JUDGMENT
G.S.N Tripathi, J.
1. The then Vth Addl. Sessions Judge, Farrukhabad, vide his judgment and order dated 27-11-79 passed in S. T. No. 3268 of 1974 State v. Mithoo Singh and Jalal Uddin, held the accused Mithoo Singh and Jalal Uddin guilty on a charge under Section 395, I.P.C. and sentenced them to undergo 5 years’ R. I.
2. The prosecution case started on the basis of the F.I.R. lodged by Vishwa Nath Singh, P.W. 1 at the police station Talgram on 16-6-72 at 7.15 A.M. The distance of the police station is about 4 miles from the place of occurrence. The incident is said to have taken place on 15/16-6-72 around midnight.
3. The complainant has alleged that he was sleeping in his house. A lantern was burning in the Angan of his house. Around midnight, about 14-15 dacoits entered his house and they caught hold of the complainant and his wife. They were compelled to sit inside the courtyard. Their movements were being watched by 3-4 dacoits. The remaining dacoits also came inside the coutryard and they started threatening the complainant and his wife. They were flashing their torches as well. They were constantly on move, going inside and outside. Four of them had guns. Others had lathis, dandas, spears etc. After hearing the alarm, P.W. 2 Harbans Singh, P.W. 4 Shiv Pal and others arrived there. The phoos kept at a distance, was burnt. That gave abundant light. The witnesses had also torches and they were flashing them. The dacoits were of different size. After completing dacoity, they retreated. Thereafter the F.I.R. contains a list of the properties looted.
4. During the course of investigation, the I.O. reached the spot, prepared the site-plan, inspected the torches and lantern and prepared the memos for them. On differnet dates the accused were arrested. They were put up for test identification parade. They were identified by witnesses Harbans Singh P.W. 2, and Shiv Pal, P.W. 4. Vishwanath Singh, P.W. 1 also identified the dacoits. After concluding the investigation the I.O. submitted the charge sheet against the accused.
5. The prosecution examined P.W. 1 Vishwanath Singh. He has narrated the prosecution story as contained in the F.I.R. He also identified the accused in the Court.
6. Harbans Singh P.W. 2 and Shiv Pal, P.W. 4 had given evidence in the same vein.
7. P.W. 3 Genda Lal had burnt the phoos.
8. P.W. 5 Sri Roshan Lal Verma is the Investigating Officer,
9. Other documents on the record were admitted by the learned counsel for the accused. Therefore formal evidence was not led.
10. The accused in their statements under Section 313, Cr. P. C. have said that they were known to the witnesses from before and they were not involved in the dacoity. They have led no evidence in. their defence.
11. After perusal of the entire evidence and circumstances on the record, the learned lower Court concluded that the prosecution had proved its case beyond a shadow of reasonable doubt against the accused. He accordingly sentenced them as noted above.
12. Feeling aggrieved, the accused appellants have preferred this appeal.
13. I have heard learned counsel for the parties at stretch and gone through the record. I find that this appeal has got much force and it deserves to be allowed.
14. The factum that the dacoity was committed in the house of Vishwa Nath Singh on 15/16-6-72 is not disputed. The dacoits were armed with firearms and various other weapons, which they used during the course of dacoity. As many as three persons received firearm injuries on their persons on the firing resorted to by the dacoits. Learned counsel for the accused has not challenged the factum of dacoity and the finding on the point arrived at by the learned lower Court.
15. The main question for consideration is as to whether the prosecution has proved involvement of these accused in this case. For that, the learned lower Court has given a chart at page 4 of his judgment. The performance of Vishwa Nath, P.W. 1 was 50% in the test identification parade, that of Harbans was 100% and that of Shiv Pal was 66%. Technically the evidence can be held to be sufficient for recording a conviction. But one thing is important that the accused were put up for test identification parade after more than 54 days of the dacoity. The dacoity was committed in the night of 15/16-6-72. The test identification parade was held on 10-8-72. After lapse of such a long time, the memory is bound to fail and that is also responsible for bad performance of the witnesses. The play of imagination is bound to creep in such matters. Not only this, the identification of some of the accused was conducted on 21-8-72 i.e. most soon after this test identification parade. Hence the performance of these witnesses in that can also be taken note of. Taking all these factors into consideration, it cannot be said that the performance of the witnesses is good for convicting the accused, holding them to be involved in this case, beyond a shadow of reasonable doubt.
16. Another important feature of the case is that there was a scanty light available to the witnesses. There was a lantern inside the house, which could be availed of by Vishwanath, P.W. 1. His performance at the test identification parade was about 50%. That is of negligible value. This lantern light was not available to other witnesses, namely, Harbans Singh, P.W. 1 and Shiv Pal, P.W. 4. They could have availed the light of burning phoos. The person who had burnt the phoos, is Genda Lal, P.W. 3. He admits in the cross-examination that he had burnt the phoos when the dacoits had gone about 10 or 12 paces away. Therefore, this light could not be availed of by the witnesses to identify the dacoits because in that light, they could only see their backs and not the faces, which was not sufficient to identify them. Not only this, there is no evidence on the record to prove that right from the date of arrest till they were lodged in the District Jail, and thereafter the accused were kept Baparda. Under these circumstances, the value of test identification parade is totally disminished.
17. A look at the site plan will show that there is a Banyan tree towards the south of the Kothi of Tej Singh. The witnesses had assembled there. From there, the incident inside the house of the complainant could not be seen. Therefore, the movements of the dacoits inside the house of the complainant, was not helpful to the witnesses to identify them. They could have just seen the dacoits when they were outside the house. The index prepared by the I.O. in the site-plan for the retreat of the dacoits, shows that the witnesses could not have seen their faces while the dacoits were retreating. So this will also be a block in their identification performance. In the light of torches only the backs of the dacoits could be seen at the worst. But that was not sufficient to these witnesses to identify them correctly.
18. There is no other evidence on the record. The dacoits were firing intermittently naturally, to scare away the witnesses, who could have tried to come closer to the dacoits. That is also a factor to be noted. Thus the witnesses could not have been able to see the dacoits from a close range.
19. Taking the totality of the circumstances on the record, I find that the prosecution has failed to prove its case against the accused beyond a shadow of reasonable doubt. Therefore, the accused deserve to be acquitted.
20. The appeal is allowed. The judgment and order dated 27-11-79 passed by the then Vth Addl. Sessions Judge, Farrukhabad are set aside. Accused Mithoo Singh is in Jail. He shall be released from jail forthwith unless wanted in any other case. His bail bonds and surety bonds are discharged. Accused Jalal Uddin is on bail. His bails bonds and surety bonds are discharged.
21. The order of arresting the accused passed during the course of hearing of the appeal, is recalled.
22. A copy of this order shall be given to learned counsel for the parties on gay merit of usual charges.