Anwar and Others vs State

S.I. Jafri, J.—Anwar and Ghaseeta have come up in appeal against their conviction u/s 395 IPC and sentence of 5 years RI each recorded by Sri. B.K. Sharma, 4th Addl. Sessions Judge, Bijnor by his judgment and order dated 25-1-77 in Sessions Trial No. 19 of 1979.

The case of the prosecution is that in the night intervening between 9/10-6-1975 at about 12.30 a dacoity was committed at the house of Hanif complainant in village Mohammad Alipur, P.S. Afzalgarh District Bijnor by 10-15 persons and the dacoits succeeding in taking away looted property consisting of ornaments and watches. The case of the prosecution is that the complainant Hanif was asleep in the Court-yard of his house alongwith Hamid PW 2 and Akhtar PW 4 upon the hue and cry of the women-folk of the house, the complainant Hanif was awakened at about 12-30 A.M. and he noticed one dacoit on the roof having gun in his hand. There were in all 10-15 dacoits, some were inside the house of the complainant and some were outside the house. The complainant some-how managed to sneak out of his house and raised the alarm whereupon, Sharif Ahmad, Qifayat etc! positioned themselves on the southern side of the house while, Haji Tufail, Khalil, Ameera PW 5, Akhtar PW 4 and Hamid PW 2 collected on the northern Side of the house of the complainant. Amongst them, Haji Tufail, Ameera and Akbar had torches with them and they flashed their torches whereupon dacoits came out of the house and they were recognised in the light of the torches and also in the light of Thatch (Chhappar) which was set on fire by Khalil Khan. The thatch was on the eastern side of the house of the complainant. Dacoits ran towards the south alongwith the looted property consisting of watches and ornaments. One of the dacoits opened fire which caused injuries to Sharif, Akhtar and Jameel. However, Hanif complainant, Ameera and Hamid caught hold of one of the dacoits on the spot after giving beating to him. The remaining dac6its succeeded in running away from the place of occurrence. The apprehended dacoit gave out his name as Hamid and stated that he was procured for dacoits by one Nadan Shah. After the occurrence, the complainant alongwith the injured dacoit Hamid and other persons of his village left for the police station but on way to police station, the apprehended dacoit breathed his last. On reaching the police station, the complainant Hanif dictated an oral report of the occurrence to the Head constable Laxman Singh at 2.30 A.M. The Head constable prepared a chik report and also registered a case u/s 395 IPC in the General Diary of the police station against 10 to 15 unknown dacoits. It was also dictated by Hanif in his report that the apprehended dacoits had given out his name as Hamid and he had confessed before them that he alongwith others had been procured for dacoity by one Nadan Shah. The injured persons Zameer, Sharif Ahmad and Akbar were sent to the dispensary where their injuries were examined. Dr. R.B. Saxena Medical Officer of Government Hospital Sherkoot examined Zameer Ahmad at 6.45 A.M. on 10-6-75. His injury report is Ex Ka 10.

Dr. Saxena also medically examined Akhtar at 7.30 A.M. and found the following injury on his person:

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Dr. Saxena also medically examined Sharif Ahmad on 10-6-75 at 8 A.M. and had found injuries on her person. The injury report is Ex Ka 9.

The Investigating Officer prepared inquest on the dead body of the deceased dacoit Hamid and had found 10 ante-mortem injuries on his person consisting of lacerated, incised, punctured swelling and multiple abrasions. In the opinion of the Doctor, the cause of death was shock due to fracture of ribs left side with laceration of wounds.

The investigation of the case was taken by Bhim Singh PW 8, who interrogated the witnesses at police station Afzal Garh and thereafter, he went to Alipore Chauhar and examined the rest of the witnesses. He inspected the site of occurrence and prepared the site-plan Ex Ka 14. He also found the ashes of partly burnt Thatch (Chhappar) and collected the same. He also found empty cartridge Ex 2 and chopped piece (Ext 3) of gun and took the same in his possession. He sealed the ashes in a cloth Ex 4. He also prepared a joint memo Ext Ka 15 of the above mentioned articles found by him at the place of occurrence. He also inspected the torches of Khalil, Haji Tufajl and Akhtar which were found in working order and after preparing the memo Ex Ka 2, he handed back the torches to Khalil, Haji Tufail and Akbar.

