2, Parvati, was with  him. The  High Court  also took notice of the fact that for  seven days  the accused  were kept  in the  police station of  village Antoo  at a distance of only one furlong from  the  house  of  Dal  Chand  (PW-3).  The  High  Court, therefore, held  that there was every possibility of the eye witnesses seeing  the accused  when they  were in the police station or  the accused being shown to them. The High Court, therefore, set aside their conviction and acquitted them.       It  was contended by the learned counsel for the State that the  High Court  committed a  grave error in discarding the evidence of Dal Chand (PW-3) and Darshani Devi (PW-5) as regards the  identification of accused Subhash merely on the grounds that his name was not mentioned in the FIR  and that they disclosed  his name to the police on 18th that is after five days.  He also  submitted  that  the  evidence  of  the Investigating Officer  and other  Police Officers  in  whose custody the  accused had  remained, from  the time they were arrested till  the identification  parades were  held,  have clearly stated  that as  soon as  the accused  were taken in custody they were kept Baparda throughout and, therefore, it was to  at all  proper to  hold that there was a possibility that the accused were seen by the witnesses or were shown to them  before   they  were  put  for  identification  at  the identification parades.      From the  evidence it clearly appears that condition of Dal Chand  was quite  good on  14.10.1977 and, therefore, he was discharged  from  the  hospital.  The  High  Court  was, therefore, right  in holding  that the Investigating Officer was not  telling the  truth when he stated that he could not record the  statement of  Dal Chand  on  14.10.1977  as  his condition was  not good.  So also  the  explanation  of  the Investigating  Officer   regarding  late  recording  of  the statement of  Darshani  Devi  (PW-5)  has  ben  rightly  not accepted. Even  if late  recording of  their  statements  is considered only  as an  act of negligence on the part of the Investigating Officer,  the fact  remains that  they had not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

disclosed the  name of  Subhash till  18.10.1977 to any one. That  creates   a  serious   doubt  regrading  their  having identified Subhash  as  one  of  the  dacoits.  One  of  the prosecution witnesses  has stated  that it  was suspected by the village  people right  from morning of the next day that Subhash and  his associated  has committed  the dacoits.  It appears that  because of  suspicion Subhash was involved for the first  time on  18.10.1977. It is not believable that in all the  rooms in which intimated of the house were sleeping and also  in the courtyard 60 watts electric bulbs were kept burning. The  evidence regarding  discovery of bushirt, pant and ring  by Subhash  was rightly rejected by the High Court as it was not probable that while committing dacoits Subhash had taken  away clothes  also along with the golden ring and buried them  in the  courtyard of the house. In our opinion, the High  Court has given good reasons for not accepting the evidence of PWs.3 and 5 as regards identification of accused Subhash and  discovery of  pant, bushirt  and ring (Exh.2, 3 and 4)  of PW-3  and the findings recorded by it do not call for any interference.      Accused -2,  Bhanu Pratap  was identified by PWs- 2, 3, 4, and  6 at  the identification  parade held on 11.12.1977. Accused - 3 was identified by PWs - 3 and 6. Accused - 4 was identified by  PWs-2 and  3. Accused  - 6  was identified by PWs-3 and  6. A-7 was identified by PWs-2, 3, 4 and 6. PW -3 was sleeping  along with his wife Darshani Devi on the first floor of  the house  in a  separate room. PW-2, Parvati Devi was sleeping  along with   her grand-mother Manohari Devi in one of  the rooms on the ground floor on the western side of courtyard. According to her evidence she woke up and heard a loud shout  raised by  her grand-mother. She saw 4-5 persons in the room. On of the dacoits  assaulted on the heed of her grand-mother with an axe. Other dacoits were having boxes in their hands.  She was  given a  blow by an axe by one of the dacoits and, therefore, she had become unconscious. From her evidence it  becomes clear that she had seen the dacoits for a very short time yet she identified A-2, A-4 and A-7. It is difficult to  appreciate how these accused were seen by PW-3 Dal Chand  in his  room situated  on the  upper floor of the house and also by PW-2 Parvati Devi, who was sleeping in one of the  rooms on the ground floor. Both these witnesses have stated  that  immediately  after  they  woke  up  they  were assaulted and  had become  unconscious.  The  evidence  also discloses that as soon as shouts were raised the dacoits who had gone  up on the first floor came down and left the house from its  back side  along with those who were on the ground floor. Therefore,  their evidence  that they  had seen those dacoits and  so they were able to identify them at the first identification  parade  becomes  doubtful.  This  conclusion receives support  from the  evidence of  Dr. Achchan who was stated that  no one  was identified  at night  and after the accused were arrested they were shown to him and Parvati. In view  of   this  infirmity   in   the   evidence   regarding identification it  was not  safe to  place any-reliance upon the identification  of A-3  and A-6  by PW-6 also. Moreover, his presence  at the time of dacoits was also doubtful as he was not noticed by Dr. Achchan nor his name was mentioned in the complaint  given by  PW-4 Shambhu  Dayal.  The  evidence discloses that  on that  day Ram Lila was being performed in that village and it was going on at the time of dacoits.      As we  find that  the High Court has given good reasons for rejecting  the prosecution  evidence and  acquitting the accused, no  interference is called for by this Court. These appeals are, therefore, dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5