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CASE NO.: Appeal (crl.)  711-712 of 1996

PETITIONER: State of Rajasthan

RESPONDENT: Netrapal & Ors

DATE OF JUDGMENT: 27/02/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

Hon. C.K. Thakker, J.

       These appeals have been preferred by the State of  Rajasthan against the judgment and order dated  November 3, 1989 passed by the High Court of  Judicature for Rajasthan, Bench at Jaipur in S.B.  Criminal Appeal Nos. 302 of 1989 and 322 of 1989  acquitting all the accused of the charges levelled against  them.          Brief facts of the case are that during the night  intervening 25th and 26th November, 1987, a report was  lodged by one Ramji Lal (PW 1) at Police Station, Sever  that a dacoity had been committed at Village Samarpur.  It was alleged that at about 12.00 night, while he was  sleeping in his room with his father Dwarika Prasad and  younger brother Satish, 10-15 dacoits armed with lathis  and guns came to his room and hit them with lathis and  looted movable properties, ornaments of gold and silver  from the houses of Ramji Lal, Chandan, Gopal and  Ramsukh.  In the incident, they shot at Dwarka Prasad  on chest who died.  Ramji Lal, PW 1 also stated before  the Police that he could recognize the accused in the  electric light.  On the report a case was registered and  the police visited the place of incident.  Police recovered  3 empties of .12 bore, 3 empties of .315 bore and a glass  piece of .315 bore from the spot. On November 27, 1987,  Ramsukh, Ramji Lal and Chandan submitted a list of  articles looted from their houses.  The accused persons  were arrested by the Police.  The Additional Munsif and  Judicial Magistrate, Bharatput put them to identification  by the witnesses.  The witnesses identified them. The  seized and recovered articles were also put to  identification and they were also identified by the  persons to whom they belonged.         The Trial Court framed charges against the accused  persons for offences punishable under Sections 395 read  with 397 and 396 of the Indian Penal Code (’IPC’ for  short) and also under Section 3 read with Section 25 of  the Arms Act.  The accused persons denied the charges  framed against them. They also denied recovery of the  articles and contended that they were falsely implicated  in the case.  The prosecution examined 23 witnesses in  support of its case. No evidence was adduced in their  defence by the accused persons.  The Special Judge,  Dacoity Affected Area, Bharatpur convicted accused

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Netrapal, Dhanpal, Raju and Shyam Singh under  Section 395 IPC and ordered them to undergo rigorous  imprisonment for seven years. Netrapal, Lakhmi and  Vijendra were convicted for offences punishable under  Section 3 read with Section 25(1) (a) of the Arms Act and  were ordered to undergo rigorous imprisonment for three  years.         On appeal, the High Court acquitted all the accused  of the charges giving them benefit of doubt in the matter  of identification of the accused persons; of recovery of  articles at their instance and of identity of articles and  ornaments.           With regard to the identification of the accused  persons at the time of commission of offence, the High  Court found that the dacoity was committed during the  night intervening 25th and 26th November, 1987.  Admittedly, it was a dark night. The evidence was not  consistent as to electricity at the house of PW1 Ramji  Lal. So far as Ramsukh is concerned, temporary electric  bulb was there in the chowk. But the evidence also  showed tht the bulb was not working. There was also  inconsistency as to whether there was electricity in the  village. The Court also considered the statement of PW  23 Ramswaroop Yadav, SHO.  He did not mention as to  at which place the electric bulb at the house of Ramsukh  was on, nor was the existence of the bulb was shown in  the site-plan-Ex. P2.  He orally mentioned that there was  electric light in the village. The Court noted that there  was no reason for the SHO not to mention the presence  of electric bulb in the site-plan if it was there as it was a  very important aspect and it was the case of prosecution  that the witnesses had identified the dacoits in the light  of electric bulb. The Court also observed that it was not  possible that the dacoits would come in such a way that  they could be easily identified by village people. They  would try to hide their identities. According to the High  Court, the statement of all the witnesses who had stated  that they had identified the dacoits in the light was ’false  and unbelievable’ and in the dark night, the witnesses  could not have identified the miscreants.         With regard to identification of accused, at the  identification parade, the High Court considered the  evidence of PW 1 Ramji Lal, PW 6 Sukkho and PW 7  Rekha who stated that they came to know about the  arrest of dacoits after few days. "All this shows" observed  the High Court, "that the accused persons were arrested  just after 7-8 days of the incident" but their arrest was  shown on December 21/22, 1987. For a number of days,  the accused persons were detained at the police station.   Immediately, their arrest was not shown.  The Court  proceeded to state that according to the prosecution, just  after their arrest, the accused persons gave information  under Section 27 of the Evidence Act and on the basis of  that information, certain articles were recovered.  But,  according to the prosecution witnesses, they had come to  know 7-8 days after the incident that the accused  persons had been arrested and that the stolen articles  were recovered.  The Court observed that it meant the  arrest of the accused persons, their giving information as  well as the recovery were "all false ones and they all have  been manipulated later on".         The Court also found the recovery of the articles as  doubtful because prior to the arrest of the accused  persons and before their giving information under  Section 27 of the Evidence act, the articles were

