HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on:- 16.09.2019 Pronounced on:- 01.11.2019 Court No. -18 Case :- CRIMINAL APPEAL No. - 395 of 1987 Appellant :- [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY],[ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY], J.
Hon'ble [ENTITY], J.
(Delivered by Hon'ble [ENTITY], J.)
1. Heard Sri [ENTITY], learned counsel for the appellant and Ms. [ENTITY], learned Addl. G.A. for the State.
2. This is an appeal filed by the appellant, [ENTITY] against the judgment and order dated 14.04.1987 passed by learned VIIth Additional District & Sessions Judge, Sitapur, in [CASE NUMBER], whereby the appellant has been convicted for the offence under [SECTION] of [ACT] (hereinafter referred to as "[ACT]") and sentenced to undergo imprisonment for life. However, the co-accused, [ENTITY] has been acquitted.
3. The facts of the case as unfolded by the prosecution are that on 12.09.1985, the complainant, namely, [ENTITY] S/o [ENTITY] lodged a complaint that bhajan kirtan was going on till about 1:30 AM, thereafter, they slept and the other persons of the village went to their respective houses, in the meantime, about 10-12 bad elements armed with lathi, ballam, addhi (handmade pistol) and gun came and tried to open the door, when they did not open the door then one of the bad elements jumped the wall, came inside the house and opened the kundi and the other persons accompaning him also entered in the house, and gave beatings with danda to his mother and enquired about the valuable articles. When those bad elements were putting the looted articles on the door of the house, the gas was burning in the house; and on getting an occasion, he went to the southern window and made a noise, on this villagers, [ENTITY] S/o [ENTITY], [ENTITY] S/o [ENTITY], [ENTITY] S/o [ENTITY], [ENTITY] S/o [ENTITY], [ENTITY] S/o [ENTITY] and other persons came with lathi and torch and challenged the said persons, and on this the bad elements fired 3-4 times with a view to put them on fear, he (complainant) put fire on leaf of sugarcane and jhakar and the villagers fired from their licensed guns, on this the said bad elements along with looted articles started to go to western side, one bad element was apprehended by his father then the other bad elements fired from the gun by which injury was caused at chest and right hand of his father and some bullet shots (chharre) hit on the hip of his wife. The said bad elements were seen and identified by him, his family members and other villagers in the light of gas and fire. They can identify them if bad elements appeared before them, he and his wife can also identify the looted articles, which were taken by bad elements. The looted articles, which were taken by bad elements are as under:-
(i) Gas, which was burning in the house [ENTITY].
(ii) Old used batua, which is made of kaskut, weighted about 12 kg. to which [ENTITY] name is printed.
(iii) 2 boxes made of tin.
(iv) Rs.400/- cash.
(v) Three new sarees.
(vi) Two old plates made of kaskut.
(vii) Two old bilwa.
(viii) One lota and lotiya which made of kalayi and a white silver glass.
On the basis of said complaint, First Information Report (hereinafter referred to as "F.I.R."), [CASE NUMBER] was registered for the offence under [SECTION] and [SECTION] of [ACT] at Police Station- Pisawa, District- Sitapur at 08:25 AM on 12.09.1985.
4. On 12.09.1985, the injured, namely, [ENTITY], [ENTITY] W/o [ENTITY] and [ENTITY] W/o [ENTITY] were medically examined in District Hospital, Sitapur. The father of complainant, namely, [ENTITY] died, his body was inspected, inquest papers were prepared, on 14.09.1985 the dead body of the deceased, [ENTITY] was inspected, the delivery deed of gas and torch along with bloodstained soil, plain soil, empty cartridges, gun shots and ash was prepared, which were recovered from the spot. The site plan was prepared and statements of the witnesses were recorded. The accused, [ENTITY] was arrested on 31.10.1985 and [ENTITY] was arrested on 18.11.1985. Test identification parade (hereinafter referred to as "[ACT]") was got conducted. On completion of investigation, chargesheet for the offence under [SECTION] of [ACT] was filed against accused, [ENTITY] and [ENTITY].
5. After complying with the provisions of [SECTION] of the [ACT] (hereinafter referred to as "[ACT]"), the chargesheet was committed to learned trial court.
6. After hearing arguments on charge, learned trial court found a prima facie case to try the accused, [ENTITY] and [ENTITY] for the offence under [SECTION] of [ACT] and, accordingly, charge for the offence under [SECTION] of [ACT] was framed on 16.06.1986.
