Full Judgment Text
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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