During investigation, he arrested Nadan Shah and Anwar Appellants on 11-6-75 and made them Baparda. He brought them to police station where they were kept Baparda in the lock up and next day they were lodged in the District Jail in Baparda condition. Ghaseeta Appellant was apprehended on 22-6-75 at about 6.30 P.M. from near the culvert of the canal on the road leading to village Chand Khera by constables Nanhe Singh and Talib. After the arrest, Ghaseeta Appellant was also made Baparda and he was put inside the lock-up of Police Station Civil Lines Moradabad. Next day, he was taken out from the lockup and produced before the Magistrate in the Court in Baparda condition and under the orders of the Magistrate concerned, he was taken to Bijnor by constable Nanhe Singh of Police Station Civil Lines. Nanhe Singh constable escorted the Appellant Ghaseeta to police station Kotwali Bijnor in the evening and he was kept Baparda in the lock up of police station Kotwali, Bijnor. Next morning Ghaseeta was taken out again from the lock-up of the said police station and lodged in the District Jail Bijnor by constable Nanhe Singh in Baparda condition.

Appellants Anwar, Ghaseeta and other suspects including Nadan Shah were subjected to identification proceedings in Jail conducted by Sri. S.K. Sharma PW 7 SDM on 18-7-75 and they were correctly picked up by the witnesses: Ghaseeta was correctly identified by Hamid PW 2 and Tufail PW 3 and they committed no mistake. Anwar Appellant was correctly identified by Hanif PW 1, Hamid PW 2, Tufail PW 3 and Akhtar PW 4 and out of them, Akhtar correctly picked up three suspects and committed one mistake whereas Hanif PW 1, Hamid PW 2 and Tufail PW 3 did not commit any mistake. Nadan Shah was also correctly identified by more than one witnesses.

After completing investigation, Bhim Singh PW 8 submitted charge-sheet Ex Ka 17 against accused persons. The Appellants alongwith Nadan Shah and others were committed to the Court of Sessions to stand their trial u/s 395 IPC but the case against Nadan Shah was separated from the case of the Appellants.

In support of the prosecution case, 8 witnesses were examined, out of them, Hanif PW 1, Hamid PW 2, Tufail PW 3, Akhtar PW 4 and Ameera PW 6 were examined as eye witnesses of the occurrence.

Hanif PW 1 has narrated the prosecution case in detail. He deposed that during the night of occurrence at about 12.30 mid-night, while he was asleep in his house, he was aroused from his sleep on hearing the alarm raised by the women folk of his house and noticed one dacoit standing on the roof. He also noticed 10 to 15 dacoits inside the house. He some-how managed to escape out of the house and raised hue and cry and upon his alarm, a number of persons collected on the northern side and southern side of his house. He further deposed that Khalil, in the meantime, set fire to the Chhappar (Thatch) in front of his house towards east which generated sufficient light. He further deposed that out of the persons collected, Haji Tufail, Akbar and Ameera carried torches which they flashed towards the dacoits whereupon dacoits came out of the house and one of the dacoits opened fire which resulted in injuries to Zameer, Akhtar and Sharif. Thereafter, they succeeded in capturing one dacoit by giving beating to him and on being questioned, he disclosed his name as Hamid. The apprehended dacoit had also confessed before them that he and others had been procured for committing dacoity by one Nadan Shah. After the occurrence, he alongwith other injured and apprehended dacoit Hamid started for the police station Afzal Garh but on way to police station, the apprehended dacoit Hamid breathed his last. He further stated that on reaching the police station, he dictated his oral report of the incident to Head constable at 2.30 A.M. on 10-6-75. The injured, Zameer, Sharif and Akhtar were sent to Government Hospital Sherkoot where their injuries were examined. The witness had also identified Ghaseeta and Anwar in the Court stating that he had identified them in the test identification conducted in Jail. According to the witness, he did not know the Appellants from before the occurrence and he had seen them only at the time of commission of the dacoity and thereafter the test identification in the District Jail. He also deposed that in between the period, he never saw them. Hanif is a natural witness as the dacoity had been committed at his house. His statement finds corroboration from Hamid PW 2 who is an injured witness. Besides Hamid, his statement is also lent corroboration by Tufail, Akhtar and Ameera Hamid PW 2 Tufail PW 3 and Akhtar PW 4 have also identified the Appellants correctly in Jail without any mistake. They have also picked them correctly in the Court. According to them, they did not know the Appellants from before the occurrence. Ameera PW 5 also identified the Appellant in the Court and claimed that he identified the Appellants in the test identification in Jail also. However, from a perusal of test identification memo Ex Ka 13 and also from the statement of Sri. S.K. Sharma, SDM PW 7 Ameera did not participate in the identification proceedings of the Appellants in Jail. As such, he does not appear to be a witness of good antecedents and his evidence cannot be relied upon against the Appellants in the absence of corroboration by his identification in the parade in jail.

