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CASE NO.:

Appeal (crl.) 23 of 2004

PETITIONER:

Umesh Kamat

RESPONDENT:

State of Bihar

DATE OF JUDGMENT: 13/01/2005

BENCH:

P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT:

JUDGMENT

P. VENKATARAMA REDDI, J.

The appellant along with seven others were charged by

the Additional Sessions Judge, Madhubani under Section 396

IPC for committing dacoity on the night of 28.5.1994 in the

course of which one of them fired at and killed one of the

inmates of the house, namely, Rajendra Thakur. Four were

acquitted by the trial Court and on appeal by the remaining

four accused, three were acquitted by the High Court. The

appellant alone was convicted under Section 396 IPC and

sentenced to life imprisonment. It appears that the appellant

has so far undergone imprisonment for about six years.

PW1\027a neighbor, PW3\027the minor daughter of the

deceased, PW4\027the brother of the deceased who was also

injured by the marauders and PW5\027the sister-in-law of the

deceased are the eye-witnesses. Though the information in

regard to the incident was supposed to have been conveyed

to the police station by PW1, the FIR was not recorded on

that basis. However, the police arrived at the scene at about

2 a.m. and then recorded the statement of PW5 i.e. the

sister-in-law of the deceased, which was treated as First

Information Report.

According to the statement of PW5 as incorporated in

the FIR, at about 11 p.m., she and other inmates of the

house were sleeping and on hearing the voice of his elder

brother\027PW4 who was sleeping beyond the main doorway,

Rajendra Thakur\027the deceased opened the main door and

the informant\027PW5 and PW3 also went behind him. She

saw four persons in full pants and half shirts standing at the

gate and another wearing a black full pant and full shirt with

checks. Soon after Rajendra Thakur opened the door, the

person wearing the black full pant fired at him as a result of

which Rajendra Thakur collapsed instantaneously.

Thereafter, she beseeched the miscreants not to harm and

to take away whatever articles they wanted. Still, they

inflicted injuries with dagger on the body of Rajendra Thakur

even after he fell down and one of them also attacked her

with a lathi. They also injured her husband Laxman Thakur\027

PW4 with lathi and rod as a result of which he became

unconscious. Four/Five dacoits entered the house and went

on a looting spree for about 15 minutes. On the alarm raised

by the villagers, dacoits who were 20 in number fled away

with looted articles. Rajendra Thakur succumbed to the

injuries then and there. She stated that the details of looted

articles will be furnished by the wife of Rajendra Thakur and

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other family members who had gone to the hospital.

According to her, the dacoits were young men wearing

dhothi, full pant, half shirt etc. and they had fire arms,

dagger, lathi and torches with them and were speaking Hindi

and Mithili languages. She also stated that her husband

would disclose the identity of the dacoits on coming to

senses and her other family members will identify the looted

articles if recovered. Informant also stated that three dacoits

have covered their faces with 'galmocha'. The statement was

recorded in the presence of her son-in-law and sambandhi.

PW10 is the main investigating officer. He stated that

after coming to know of the dacoity, he went to the place of

occurrence with armed police at about 12.15 a.m. He

noticed the dead body of Rajendra Thakur and he could not

record the statement of Laxman Thakur as he was senseless

and therefore he recorded the statement of the wife of

Laxman Thakur\027PW5. He found cash box and wooden

almirah in broken condition and the articles therein lying

helter-skelter. He also found the Godrej almirah in broken

condition and found the articles therein on the ground in a

disturbed condition. He held the inquest over the dead body

and took steps to have the postmortem conducted. The

injured Laxman Thakur\027PW4 was sent to hospital. On the

basis of information collected during investigation, he

arrested four accused, the appellant being one of them.

Then he took steps to have the test identification parade

done by the judicial Magistrate. He submitted the charge-

sheet against the four persons while showing others as

absconders. The further investigation was handed over to

his successor after his retirement.

