Habal Shaikh and anr. Vs. the State - Court Judgment

Ajit Kumar Sengupta, J.

1. The two appellants in this appeal were convicted Under Section 396 of the Indian Penal Code as well as Under Section 9(b)(ii) of the Indian Explosives Act. Each of the accused was sentenced to suffer rigorous imprisonment for life for the offence punishable Under Section 396 of the Indian Penal Code, but no separate sentence was passed for offence punishable Under Section 9(b)(ii) of the Indian Explosives Act. This appeal is directed against the said order of conviction and sentence of the two appellants Habal Shaikh and Samsul Shaikh.

2. Shortly stated, the prosecution case is that in the night of 26th July, 1984, the deceased Surapati Ghosh and his other family members, namely, P.W. 1 his widow Puspa Bala, P.W. 2 daughter Chinta Rani, P.W.4 son Aloke Ghosh and their labourer Dasarath Rajbanshi after taking their night meals had been to the first floor of the house of Surapati Ghosh for taking sleep at about 11.00 p.m. Thereafter Puspa Bala and Chinta Rani went to the eastern side room of the first floor for their sleep while others were on the adjecent verandah of that room on different beds. At that time P.W. 4 Aloke Ghosh was reading a book by the light of lantern (Mat. Ext. 1) and others were lying on their beds without any sleep. At about midnight they heard some sounds of footsteps and throwing of something from outside in the courtyard and hearing such sounds they became alert. It was noticed by them that several persons armed with weapons and bombs had already entered inside the courtyard and they began to hurl bombs. On seeing that Surapati with his son P.W. 4 Aloke Ghosh each took a hasua or a ramdaw and stood just on the entrance space of the verandah so that none of the miscreants could make their entry on the first floor. Those persons were found to be 25 in number and they were focussing torches and looted away the valuable including cash and utensile etc. from the ground floor rooms. Just after that they tried to make their entry to the first floor and for that they changed bombs aiming at Surapati and his son, put unfortunately Surapati received bomb injuries on the left side of his parietal bone and damaging the brain matter and fell down on the ground. On seeing such pathetic condition of his father, Aloke sat down by his side and became nervous. Any how he managed to escape by scaling down the wall and alerted the villagers and in the meantime the dacoits made their entry in the first floor and after assault to his mother and sister they snatched away their ornaments. Aloke also received injuries of bomb and in the meantime he came back with the villagers when the dacoits left their house with the booty. After coming back he found the condition of his house and father and with the help of the villagers his father was at first removed to Rajgram Primary Health Centre wherefrom he was transferred to Rampurhat Hospital and succumbed to his injuries at about dawn. On their way to hospital, they made request to the Station Master of Rajgram Railway Station to inform over phone or otherwise to Murarai Police Station about the alleged incident in the house of Surapati Ghosh. Station Master of that Railway Station immediately over phone requested P.W. 16, Md. Samswr Khan, Assistant Station Master of Murarai Railway Station to inform the matter to Murarai Police Station. He immediately after receiving such message at about 2.00 a.m. from Shri A.Y. Deb of Rajgram Railway Station sent P.W. 17 a porter of that Station Ramprasad Mahara with written document (Ext. 6) to Murarai Police Station on the basis of which P.W. 12, S.I. Ashoke Kumar Ghosh recorded a G.E. being No. 962 dated 27th July, 1984 (Ext. 3) and with available force being accompanied by other Police officers immediately reached at the house of Surapati Ghosh. There he obtained a statement of P.W. 1 Puspa Bala and forwarded the same to the Police Station through his subordinate, A.S.I. Shyamal Chatterjee with an endorsement to start a specific P. S. Case and directed S.I.D.N. Hazra to investigate the case. The trial was held and the appellants were convicted and the appellants were convicted as aforesaid.

3. The contention of the learned counsel for the appellants is that the entire prosecution case at the trial based on the identification by P.W. 4. There is no other evidence. Accordingly, having regard to the nature of evidence, it was not be safe to convict them on the sole testimony of P.W. 4.

4. Let us now examine the evidence.

5. The incident occurred at 12 midnight. P.W. 1 said that in the house she and her daughter were in the eastern side room of the first floor and her son, her husband and one Dasarath were in the attached Verandah of the first floor. At that time her son Aloke (P.W. 4) was reading some book in the light of a lantern. On hearing the sound, she with her daughter came out of the room to the verandah and found several persons in the courtyard who appeared to be dacoits. On seeing that her husband and son each with 'Chheni' stood at the entrance of the Staircase. She then says :

'They were about 25 in number and they committed dacoity in the ground floor room but could not proceed on the first floor. Those miscreants were hurling bombs. My husband received serious injures by the side of forehead and fell on the ground and they immediately rushed to the first floor. Any how my son escaped their notice and fled away. I could not identify any of them at the time of T.I. Parade.'