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recovered by the police.  Hence, the Court observed that  the alleged recovery as well as the identification of the  ornaments were all farce. The High Court also observed  that identification parade was not conducted in a fair  and proper manner and no precautionary steps had  been taken by the Magistrate. The High Court, therefore,  held that the trial court was wrong in convicting the  accused and the prosecution "failed to prove beyond  reasonable doubt that the appellants (accused) were the  persons who had committed the dacoity as alleged by it".         We have been taken by the learned advocates for  the parties to the evidence as also to the findings  recorded by the trial Court as well as by the High Court.  In the facts and circumstances of the case, in our  opinion, it cannot be successfully contended that the  High Court was wrong in granting benefit of doubt to the  accused and in passing an order of acquittal.         We may, however, advert to one aspect before  parting with the matter. While allowing the appeals filed  by the accused and in extending benefit of doubt, the  High Court was rather harsh in making certain  observations and in using strong language against the  prosecution witnesses. For instance, the prosecution  evidence was not consistent as regards availability of  electric light at the place of offence. One may appreciate  that in such circumstances, the Court may be on its  guard and consider the evidence carefully. The High  Court, however, observed that the statements of  prosecution witnesses were ’completely false and  incorrect ones’.         In our considered view, the above comment was  neither called for nor justified. In view of conflicting  statements, the Court may not believe a version against  the accused. But it does not necessarily mean that the  other version was ’false’ or ’incorrect’.         Again, some of the witnesses stated that they heard  that the accused were arrested after few days. But the  evidence of Investigating Officer was that the accused  were arrested on December 21/22, 1987. The Court, in  the light of the above facts, may not rely on such  evidence but to hold that the accused were arrested and  were detained but such detention was not shown was  not at all justified.         Similarly, the High Court has passed strictures  against PW 21 Barkatullah Khan, Additional Munsif and  Judicial Magistrate, II. Accoridng to the High Court,  though the Magistrate had stated that he had taken all  steps after the recovery of ornaments and had sent one  of the clerks of the Court with a direction to bring similar  ornaments from the market without showing those  ornaments to prosecution witnesses, the statement of  the Magistrate could not be believed. The High Court  stated; "How did the Magistrate know that the clerk who  had gone with those ornaments, to fetch similar type of  ornaments, did not show those ornaments to either the  witnesses or other persons"?         In our considered opinion, the above remark was  uncalled for, to say the least. There is nothing on record  to show that the ornaments were shown to prosecution  witnesses or to any other person. Moreover, it will be too  much to impute motive either in the Magistrate or in the  clerk of the Court without there being anything on  record.         It cannot be gainsaid that while dealing with a case  on hand, a Court of Law may comment on the conduct of

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parties or witnesses and may also make necessary  observations keeping in view the evidence adduced by  them. It is also true that the Judges are flesh and blood  mortals with likes and dislikes and normal human traits.         Thomas Reed Powell once said; "Judges have  preferences for social policies as you and I. They form  their judgments after the varying fashions in which you  and I form ours. They have hands, organs, dimensions,  senses, affections, passions. They are warmed by the  same winter and summer and by the same ideas as a  layman is."         Justice John Clarke has also stated; "I have never  known any judges, no difference how austere of manner,  who discharged their judicial duties in an atmosphere of  pure, unadulterated reason. Alas! we are ’all the common  growth of the Mother Earth’ - even those of us who wear  the long robe." (emphasis supplied)         At the same time, however, it cannot be overlooked  that judicial restraints and discipline are necessary to  orderly administration of justice. One must always keep  in view golden advice given by S.K. Das, J. in State of  U.P. v. Mohd. Naim, (1964) 2 SCR 363 : AIR 1964 SC  703; "If there is one principle of cardinal  importance in the administration of justice, it  is this : the proper freedom and independence  of Judges and Magistrates must be  maintained and they must be allowed to  perform their functions freely and fearlessly  and without undue interference by anybody,  even by this Court. At the same time it is  equally necessary that in expressing their  opinions Judges and Magistrates must be  guided by considerations of justice, fair-play  and restraint. It is not infrequent that  sweeping generalizations defeat the very  purpose for which they are made. It has been  judicially recognized that in the matter of  making disparaging remarks against persons  or authorities whose conduct comes into  consideration before courts of law in cases to  be decided by them, it is relevant to consider  (a) whether the party whose conduct is in  question is before the court or has an  opportunity of explaining or defending  himself; (b) whether there is evidence on  record bearing on that conduct justifying the  remarks; and (c) whether it is necessary for  the decision of the case, as an integral part  thereof, to animadvert on that conduct. It has  also been recognized that judicial  pronouncements must be judicial in  nature, and should not normally depart  from sobriety, moderation and reserve."                                                   (emphasis supplied) [see also Samya Sett v. Shambhu Sarkar, (2005) 6  SCC 767; V.G. Ramachandran, ’Law of Writs’,  Revised by Justice C.K. Thakker and M.C.  Thakker, 6th Edn., 2006; Vol. 2; pp. 1788-91]

       In the facts and circumstances of the present case,  in our considered view, neither the remarks made by the  High Court against prosecution witnesses were justified  nor the language used was called for. The observations  were also not necessary for determining the question in

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controversy.  They are, therefore, ordered to be deleted.         Having considered the facts and circumstances in  their entirety, we are of the view that the High Court was  not wrong in coming to the conclusion that the  prosecution failed to prove ’beyond reasonable doubt’  that the accused were the persons who had committed  the dacoity and, hence, they could not be convicted. The  appeals are dismissed accordingly.