JUDGMENT
1. These three applts. were tried along with certain other persons by the Assistant Ses. J. of Asansol with the aid of a Jury Madha Singh & Hazara Singh were tried on charges Under Sections. 395 & 397, I. P. C. The Jury returned a unanimous verdict of guilty against Hazara Singh Under Section 395, I. P. C.r but not guilty against the charge Under Section 397, I. P. C. They returned a unanimous verdict of guilty against Madha Singh under both the charges Under Sections 395 & 397, I. P. C. They returned a unanimous verdict of guilty against Harnam Singh Under Section 412, I. P. C. The learned Judge accepted the verdict and acquitted Hazara Singh of the charge Under Section 397, I. P. C., but convicted him Under Section 395, I. P. C., and sentenced him to R. I. for five years. He con-
victed Madha Singh Under Sections 395 & 397, I. P. C., & sentenced him to R. I. for seven years Under Section 397 but passed no separate sentence Under Section 395, I. P. C. He convicted Harnam Singh Under Section 412, I. P. C., & sentenced him to R. I. for four years.
2. The prosecution case was that on 27-2-1949, there was a dacoity at the bungalow of Srigopal Goenka in course of which ornaments, jewellery including a watch, & cash were stolen, & that Hazara Singh & Madha Singh along with others took part in the dacoity. It is further alleged that accused Madha Singh was armed with a gun. It is alleged that one Mavado wrist watch which belonged to Srigopal was taken away by the dacoits & was found in the possession of accused Harnam Singh. It is said that he retained this in his possession with the knowledge that it was stolen property & that its possession had been transferred by a dacoity.
3 Mr. Mukherjee appearing for the applts. had made several criticisms as regards the Judge’s charge to the Jury & it is necessary to consider these criticisms as they affect the three applts. separately.
4. As regards Hazara Singh, it appears from the record that he was released on bail on 25-5-1949, & that when he was on bail he appeared in the test identification parade that was held on 20-8-1949. The only evidence to show that this applt. took part in the dacoity was the evidence given in Ct. by Srigopal identifying him as one of the persons who took part-in the dacoity. The most important evidence that the Judge of facts had to consider in assessing the value of the evidence given in Ct. was the evidence as regards the test identification parade wherein it is stated that the witness was able to point out this applt. when he, along with 30 other suspects was mixed up with 60 other persons. The value of identification at a test parade depends to a very large extent on whether the identifying witness had any opportunity between the occurrence & the test identification parade to see the suspect. If, as is usual, the Suspect remains in custody after his arrest, the opportunity of the identifying witness seeing him is reduced to a minimum; if, however, the suspect has been let out on bail the opportunity of the identifying witness seeing him is considerably increased. It is not reasonable in our opinion to expect the accused to show positively when & where the identifying witness had the opportunity to see him. There was in this case this important circum-stance that the accused was on bail for a considerable period, viz., from 25-5-1949 to 20-8-1949, during which there was certainly an opportunity for the witness to see him. This circumstance was not pointed out by the learned Judge to the Jury. The omission to do so is in our opinion a serious misdirection which vitiated the learned Judge’s charge so far as this accused is concerned.
5. Considering the evidence for ourselves we find that there is no other evidence on the record to show that this applt. took any part in the dacoity. There is only the evidence of Srigopal in Ct. which is sought to be corroborated by his identification at the test identification parade. For the reasons mentioned above it is not possible for a Judge of facts to attach much weight to this evidence of test identification & it must be held that there is scope for reasonable doubt as regards the correctness of the identification of the applt. by Srigopal. Our conclusion, therefore, is that the misdirection in his case has resulted in failure of justice. We accordingly set aside the order of conviction & sentence passed against this applt. & order that he be acquitted.
6. As regards the Judge’s charge to the Jury with respect to the applt. Madha Singh, Mr. Mukherjee contended that the evidence on record shows that Srigopal was found unconscious immediately after the occurrence. Admittedly the only evidence to show that this applt. took part in the dacoity & was armed with a gun was the evidence of Srigopal in Ct. sought to be corroborated by his evidence of identification in the test identification parade. If there was anything to show that at the very time Srigopal claims in his evidence to have seen the accused he was not in his senses, that would certainly be an important thing for the Jury’s consideration. We are unable to find, however, anything to support such a conclusion. The evidence of Bryan Miller that he saw Srigopal unconscious cannot possibly be read to mean that Srigopal was unconscious at the time when he claims to have seen this accused. In examination-in-chief the witness Bryan Miller said that when he went inside the house he found Srigopal unconscious & the house was in a turmoil. In cross-examination he said that he saw Srigopal in an unconscious state in the strong room. Later on, this witness said that he saw Srigopal in an unconscious state when the dacoits left the bunglow. As we read the evidence, it is abundantly clear that what the witness is speaking of is as regards what he saw after the dacoits had left the bunglow. It may very well be that Srigopal was actually unconscious when the witness arrived, but that, as we have said, is no ground for thinking that he was unconscious at the time when he claims to have seen the accused. Mr. Mukherjee has also drawn our attention to a statement of Hariprasad’s mother that Srigopal became unbalanced on being hit. It is difficult for us to understand what she actually meant by the word “unbalanced”. Any way we are unable to find from this that Srigopal was unconscious at the time when he claims to have seen the occurrence. The omission of the learned Judge to tell the Jury about the evidence as regards Srigopal becoming unconscious does not amount in our opinion to any misdirection.