P.W.2, the daughter of P.W. 1 said :

'I could not recognise any of those persons. My elder brother also received bomb injury.'

P.W. 4, the son of P.W. 1, however, said :

'When the dacoits were looting away our valuables in the ground floor we noticed by the light of a lantern and they made several attempts to come to the floor but at first they could not succeed. The night sky was very clear and everything was visible. The dacoits were focussing torches on several directions which helped me to notice them. After sometime it was calm and quiet and we thought that the dacoits had left our house. When my father tried to verify that facing downwards, suddenly a bomb was charged which struck on the forehead side of my father and he fell down after receiving such injuries. When they charged bombs I found four persons whom I clearly recognised by the light of the lantern. After seeing the condition of my father I became nervous as I also received injuries of bomb but I made my last attempt when there was scuffling with those dacoits. Any how I tried to flee away by scaling down the boundary wall and I fled away and informed the local people to help us. Immediately many local people came to our house and I narrated them the entire incident stating that I could recognise some of them...... I identified three of the dacoits, two at Jail and one at Court. Both these accused persons were recognised by me along with other absentee accused at the time of the dacoity and accordingly I identified them before the Magistrate. This accused (Samsul) was keeping all the articles of my house on the courtyard when I recognised him and that fact was reported by me to the learned Magistrate. The accused (Habal) was in the gang of persons who hurled bomb aiming at my father. And this fact was stated by me to the Magistrate. I ascertained their names after the starting of this case.'

In cross-examination he said as follows :

'As it was on the first floor verandah it was not possible for me to see the performance of the dacoits in the ground floor rooms...... Just after receiving injury by my father I waited sometime near him and and thereafter I fled away. I stated to the Police Officer that I would be able to recognise the dacoits, but did not state specifically the part played by each of them whom I succeeded to recognise...... I actually reported the incident and the way by which I was succeeded to recognise the dacoits.'

In further cross-examination by the defence he stated as follows :

'We waited with arms just on the junction side between first floor verandah and the staircase leading to that facing north west corner. At that time I clearly noticed the dacoits who were trying to come on the first floor. They charged bomb aiming at us for the first time which struck on my father. At the time of entry into our courtyard they charged several bombs.'

On being examined further he stated as follows :

'This hurricane lantern was burning at the relevant time and by the light of that I was reading a book. The lantern is marked at Mat. Ext. I.'

6. P.W. 22, the Investigating Officer, in his evidence stated that he arrested Yusuf Sk. on 2nd August, 1984. He was produced before the Sub-divisional District Magistrate for holding a T.I. Parade. Subsequently he also made prayers for a T.I. Parade of Samsul Sk. and Habal Sk. All the three accused persons were produced in the T.I. Parade. According to his evidence, P.W. 4, Aloke Ghose did not say the part played by each of the dacoits at the time of committing the dacoity, whom he stated to have recognised. P.W. 4 Aloke Ghosh was examined on 29th July 1984. P.W. 7, the Judicial Magistrate, who conducted the T.I. Parade on 16th August, 1984 in respect of the suspect Yusuf Sk. at Rampurhat Sub-Jail said that Aloke Ghosh, P.W. 4, identified the suspect by touching his hand and also that P.W. 4 had stated before him that the said suspect committed the dacoity after entering into his house. Puspa Bala Ghosh failed to identify the suspect; so also Chinta Rani Ghosh.

7. On 14th November, 1984, P.W. 7, the Judicial Magistrate, held a T.I. Parade in respect of Nawsad Sk. and Habal Sk. Aloke Ghosh, P.W. 4 identified Habal Sk. by touching his hand. He said that Habal Sk. with others threw bomb aiming at his father. On 8th December, 1984, held a T.I. Parade of Samsul Sk. who was identified by P.W. 4 by touching his hand. He stated that the said suspect committed dacoity in their house. Samsul Sk. however stated that prior to the date of the incident he was known to the witness Aloke Ghose, Habal Sk. also stated that he was known to the witness as he was a co-villager of the witness.

8. P.W. 1 said that her husband and son stood on the entrance space of the staircase. The dacoits were about 25 in number and they committed dacoity in the ground floor room but could not proceed to the first floor. Those miscreants were hurling bombs. Her son could escape, he fled away. But P.W. 4 gave a different story. He said, as indicated earlier, that when the dacoits were looting the valuables in the ground floor he noticed by the light of a lantern that they made several attempts to come to the first floor but they could not succeed. There was a lull for some time and when his father tried to enquire, suddenly a bomb was charged which struck on his forehead. He became nervous and also received bomb injuries. He made a last attempt when there was scuffling with the dacoits. He tried to flee away by scaling the boundary wall and ultimately fled away. There is no evidence that he was injured by bomb. Samsul, according to him, was keeping all the articles and Habal hurled a bomb aiming at his father. But before the Investigating Officer he said that Habal Sk. threw a bomb but so far as Samsul is concerned he only said that he participated in the dacoity.

