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CASE NO.:

Appeal (crl.) 659 of 1993

PETITIONER:

MAHMOOD AND ORS.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 16/02/2000

BENCH:

G.T. NANAVATI & Y.K. SABHARWAL

JUDGMENT:

JUDGMENT

2000 (1) SCR 898

The Judgment of the Court was delivered by

SABHARWAL, J, Nine accused were charged for offence under Section 396 IPC.

Three of them, namely, Jamil, Mokid Alam and Mah-mood were further charged

for offence under Section 412 IPC as well. Briefly the case of the

prosecution is :

A dacoity was committed in the House of informant Bhupendra Mohan Singh,

situated in Phulwari village, on 9th June, 1985 at about 7 : 15 p.m. 10 to

15 dacoits raided his house. This dacoits took away his licensed gun from

the house besides other articles. They ransacked the house of his brother

also which is situated in the same Angan' and also assaulted the wife of

his brother. The informant somehow slipped out of his house and concealed

himself in the house of his neighbour, Dinesh Chandra Singh and from there

he saw the entire occurrence. On learning about the dacoity, the villagers

rushed at the place of occurrence and some of them set fire to a heap of

straw. There was Chowkidar Morchand who also came armed with bow and arrow.

Some of the dacoits fired on the villagers. Morchand Lal was also shot at

and died at the spot. Another villager Sabo Lal was also injured by the

firing. In the light of the lantern as well as torchlights flashed by the

dacoits themselves, the informant identified Mohd. Dara, Mokid Alam,

Mahmood, Post Card, Salim, Mokimuddin and Alim among the dacoits. They also

took away Rs. 12,000 besides ornaments, transistors, clothes, etc. S.C.

Yadav Assistant Sub-Inspector, rushed to the place of occurrence and

recorded the statement of Bhupendra Mohan Singh at about 8 : 15 p.m. on the

basis of which case was registered against seven named accused and their

unidentified as-sociates.

The prosecution examined 12 witnesses. The informant Bhupendra Mohan Singh

is PW 4. PW 1 and PW 2 are his brothers. PW 3 is Dinesh Chandra Singh, the

neighbour from whose house PW 4 claims to have seen the entire occurrence.

All four of the claim that they had witnessed the occurrence. PW 5,

Manoranjan Singh, is also resident of the village and said to have reached

the place of occurrence soon after the dacoits had left. PW 10 is the

investigating officer. The other witnesses are formal.

The Court of Sessions convicted 5 accused, namely, Jamil, Mahmood, Mokid

Alam, Salim and Post Card @ Jagdish Mehto for offence under Section 396 IPC

and sentenced them for rigorous imprisonment for life. Accused Jamil,

Mahmood and Mokid Alam were also convicted for of-fence under Section 412

IPC as well and were further sentenced to undergo rigorous imprisonment for

seven years for the said offence. The remaining four accused, namely,

Mehruddin, Mohd. Dara, Mokimuddin and Alim were acquitted. The conviction

of the five accused has been upheld by the High Court, Three of them,

namely, Mahmood, Mokid Alam and Post Card @ Jagdish are appellants before

us.

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Mohd. Dara and Mokimuddin have been named in the statement of the informant

(PW 4) which was recorded within about an hour of the occurrence. PW 4

claims to have identified Mohd. Dara in the course of the dacoity and thus

named him in the statement. No other witness stated that Mohd. Dara

participated in the dacoity. Even PW 4 did not support his version in the

evidence recorded in court. Mohd. Dara was, therefore, acquitted for want

of legal evidence to connect him with the crime. The other acquitted

accused, Mokimuddin was, in fact, a resident of the same village. Except PW

4, no one else identified him. The sessions court held that the claim of

the identification of this accused by PW 4 was doubtful and this fact was

further aggravated since PW 1 to PW 3 did not state anything about the

participation of this accused in this dacoity.

