Ram Baran Chaudhary and Others vs The State of Bihar

Om Prakash, J.—Each of the appellants has been convicted for the offence punishable u/s 92, I.P.C. and sentenced to undergo rigorous imprisonment for eight years and also to pay a fine of Rs. 2,000 and in default, to undergo rigorous imprisonment for a further period of 2 years.

It appears that the informant, Raghvendra Narain Singh, (P.W. 3) was ''Munshi'' (Manager) on Petrol Pump of one Alakhdeo Singh (P.W. 1) situated at Simarkoie village within Rajauli Police Station in the district of Nawadah. On 6.2.1974, at 4 p.m. he was sitting in the office of the said petrol pump. Lal Mohan Rana, a coolie of the petrol Pump, was also there. Four persons arrived there in a car and demanded petrol. The informant informed them that there was no petrol. Then they demanded mobil oil and the informant supplied 5 liters of mobil to them. One of the four returned to his car and kept mobil oil therein. He came back to informant''s office and made over a currency note of Rs. 100 denomination to the informant. When the informant opened the drawer of his table by means of a key, the said person whipped out a country-made pistol and asked him to keep quiet. He warned him that in case he raised alarm he would be shot dead. His three companions surrounded him and Lai Mohan Rana. One of the three moved the sale-proceeds from the drawer and his wrist watch from his hand. They also removed some other properties. While retreating they switched off the light and closed the door of his office from outside. All the four escaped in the car. After the departure of the miscreants, the informant raised alarm which attracted some people. He then informed his employer. F.I.R. was lodged at 9 a.m. on the same day at Rajauli Police Station situated 21/2 miles away from the place of occurrence.

In course of investigation, the police arrested the three appellants and one Indradeo Singh on the same day i.e., 6.2.1974. They were put on test identification Parade on 30.7.1974. Informant Raghvendra (P.W. 3) identified appellants Md. Eqbal and Noor Islam and Indradeo Singh. He could not identify appellant Ram Baran Chaudhary. Again they were put on test identification parade on 11.9.1974 and Lal Mohan Rana identified only appellant Md. Eqbal. Police submitted charge-sheet against all the four and in due course they were put on trial. The 2nd Assistant Sessions Judge, Nawadah, convicted and sentenced them as said above.

In their statements u/s 313, Cr.P.C. the appellants have claimed to be innocent.

P.W. 3 Raghvendra Narain Singh, the informant, claimed to have identified appellant Ram Baran Chaudhary also at the test identification parade besides identifying appellants Noor Islam and Md. Eqbal as robbers.

Referring to such, evidence of the informant, P.W. 3, learned Counsel for the appellants, Sri Subodh Kumar Sinha, who has not challenged the faction of robbery, has argued that by identifying appellant Ram Baran Chaudhary in court as one of the robbers and claiming that he had identified him at the test identification parade also, P.W. 3 has made a false statement. Evidence of P.W. 5 Shyamdeo Singh, the Judicial Magistrate who held test identification parade, shows that P.W. 8 Raghvendra, had not identified appellant Ram Baran Chaudhary as one of the robbers at the test identification parade held by him, Ext. 3/1, the T.I. chart, proves the same. Argument of Sri Sinha is that in the above circumstances no reliance can safely be placed on the evidence of P.W. 3, sole eye-witness, examined, for holding any of the appellants guilty of the offence of robbery. In this connection Shri Sinha has referred to the decision of Datar Singh Vs. The State of Punjab, .

Undoubtedly, evidence of P.W. 5 Shyamdeo Singh is that P.W. 3 Raghvendra, could not identify appellant Ram Baran Chaudhary at the test identification parade. T.I. chart, Ext 3/1, also shows that the informant could not identify appellant Ram Baran Chaudhary. Thus evidence of P.W. 5 and Ext. 3/1 contradicts P.W. 3 Raghvendra. In these circumstances, I am of the opinion that appellant Ram Baran Chaudhary cannot reasonably and safely be held guilty of the offence of robbery and he is entitled to acquittal.