7. Mr. Mukherjee next contended that the learned Judge misdirected the Jury in not telling them in greater detail about the evidence given by the Mag. who held the test identification parade. In our judgment this contention cannot succeed. If the evidence had mentioned any material circumstance which might have thrown some doubts as regards the regularity of the identification parade, the omission to point out such details would certainly be a misdirection. We are unable, however, to find any such circumstance in the evidence of this witness.
8. Comment was also made on the fact of non-examination of the person known as “G. R. O.” about whom the Mag. has made the following remark :
“I went inside & then sent information to the G. R. O. It is business of the G. R. O. to send down the identifying witnesses when called by me.” We are unable to accept Mr. Mukherjee’s contention that this shows that the G. R. O. was a material witness & consequently we are unable to accept his contention that the learned Judge should have told the Jury about the effect of non-examination of this person.
9. Mr. Mukherjee also tried to make a point that no Sikh was included among the 60 persons who were with the suspects mixed up in the test identification parade of 20-8-1949. The Mag. did say that these under-trial prisoners were almost similarly dressed & were of the same nationality & social status. It is important to see that though there was a suggestion as regards the other test identification parade which was held on 3-9-1949, that no Sikh was among those persons, no such suggestion was made as regards the test identification parade held on 28-8-1949. In our opinion, there was no reason for the learned Judge to tell the Jury that no Sikh was included among the persons who with the suspects were mixed up. The evidence in fact indicates that there were probably other Sikhs among them. We are unable to accept the contention that the learned Judge misdirected the Jury on this point.
10. On a consideration of the evidence we are of opinion that the charge was fair & full as regards this applt. Madha Singh & there was no misdirection which can be said to have vitiated the charge. We would accordingly dismiss the appeal of Madha Singh.
11. As regards Harnam Singh the prosecution could only succeed, assuming that the watch which was produced in Ct. was proved to have been stolen in the dacoity on 27-2-1949, & that it was recovered from the possession of accused Harnam Singh on 27-5-1949–it may be mentioned that this last fact is not challenged before us–if the prosecution could also convince the Ct. that the accused had knowledge or reason to believe that it was a stolen property & knew that the possession thereof had been transferred by the commission of a dacoity. The learned Judge rightly told the Jury that while the prosecution wanted to have the benefit of presumption Under Section 114, Evidence Act, from the fact that it was found in the possession of this applt. in May 1949, this recovery would have little bearing on the point of knowledge because the recovery took place about three months after the dacoity. He also rightly directed the Jury that the decision of the question really depended on whether they could accept the evidence of Ram Chandra Punjabi, P. W. 24. This witness pointed to the accused Harnam Singh in Ct. & said that on the third month of the last English year (he was giving evidence in 1950) he saw the accused person at Kalipahari in a tea shop & the accused wanted to sell a watch. He also identified the watch in Ct. Mr. Mukherjee contended, & in our opinion rightly, that the very important consideration which should have been placed before the Jury for the purpose of assessing the evidence of this witness were the facts that this accused person was not known to the witness from before, he had not attended any test identification parade for identifying this applt. that the witness admitted that he did not know the names of the English months, & that the watch was not also mixed up with other watches to test this witness’s ability to identify the watch. The omission to point out these considerations to the Jury, in our opinion, amounted to serious misdirection.
12. As the learned Judge rightly told the Jury, the prosecution could only succeed in proving guilty knowledge on the part of this applt. if this witness could be believed. Even supposing this witness was giving honest evidence, the Judge of facts had to be sure that he was not making any mistake about the person he was identifying when it was admitted that the witness did not know the accused from before. In view of the fact that this witness’s ability to identify this applt. was not tested, it is not possible for us to accept as correct his identification of this applt. in Gt. as the person whom he saw offering a watch for the sale.
13. It must, therefore, be held that the learned Judge’s misdirections as mentioned above have resulted in a failure of justice & the verdict of the Jury & the order of convic-, tion & sentence passed thereupon on the applt. cannot be allowed to stand. We, therefore, allow the appeal of this applt., set aside the order of conviction & sentence passed on him & order that he be acquitted.
14. The result, therefore, is that the appeal, so far as it relates to Harnam Singh Akali & Hazra Singh is allowed, & so far as it relates to Madha Singh, is dismissed.
15. Let the applts, Harnam Singh Akali & Hazara Singh be set at liberty at once.