7. To bring home the guilt of the accused persons, the prosecution examined as many as five witnesses. PW-1, [ENTITY], who is the complainant, he has deposed his complaint as Ex. KA-1. He has also deposed that the injured were taken to hospital and got medically examined, his father was sent to Sitapur Hospital where he died. Thereafter, he came to know that the accused persons had been arrested and he went to jail to identify them. PW-2, [ENTITY], who is the neighbour and eye witness, he has proved the delivery deed of torch and gas as Ex. KA-2. He has also deposed that when accused persons were arrested, he went to the jail for identifying the accused persons, he identified both the accused persons as the persons who were identified by him in jail. PW-3, [ENTITY], who is also neighbour and witness to [ACT], he has deposed that he identified the accused persons and he knew them earlier, one of them was [ENTITY] and the other was [ENTITY]. PW-4, [ENTITY], who is the Investigating Officer has deposed about the various steps taken by him during investigation. He has proved the site plan as Ex. KA-3, seizure memo of plain soil and bloodstain soil as Ex. KA-4, seizure memo of empty cortages, tikli and bullet shots (chharre) as Ex. KA-5, seizurre memo of ash as Ex. KA-6 and delievery deed of gas and torch as Ex. KA- 7; he further deposed that on 14.09.1985, injury report was received and on 16.09.1985, postmortem report was received, on the basis of which, [SECTION] of [ACT] was added after that further investigation was held by [ENTITY] and the chargesheet was prepared by him and deposed the chargesheet as Ex. KA-8. PW-5, Constable [ENTITY] is the person who recorded F.I.R., he has deposed that he recored [CASE NUMBER] under [SECTION] and [SECTION] of [ACT] and made entry in the roznama at Serial No.10 at 08:05 A.M. and deposed copy of roznama as Ex. KA-9 and also deposed G.D. as Ex. KA-10.
8. On completion of the prosecution evidence, statement of the appellant/accused, [ENTITY] and [ENTITY] under [SECTION] of [ACT] was recorded and incriminating evidence was put to them to which the accused persons denied. The accused persons did not choose to lead any defence evidence.
9. After hearing the arguments and considering evidence on record learned trial court found the appellant guilty for the offence under [SECTION] of [ACT] and sentenced him vide judgment and order dated 14.04.1987. However, the co-accused, [ENTITY] was acquitted.
10. Being aggrieved by the impugned judgment and order dated 14.04.1987, the appellant has preferred the present criminal appeal.
SUBMISSION ON BEHALF OF THE PARTIES
11. Learned counsel for the appellant vehemently argued that learned trial court erred in convicting the appellant for the offence punishable under [SECTION] of [ACT] It was submitted that two persons were tried for the offence under [SECTION] of [ACT], when the trial court acquitted one of them, no conviction could have been recorded of the remaining accused i.e., the appellant for an offence punishable under [SECTION] of [ACT] It was also submitted that for recording of conviction of an accused under [SECTION] of [ACT], there must be five or more than five persons and, therefore, the trial court was wrong in invoking and applying [SECTION] of [ACT] According to learned counsel for the appellant, the judgment of conviction and order on sentence deserves to be set aside on this ground alone.
12. Learned counsel for the appellant further contended that the appellant was not identified by the prosecution witnesses as he was shown to the witnesses, namely, PW-1, [ENTITY], PW-2, [ENTITY] and PW-3, [ENTITY].
13. On the other hand, Ms. [ENTITY], learned Addl. G.A. for the State supported the judgment of conviction and order on sentence. She submitted that the co-accused, [ENTITY] has been acquitted but the appellant, [ENTITY] has been rightly convicted by the trial court after analyzing the entire evidence. Learned Addl. G.A. for the State submitted that the prosecution has proved the guilt of the appellant by examining PW-1, complainant, [ENTITY], PW-2, [ENTITY] and PW-3, [ENTITY].
14. We have given our anxious thought to the submissions advanced by learned counsel for the appellant and learned Addl. G.A. for the State and also carefully perused the material available on record.
