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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.