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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