The factum of homicidal death of the deceased as a

result of firing is not in dispute. It is not the case of the

prosecution that the appellant herein was a known person.

The whole case of the prosecution rests on the credibility of

identification, said to have been made by the four witnesses

in the course of test identification parade held by the

Magistrate. In the case of the appellant and three others,

the identification parade was held after seven weeks i.e. on

19.7.1994 and in the case of others it was held much later

i.e. after 6 to 10 months. In view of the long time gap, the

High Court was not inclined to believe the version as regards

the identification of three appellants before it and therefore

they were acquitted. As far as the appellant is concerned,

the High Court agreeing with the trial Court relied on the

evidence of the prosecution witnesses 1, 3 & 4 and held that

the identification of appellant could not be doubted.

One important fact to be noticed at this juncture is that

PWs 1 to 4 claimed in the course of their evidence that they

identified the three accused (who were acquitted by the trial

Court itself) at the time of occurrence because they

belonged to the same village but the Investigating Officer

maintained that none of the names of the accused were

disclosed by the witnesses whom he examined. A comment

was made that the I.O. did not record the statements

properly with a view to help the accused but the trial Court

did not accept this plea. The learned trial Judge commented

that the evidence of PWs 1 to 4 that they could identify the

three accused (other than the appellant) was "either an

improvement or an embellishment and perhaps the

aforesaid persons have been made accused due to previous

enmity and the groups in the village". The trial Court also

referred to the statement of the I.O.\027PW10 that initially he

was not willing to put the three accused who were the

residents of the village in the test identification parade but

on the direction of the Addl. S.P., the three accused persons

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were also presented for identification.

Another fact to be noticed at this stage is that there

are discrepancies in the evidence of prosecution witnesses

regarding the number of persons holding the gun. The

Judicial Magistrate examined as PW6 stated that PW1

pointed out to him that the appellant Umesh Kamat was one

of those having gun in his hand. The Magistrate also stated

that in the second identification parade, PW1 identified the

suspect person Dinesh Mohato as the person who had fired

the shot on the deceased. However, PW4 attributed this role

to the suspect Rajeshwar Singh who was identified in the

third identification parade. As already noticed, both of them

were acquitted. However, we need not dilate further on this

aspect as it need not be proved by the prosecution that the

appellant himself caused death. Section 396 enjoins that if

any one of the five or more persons 'conjointly committing

dacoity' commits murder in the course of the same

transaction, every one of the persons who participated in the

dacoity will be guilty of the offence of dacoity with murder.

Each one of the dacoits is liable to be punished under

Section 396 irrespective of the fact whether he is the actual

assailant or whether he had shared the common intention to

kill anyone.

Then there is a controversy on the question whether

the number of persons who committed the offence was five

or more or less than that. It is pointed out that all the

prosecution witnesses spoke about the presence and

participation of only four and there was only a vague

statement by some of the witnesses that a number of others

(nearly 20) were also outside the house. There is also a

controversy on the question whether any property was

plundered at all, because no details of the properties lost

were furnished and no recoveries were made. In the view

we are taking as regards the identification, there is no need

to delve further into these aspects. However, one striking

feature of the case which we would like to mention is that

investigation was most perfunctory and inadequacies on the

part of the prosecution are writ large in the case.

We now turn our attention to the most crucial aspect of

the case in regard to the identification of the appellant. The

High Court relied on the evidence of PWs 1, 3 and 4. Neither

PW5\027the informant nor PW2 (who identified three other

accused) identify the appellant. Hence, their evidence need

not detain us. How far the two Courts were justified in

acting on their testimony on the point of identification is the

question. The appellant, as already noticed, is not a person

known to the prosecution witnesses. As far as PW 3 is

concerned, she did not identify the appellant in the Court as

he was not present. Though the trial Court and the High

Court proceeded on the basis that the four accused including

the appellant were identified in the Court by PW3, in fact

there was no such identification, as is clear from her

deposition at Para 6. As pointed out in Malkhansingh and

others Vs. State of Madhya Pradesh [(2003) 5 SCC

746] the identification parades belong to the stage of

investigation and they do not constitute substantive

evidence. The substantive evidence is the evidence of

identification in Court because the facts which establish the

identity of the accused persons are relevant under Section 9

of the Evidence Act. This Court further observed that failure

to hold a test identification parade would not make

inadmissible the evidence of identification in Court. Thus, in

the absence of identification in the Court at the time of

tendering evidence the results of test identification parade

will be of little value. With reference to the evidence of PW3,

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the High Court committed another factual error in observing