From the statements of the above witnesses it becomes abundantly clear that a dacoity was committed at the house of Hanif on the fateful night.

With regard to the arrest of Ghaseeta Appellant, the learned Counsel for the Appellant contended that Ghaseeta Appellant was arrested on 22-6-75 at about 6.30 p.m. from near the canal culvert on the road leading to Chand Khera village by constables Nanhe Singh and Talib of police station Civil Lines, Moradabad. With regard to the arrest of Ghaseeta Appellant, the only evidence that has come in the case, is in the form of an affidavit sworn by Nanhe Singh constable. According to the contents of affidavit filed by constable Nanhe Singh, Ghaseeta Appellant was arrested by him and Constable Talib at about 6.30 P.M. on 22-6-75 on the culvert of Canal road, leading to village Chand Khera. After arresting Appellant Ghaseeta, he was made Baparda and brought to police station, Civil Lines, Moradabad in Baparda condition in the evening and he had put him inside the lock-up. Next day, he took out Ghaseeta Appellant from the lock up of the police station in Baparda condition and produced him before the Magistrate at Moradabad and under the order of the Magistrate, he took Ghaseeta in Baparda condition to Bijnor where he lodged him at police station Kotwali in the lock up in the evening in Baparda condition. Next morning, he again took out Ghaseeta Appellant from the lock up of the police station Kotwali, Bijnor in Baparda condition and admitted him to District Jail Bijnor in Baparda condition. It was contended by the learned Counsel for the Appellant that there is no evidence on record either oral or by way of an affidavit on behalf of the prosecution to show that Ghaseeta Appellant remained throughout Baparda at police station Kotwali in Bijnor. In a case of dacoity, where the sole evidence against the accused hinges on identification, a burden lies on the prosecution to establish satisfactorily that after the arrest, the accused was kept Baparda till the time of his lodging in District Jail. In the present case, factually, there is no evidence to show that Ghaseeta Appellant was kept strictly Bapaida at Police Station Kotwali Bijnor in the night intervening 22/23 June 1975. Under the circumstance, it will be quite unsafe to place credence on the identification evidence as the possibility that Ghaseeta Appellant had been shown to the prosecution witnesses at police station Kotwali Bijnor, cannot be ruled out. Moreover, there is no explanation on the record as to why Ghaseeta Appellant was brought from Moradabad to Bijnor after his arrest. Under the circumstance, the case against Ghaseeta Appellant is tainted with grave doubts and he therefore, deserves to be acquitted. Once the investigation in the case is found to be tainted, reliance cannot be placed on the evidence of identification for the conviction of the accused.

It was contended by the learned Counsel for the Appellant Anwar that the learned Magistrate Sri. S.K. Sharma, PW 7 who conducted the identification proceedings in Jail did not ensure adequate precaution to conceal one of the eyes of the Appellant during identification proceedings. It finds mention in the identification memo itself by Sri. S.K. Sharma PW 7 that one of the eyes of the accused was of smaller size than the other. The Magistrate further states in the memo that he had instructed the Appellant to shut his eyes and also directed the other under trials to follow suit at the time of identification proceedings. The aforesaid precaution enforced by the Magistrate, to conceal identification by eye of Anwar Appellant which was admittedly of smaller size, was not at all adequate and satisfactory. Even if eyes were closed, the smaller eye would have been conspicuous by its visibility rendering it easier for the witnesses to identify the accused in the identification proceedings. Under the circumstance, it will be unsafe to place reliance on the testimony of the eye-witnesses. Anwar Appellant under the circumstances, also deserves to be given the benefit of doubt as adequate precaution to conceal the smaller eye of the Appellant Anwar was not taken by the learned Magistrate during the test identification proceedings.

In the result, the appeal is allowed. The conviction and sentences recorded by the trial Court against the Appellants Ghaseeta and Anwar are set aside. The Appellants are on bail. They need not surrender. Their bail bonds are discharged.