But, in my view, it would not be reasonable to reject the testimony of P.W. 3 with regard to identification of appelllants Md. Eqbal and Noor Islam in the fact and circumstance of the case, in the above case of Datar Singh (supra), P.W. Joginder Singh was found to be a witness "according to his own admissions, capable of making any statements at any time to suit his own purposes." He was found to have entangled himself in the web of lies". But evidence dots not show that P.W. 3 Raghvendra is such a witness. He appears to have made a mistake, had identified three robbers at the T.I. parade and in court also he has identified three but committed mistake with regard to one of them as discussed above. He has made no improvement in respect of their number.

True, P.W. 3 is the sole eye witness. But in ray opinion his evidence cannot reasonably be rejected as unreliable in the facts and circumstances of the case. His evidence shows that duration of robbery was 5 to 7 minutes. There was electric light in his office at the time of the occurrence. One of the robbers first demanded petrol and when the informant told him that there was no petrol he demanded mobil oil and he was supplied the same. One of the robbers made over a hundred rupees currency note to him. He was deprived of his wrist watch by one of them. The cash of the drawer was removed by robbers in his presence. Thus he dealt with the robbers aid had full opportunity to see their faces in electric light for about 5 to 7 minutes in his office, There is nothing on the record to show that the informant had any grudge or enmity with any of the appellants from before the occurrence. In, there circumstances, I am of the opinion that the informant can safely and reasonably be relied upon even though he is the sole eye-witness of the occurrence and identification There is no law that there must be corroboration in all cases. What the law requires is that the evidence to be acted upon must be satisfactory, cogent and reliable and in my view the evidence of P.W. 3, who is the most competent and natural witness, is of such character. It inspires necessary confidence. It is the quality and not the quantity of evidence that matters.

Sri Sinha bas further argued that Lai Mohan Rana, the coolie of the petrol pump who was present at the time of the occurrence as appears from the evidence of P.W. 3, has not been examined, and hence an inference adverse to the prosecution case should be drawn on account of his withholding. In this connection he has referred to the decision of Sarwan Singh and Others Vs. State of Punjab, . In that case, it has been held that the onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the Court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the evidence that matters.

True, in the instant case evidence of P.W. 3 shows that Lal Mohan Rana was present at the time of the robbery. Evidence of P.W. 5 Shyamdeo Singh also shows that he had identified one of the appellants namely Md. Eqbal at the T.I. Parade held by him. Thus Lal Mohan Rana appears to be a material witness. But there is nothing on the record to show that he has been withheld deliberately and purposely. The order sheet of the court below, on the other hand, shows that the prosecution made repeated efforts to procure the attendance of prosecution witnesses. As has been argued by Sri Lala Kailash Bihari Prasad, learned Counsel for the State, P.W. 3 Raghvendra, the victim of robbery and hence the most competent witness has unfolded the case of the prosecution fully and satisfactorily. Hence it cannot reasonably be said that examination of Lai Mohan Rana was necessary for unfolding the prosecution case.

Sri Sinha has further argued that there has been delay in holding the T.I. Parade and no satisfactory explanation has been given by the prosecution for the same. For this reason the T.I. Parade should be held to be invalid. In this connection he has referred to the decision of Antar Singh Vs. State of Madhya Pradesh, . In that case, Antar Singh was arrested by police on May 26, 1968. Test identification parade was held on November 17, 1968, before a Magistrate in respect of some of his co-accused who were alleged to be concerned in the same dacoity. But Antar Singh was not then put up for identification. The T.I. Parade in respect of nine accused including Antar Singh was subsequently held on December 26, 1968. One P.W. Diwakar claimed to have identified Antar Singh only at that parade. No explanation for such delay in holding the T.I. Parade was given by the prosecution. In such circumstances, their Lordships held that the identification of Antar Singh by P.W. Diwakar at the Parade and later at the trial could not safely be relied upon for the following reasons:

(1) His test identification was held about 12 months after the occurrence and seven months after his arrest. No explanation whatever, was furnished as to why he was not promptly put up for test identification, after his arrest.