9. Apart from the fact that in the light of a lantern burning on the first floor, it was not possible for P.W. 4 to recognise the dacoits on the ground floor, P.W. 4 did not give any descriptive details of the accused whom he allegedly recognised or the act performed by them. From the evidence of P.W. 4 it would appear that there are contradictions and inconsistency. In a case like this, it will not be safe to rely on his identification evidence along to convict the appellants. Supreme Court in several decisions pointed out the care with which such identification evidence should be accepted. Reliance has been placed on Muthu Swami v. State of Madras reported in AIR 1954 SC 4 : (1954 Cri LJ 236); Vaikuntam Chandrappa v. State of Andhra Pradesh reported in AIR 1960 SC 1340: (1960 Cri LJ 1681); Budhsen v. State of U.P. reported in AIR 1970 SC 1321 : (1970 Cri LJ 1149); Hasib v. State of Bihar reported in AIR 1972 SC 283 : (1972 Cri LJ 233); Md. Abdul Hafeez v. State of Andhra Pradesh reported in AIR 1983 SC 367 : (1983 Cri LJ 689); Wakil Singh v. State of Bihar reported in AIR 1981 SC 1392; Subash v. State of U.P. reported in AIR 1987 SC 1222 : (1987 Cri LJ 991).

10. The principles that can be culled out from the aforesaid decisions are :

1) The facts which establish the identity of an accused person are relevant Under Section 9 of the Indian Evidence Act.

2) Identification proceedings in their legal effect amount simply to this that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They constitute substantive evidence.

3) The substantive evidence of a witness is the statement made in Court and the purpose of test identification is to test that evidence. It is a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding.

4) The evidence of identification in order to carry conviction should ordinarily clarify as to how and under what circumstances the identifying witness came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity.

5) The vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.

6) The two factors of basic importance in the evaluation of identification are firstly the persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and no mistakes are made by them.

7) The identification to be of value should be held without much delay inasmuch as early opportunity to identify tends to minimise the chances of the memory of the identifying witness fading away, by reason of long lapse of time. It is not possible for any human being to remember the features of the accused after a long lapse of time.

8) Where the witnesses in their statements or in oral evidence neither give any description of the accused whom they alleged to have identified in the commission of crime, nor do the witness give any identification marks, viz. stature of the accused or whether they were fat or thin or of a fair or black complexion, it will be unsafe to convict any accused on the basis of a single identification as in such case the reasonable possibility of mistake in identification cannot be excluded.

9) When no explanation is given for delay in holding test identification parade, there is room for doubt as to whether delay in holding identification parade was in order to enable the identifying witnesses to see the accused in the police lock up or in the Jail premises and make a note of his features.

11. In our view, the aforesaid principles will equally apply to the facts of this case.

12. Firstly, the incident occurred on 27th July 1984 and the accused were arrested in early part of October, 1984. Identification Parade of Habal Sk. was held on 14th Nov. 1984 and that of Samsul Sk. on 8th Dec. 1984. Early opportunity to identify tends to minimise the chance of the memory of the identifying witnesses fading away by reason of long lapse of time. The long lapse of time about 4 to 5 months from the date of occurrence is a crucial factor in determining what evidentiary value to be attached to such identification evidence. Delay in holding identification parade raises a doubt as to whether it is in order to enable the identifying witnesses to note the features of the accused in lock up or jail.

13. Secondly, none of the witnesses nor even P. W. 4, the identifying witness had given any description of the accused. It was not even mentioned in the FIR. During investigation also P. W. 4 or his mother or sister did not give any descriptive particulars of the dacoits.

14. Thirdly, the evidence of P.W. 4 did not clarify as to how and under what circumstances he came to pick the particular accused person and the details of the part the accused played in the crime in question with reasonable particularity.

15. On the contrary some accused said before the Magistrate who conducted the identification parade that he was known to the witness Aloke. Habal also stated that he was known to the witness as he is a co-villager of the witness.

16. In view of the aforesaid facts and circumstances and evidence on record we are of the view that it would be unsafe to convict an accused on such a serious offence on the testimony of a single witness.

17. For the reasons aforesaid, this appeal is allowed. The order of conviction and sentence is set aside. The appellants shall be set at liberty forthwith, if not wanted in connection with any other case.

Manabendra Nath Roy, J.

18. I agree.