Like Mokimuddin, Mehruddin was also the resident of the same village. In

fact, his house is said to be situated at a distance of. only about 100

yards from the place of occurrence. He was not named in the statement of

PWs 4. PW 1 and 2 who are also to be the victims of the dacoity, named him

in their statements given to the investigating officer which were recorded

a day after the date of occurrence. Before giving his statement, PW 4 had

talked to his brothers PW 1 and PW 2. In fact, they are all residing in one

house. The claim was that all the four had seen occurrence. The Court of

Sessions thus concluded that if PW 1 and PW 2 had identified this accused

at the time of dacoity, then they would have definitely reported about it

to their brother PW 4 and in that eventuality, his name should have been

mentioned in the statement of PW 4. The absence of the name of this accused

in the statement of PW 4, according to the learned Additional Sessions

Judge, raises strong suspicion of the accused being falsely impli-cated.

The defence also disclosed a motive for the false implication of Mehruddin

inasmuch as there was a dispute between the accused and the family of the

informant over a plot which was purchased on 15th April, 1985 in the name

of the wife of the informant, which is claimed to have been earlier

acquired by the accused who was not ready to give up his possession. The

testimony of PW 1 and PW 2 involving Mehruddin was held not to be reliable

and trustworthy.

The fourth acquitted accused Alim is also a resident of the same village.

He was also named in the statement of PW 4, Except PW 4, none else had

identified him. The claim of PW 4 regarding the identification of this

accused has been held to be doubtful by learned Additional Sessions Judge.

The solitary evidence of PW 4, the learned Additional Sessions Judge held,

does not inspire confidence to prove- the guilt against this accused and

thus he was also acquitted.

Learned counsel for the appellants contends that in view of the aforesaid

findings and conclusions of learned Additional Sessions Judge regarding the

credibility of PW 4 and his two brothers and PW 3, the appellants cannot be

convicted on the evidence of only PW 1 to PW 4 particularly in absence of

any other independent and corroborating evidence. It is a case of one

incident in which all the 9 accused were said to be involved. They were all

charged of dacoity and murder. The learned Additional Sessions Judge has

noticed that the possibility of the fake implication of the above mentioned

accused as noticed herein before, cannot be ruled out. The testimony of PW

1 to PW 4 in respect of the acquitted accused has been rightly held to be

not convincing and trustwor-thy. The findings and conclusions of the

sessions court in regard to the acquitted accused have not been dealt by

the High Court. The said findings have also not been questioned before us.

A faint attempt was, however, made on behalf of the State that even if the

testimony of PW 1, PW 2 and PW 4 is ignored, there is other independent

evidence in the form of statements of PW 3 and PW 5. As already noticed, PW

3 is the person from whose house PW 4, the informant, is said to have seen

the occurrence. PW 3 is also the witness of occurrence. He is neighbour of

PW 4. However, PW 3 could only name one accused, i.e., Jamil. The other

witness PW 5 only states what was told to him by PW 4. He did not witness

the occurrence. On the facts of the case in our view it is not safe to base

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the conviction of the appellants only on the testimony of PWs 1 to 5, There

is no other evidence to sustain their conviction.

Examined in the context of aforesaid facts, the doubt the source of light

also assumes importance. There is also serious doubt about the manner of

identification of the sarees said to have been recovered from the houses of

the accused.

In Prem Singh v. State of Punjab, [1976] 1 SCC 805, the conviction of the

appellant which was founded solely on the evidence of the two wit-nesses

whose testimony in regard to the other accused was held by the trial court

and the High Court to be unreliable and disbelieved in regard to the

participation of the said. This Court held that it is difficult to base

convic-tion solely on the evidence of such witnesses. In these

circumstances, it is not possible to uphold the conviction of the

appellants. Therefore, we give them benefit of doubt.

The appeal is accordingly allowed, the conviction and sentence of the

appellants is set aside and they are acquitted of the offence charged. They

shall be set at liberty forthwith if not required in any other case.