State of U.P. vs Ram Sahai

R.C. Lahoti and P. Venkatarama Reddi, JJ.—The accused Respondent was found guilty of an offence punishable u/s 396, Indian Penal Code and sentenced to imprisonment for life by the Additional Sessions Judge, Hamirpur, vide the judgment dated 29th June, 1978. In an appeal preferred by the accused, the Division Bench of the High Court of Allahabad vide judgment dated 28th January, 1992 set aside the conviction and acquitted the Respondent. The aggrieved State has filed this appeal by special leave.

It is not in controversy that on August 8, 1976 at about 10.30 p.m. bus No. UTR 363, proceeding on Hamirpur-Rath road of Uttar Pradesh, was looted by six or seven miscreants. Between villages Panthia and Ujaari, the miscreants entered the bus. There were two constables travelling in the bus. One of the constables was shot dead in the bus and the other was seriously injured. There are three eye-witnesses, viz., P.W. 1, P.W. 3 and P.W. 5 who were travelling in the same bus. They claimed to have identified the miscreants in the light which was on in the bus. It is stated that the miscreants were also holding torches which they were flashing and the torchlight also enabled the identification of the miscreants. On 1st October, 1976, the accused-Respondent was arrested in connection with some other offence registered at the same police station. During the course of interrogation, he gave a clue of his involvement in this incident also. Thereafter, a test identification parade was arranged and conducted on 28th November, 1976 by Shri R. N. Mishra, Executive Magistrate-P.W. 4. The three witnesses, i.e., P.W. 1, P.W. 3 and P.W. 5, identified the accused-Respondent during the trial in the Court. The trial court believed the identification of the accused-Respondent and held that he had participated in the incident and was one of the miscreants. However, the High Court found the identification of the accused-Respondent by the three witnesses not reliable. The High Court was much impressed by the admission made by Shri R. N. Mishra, during cross-examination, that the witnesses, who had come to participate in the test identification parade, had stated before identifying the accused-Respondent that they had come to identify Ram Sahai. Therefrom, the High Court has drawn an inference that the name of the accused-Respondent was previously known to the witnesses which had an adverse affect on the value of the identification at the parade. This fact finds mention in the statements of the witnesses as recorded by the learned Executive Magistrate and also in the memo of test identification parade. Apart from this fact, the High Court also found P.W. 1 having admitted in cross-examination that at the test identification parade, he had wrongly identified two persons. Similarly, P.W. 3 had wrongly identified one person before identifying the accused-Respondent. So far as P.W. 5 is concerned, the High Court had found that he was a pocket witness of the police inasmuch as he had figured as witness of the police in a number of cases, to prove this fact a number of documents were brought on record and exhibited at the trial.

No part of property stolen in dacoity, has been recovered from the Respondent. Excepting the evidence of identification, there is no other evidence to show the involvement of the accused-Respondent in the incident of dacoity.

The High Court has assigned valid reasons for disbelieving the testimony of the three witnesses identifying the accused-Respondent. Inasmuch as the view taken by the High Court is one which could have been reasonably taken and is a possible view of the evidence adduced on behalf of the prosecution and further as no infirmity is pointed out in the reasoning adopted by the High Court, we do not think the present one to be a case fit for interference by us in exercise of our jurisdiction under Article 136 of the Constitution of India.

The appeal is dismissed. The finding of acquittal as recorded by the High Court is maintained.