that PW3 gave a description of the general appearance of

the appellant. Therefore the testimony of PW3 does not

advance the prosecution case.

We may now turn our attention to the evidence of the

other two witnesses on which the High Court relied. It is

seen from the evidence of PW5 that the "dacoits had

covered their face with clothes at the time of incident". PW1

also stated that the dacoits were covering their faces except

eyes and nose, with black cloth. PW 4 did not say specifically

whether or not the marauders were having masks on their

face. Assuming that eyes and nose could be seen to some

extent despite the mask, the question is whether any of the

crucial witnesses could have identified the unknown masked

dacoit. PW1\027the neighbour who was living in the adjacent

house, came forward with the version that after hearing the

noise, he put on his torch and in that light, he saw the

dacoits killing Rajendra Thakur at the courtyard of his house.

PW1 further stated that thereafter, he went towards the

doorway of the house of Rajendra Thakur and when one of

the dacoits flashed the torch on him, he noticed Rajendra

Thakur lying in an injured condition while one person was

attacking him with knife. The witness then claimed in the

cross-examination that he had flashed the torch 5 to 7 times

at the dacoits from a distance of 20-30 feet. Therefore, his

version is that he was able to identify the accused by

flashing the torch light now and then. He claimed to have

remained at the place of occurrence for 2-3 minutes. It

seems to us that the evidence of PW1 is not credible.

Leaving apart the probabilities and the natural course of

conduct, the version of PW1 is belied by his own version in

the cross-examination. While at one point of time he said

that he did not get scared, at paragraph 24 of the

deposition, he clearly stated as follows:

"When I went to the place of occurrence for the

first time, then I saw the assault. Accused had

also run to assault me. I ran towards my house in

order to save my life. I was having an Eveready

torch in my hand".

In the next para, he stated that after the dacoits left the

place of occurrence, he and his family members went to the

spot and stayed for about 10-15 minutes. It is unbelievable

that he would go and remain at the place of occurrence

even for a short-while when the attack and dacoity by

armed persons was going on and that he dared to flash the

torch light on them more than once in order to get an idea

of the miscreants. On his own showing, he was concerned

about his own safety. Moreover, this witness stated that

there was no electricity or lantern light at the house of the

deceased. On the face of it, we need not say anything more

to discredit this witness on the aspect of identification of the

appellant which was done after a lapse of about seven

weeks. As the dacoits covered their faces, we do not think

that it was reasonably possible for the witness (PW1) to

identify each of the criminals, some of whom including the

appellant were unknown to him with the help of the light

flashed by him intermittently, even if that version is

accepted. The High Court described PW1 as an 'independent'

and natural witness and believed him without testing the

veracity of evidence in the light of various circumstances.

Amongst the eye-witnesses, it is the evidence of PW4

which assumes more importance because he was the injured

and he would have had the opportunity to notice the

offenders from close range and there was a reasonable

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possibility of PW4 having in his mind the imprint of the

