Page 1 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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Page 2 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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Page 3 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, VI

th

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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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