(2) A test identification in respect of some of the accused was held on November 17, 1968 No explanation was given by the prosecution as to why Antar Singh was not put up for identification at that Parade along with his co-accused and why his test identification was further delayed by 22 days.

(3) Even at the test identification held before a Magistrate on December 26, 1968, Diwakar failed to identify eight co-accused who were allegedly concerned in the same dacoity. It was therefore highly possible that Diwakar picked out Kantar Singh at the test identification merely by chance.

(4) In his previous statements made during the course of investigation Diwakar had referred to only two dacoits whom he could identify and gave their description. Those two were identified by him as City Singh and Muni Lal accused. In his previous statements, Diwakar has not referred to any dacoity with a gun, and thus there was no reference to the particular role of Kantar Singh in the dacoity. The witness made a deliberate improvement on this point at the trial.

(5) In his previous statements, Diwakar did not mention about the burning lantern in his room. At the trial, he advisedly introduced a burning lantern inside the room in which he was sleeping.

In the instant case there is no infirmity similar to any of the infirmities found in Kantar Singh''s case. In the instant case, T.I. Parade was held about 5 months after the occurrence and arrest of the appellants. All the four accused were put up for identification by the informant at one and the same parade and he identified three of them whom he had seen at the time of robbery in electric light of his office where robbery took place, for a duration of 5 to 7 minutes. He had given description of all the four robbers in the F.I.R. (Ext. 2) lodged within 5 hours of the occurrence. He has clearly stated in the F.I.R. that the robbers while retreating switched off the light of his office. P.W. 3 Raghvendra has made no deliberate improvement in his evidence to implicate appellants Md. Eqbal and Noor Islam.

Sri Prasad has referred to the decision of Kedar Yadav v. State of Bihar as reported in 1987 BBCJ 565 in thus connection, it has been held in the decision that it is desirable that the identification parade must be done at the earliest without loss of time. Delay evokes not only various criticism but also cause loss of sanctity of the test. Time plays an important factor. Loss of time may cause fading out of the memory of the witnesses regarding clarity of the image of an accused seen in the occurrence. It is essential that delay should therefore, be avoided and test identification parade must be done at the earliest possible time. It is equally true that in some cases may retain the memory of the accused for long. Therefor, no rule of law can be laid down for it, as it all depends on the circumstances appearing in each case and the evidentiary value of it has to be examined and judged accordingly.

In the instant case, as discussed above, P.W. 3 Raghvendra had full opportunity for 5 to 7 minutes to identify the robbers in electric light standing near him in his office. He is an educated ''Munshi'' of a petrol Pump. In these circumstances he appears capable to retain the memory of the robbers for 5 months. I am, therefore, of the opinion that P.W. 3 can reasonably and safely be relied upon in the circumstances referred to above. In view of the above, I am of considered view that the charge u/s 392, I.P.C. against appellants Md. Eqbal and Noor Islam has been proved satisfactorily by cogent and reliable evidence beyond reasonable doubt. I, therefore, uphold the conviction of these two appellants As regards the sentence, in the facts and circumstances of the case, I am of the opinion that it calls for no interference. I, therefore, affirm and upheld the sentences Passed against appellants Md. Eqbal and Noor Islam.

Sri Sinha has informed that appellants Md. Eqbal and Noor Islam were arrested on 6.2.1974. The former remained in detention till 11.1.1983 while the latter was behind the bars till 16.11.1984. Thus they have already served their sentences. The authorities concerned are directed to act in accordance with the provisions of Section 428, C.P.C. without loss of time.

In the result, this appeal is allowed in respect of appellant Ram Baran Chaudhary. But it is dismissed so far as it relates to appellants Md. Eqbal and Noor Islam.