image of criminals who attacked him and his brother. PW4

identified the accused in the course of evidence. However,

even his evidence does not inspire confidence in ultimate

analysis. Contrary to what PW1 stated, he took the stand

that there was a lantern at the place (baithak) where he

was sleeping. Of course, that lantern which was described

as 'old' was not even seized by the police. Assuming there

was a lantern, in all probability, it would have been quite

dim as it is common knowledge that while going to sleep,

normally the lamp is kept at the minimum level in rural

areas. PW4 further stated in the chief-examination that he

could identify the four dacoits in the light emanating from

the torch (flashed by the dacoits) and the moon-light. The

High Court observed that it was not a moon-light day as per

the admission of some of the witnesses. According to PW4,

the appellant herein is not the person who aimed the gun at

his brother. The question is whether at that juncture when

he was being subjected to blows soon after he woke up and

his brother was being simultaneously attacked by the armed

miscreants, he would have really observed each one of the

four persons with covered faces so keenly and minutely as

to identify them by the uncovered portion of the nose and

eyes. The answer could only be in the negative. It is

pertinent to note that PW4 did not spell out the distinctive

features of the appellant (who was admittedly a stranger to

him) on the basis of which he could identify him despite the

mask.

Thus, there is any amount of doubt on the point

whether PW4, in the situation in which he was placed, could

closely observe the identifiable features of the appellant in

mask that too in the glow of dim lantern and in the light

emitted by the torches flashed at him or other inmates of

the house. This doubt has to be viewed in the context of two

things, firstly\027there was no recovery of property, nor any

other corroborating evidence linking the appellant to the

crime. The second aspect is that the trial Court was not

inclined to believe the evidence of the identification of three

other accused at the same identification parade held on

19.7.1994 and commented that they were falsely

implicated. If so, the evidence of PW4 should have been

scrutinized with greater caution instead of proceeding on a

premise that he was a truthful witness. One more aspect

which deserves notice is that PW4 did not have the occasion

to observe the dacoits' operations inside the house. He

would have noticed them only initially for a short-while

before they entered the house. It is his case that he became

unconscious a little later as a result of injury inflicted on

him. These are all the various doubts which loom large over

the prosecution story of identification of the appellant.

Unfortunately, the High Court did not analyze the evidence

of prosecution witnesses so as to test the credibility of their

evidence in the light of admitted or undeniable facts

apparent from the record.

The only reason given by the High Court in believing

the evidence of PW4 is that the incident must have left a

deep impression in his mind, especially in view of the

injuries which he and his wife received at the hands of the

dacoits and such impression would not be easily fade out

within a few weeks or months. This observation of the High

Court was based on the hypothesis that PW4 was in a

position to clearly notice the physical features and

appearance of the appellant. There was no warrant for such

ready assumption. The trial Court as well as the High Court

should not have taken the version of the PW4 on its face

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value without testing its credibility. The relevant aspects

adverted to above which give room for reasonable doubt,

were not at all noticed by the trial Court or the High Court.

Under these circumstances, the interference with the finding

recorded by the both the Courts, is called for.

We may before parting with the case refer to the

decision Tahir Mohammad Vs State of M.P. [1993

Supp.(2) SCC 697). That was a case of dacoity by armed

men with covered faces. The passengers of a bus were

robbed at night time. The prosecution witnesses identified

the accused in the Test Identification Parade and in the court

too. There were also recoveries of the looted articles from

two of the accused. This court set aside the conviction

under Section 395 to 397 while holding one of the accused

guilty under Section 412 IPC. The main reason which

weighed with this court in excluding the evidence of

identification was that the accused was placed in the Test

Identification Parade with fetters on their legs. This court

gave additional reason for not believing the witnesses on the

point of identification in the following words:

"In the instant case the witnesses who were the

inmates of the bus both in their earlier

statements and in their oral evidence before the

court have not given any description of the

dacoits whom they have alleged to have identified

in the dacoity, nor have they given any

identification marks such as the stature,

complexion, height of the accused. Further under

the stress and strain of such a serious incident as

the present one, it would have not been possible

for the witnesses to identify the culprits especially

when the culprits were under masks."

The features pointed out by this court in the passage

extracted above are also present in the instant case.

The appeal is therefore allowed and the conviction and

sentence against the appellant is set aside. He shall be set

at liberty forthwith unless required to be detained in any

other case.