15. Before proceeding to examine the culpability of the appellant before us, in the conspectus of the facts and findings recorded herein above, it would be worthwhile to consider the relevant provisions of [SECTION], [SECTION] and [SECTION] of [ACT], thus:
"[SECTION]. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
[SECTION]. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
[SECTION]. Murder. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
Fouthly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:
First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2. Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3. Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
16. [SECTION] of the [ACT] deals with offenses against property. [SECTION] deal with theft. [SECTION] concern offences of extortion. [SECTION] deal with robbery and dacoity. [SECTION] defines dacoity as:
391. Dacoity. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
17. [SECTION] of the [ACT] provides punishment for dacoity. [SECTION] prescribes penalty for an offence of dacoity with murder. The same reads thus;
[SECTION]. Dacoity with murder. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, everyone of those persons shall be punished with death, or [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
18. From a conjoint reading of [SECTION] and [SECTION] of [ACT], it is manifestly clear that the essential prerequisite of joint participation of five or more persons in the commission of the offence of dacoity and if in the course thereof anyone of them commits murder, all members of the assembly, would be guilty of dacoity with murder and would be liable to be punished as enjoin thereby. Thus, the pre-condition to perceive an offence of dacoity of murder is a participating assembly of five or more persons for commission of the offence. In the absence of such an assembly, no such offence is made out rendering the conviction, therefore, of any person in isolation for murder, even if proved, in permissible in law.
19. An immediate feature of [SECTION] of [ACT], which strikes one at first reading thereof, is that it is a self contain provision. In other words, contributory liability, thereunder, does not depend, in order to stand erect, on the crutches of any other provision. The provision creates vicarious liability sans mens rea, and is, to that extent, sui generis in nature. [SECTION] of [ACT], in its plain terms applies to every situation in which five or more persons commit dacoity and, in the course of the commission of such dacoity, anyone of the said persons, commits murder. All five persons, thereby, become liable, by statutory prescription, to the offence of "dacoity with murder", and expose themselves to the punishment stipulated in the said provision.
20. The three essential ingredients for invoking [SECTION] of [ACT] are that (i) one of the persons must commit murder, i.e., his act must amount to "murder" within the meaning of [SECTION] of [ACT], (ii) the said person must be one of the five or more persons who have joined together to commit dacoity, and (iii) the murder must be committed in the course of commission of such dacoity.
21. If these conditions are fulfilled, then [SECTION] of [ACT] would kick in and blight all the other persons, involved in the act of dacoity, even if one of them was even aware that murder was about to be committed. In other words, so far as the remaining persons are concerned, all the prosecution is require to prove, in order for [SECTION] of the [ACT] to apply, is their intention to commit dacoity. Neither intention, nor knowledge, that murder would be committed in the course of the commission of such dacoity, is required to be proved to exist in the contemplation of any of the said other persons. All persons must, therefore, possess the mens rea, therefore, may be attributable only to one of the said persons. They would all nevertheless, be exposed to the rigour of [SECTION] of the [ACT] The provision is, therefore, sui generis, in that it seeks to hold persons liable for an offence never even intended by them.
22. Thus, [SECTION] and [SECTION] of the [ACT] are mutually incompatible. [SECTION] of the [ACT], by its very title, covers "acts done by other persons in furtherance of common intention". It proceeds to refer expressly to "a criminal act done by other persons in furtherance of the common intention of all". In such a situation, each of the persons is made liable by the said persons "for that act". In other words, if, under [SECTION] of the [ACT] more than one person are tried to be mulcted with the offence of having committed "dacoity with murder" it would have to be shown that the act of "dacoity with murder" is done by all the persons and that all the persons had a common intention to commit dacoity with murder. The possibility of their having to commit murder, in the course of committing dacoity must, therefore, be shown to have been in the contemplation of all the said persons. In such a situation, [SECTION] of the [ACT] would make each of such persons liable for committing dacoity with murder.
23. The clear distinction between [SECTION] and [SECTION] of the [ACT] is, therefore, that while [SECTION] of the [ACT] makes all persons liable for the offence of dacoity with murder even though murder is actually committed only by one of the said "dacoits", and may not even have been in the contemplation, much less knowledge, of any of the others, [SECTION] of the [ACT] renders the persons liable for any offence only if all the persons shared a common intention to commit the offence of dacoity with murder, and the offence was committed by all of them together.
24. Therefore, [SECTION] of the [ACT] could never apply to any of the persons to whom the intention to commit murder could not be attributed; consequently, such an accused could never be committed under [SECTION] of the [ACT] In this regard reliance with advantage may be made to the judgment in the case of '[PRECEDENT]. In the said case it was held:
"10. To apply [SECTION] [ACT] apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, [SECTION] will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, [SECTION] cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."
25. In the case of '[PRECEDENT], the appellant was convicted for an offence punishable under [SECTION] of the [ACT] and sentenced to rigorous imprisonment for seven years. The F.I.R. was registered against nine persons. The trial court, however, acquitted five persons and convicted four accused persons. On appeal, the High Court acquitted three persons out of said four persons and convicted one of the accused, who filed an appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that conviction for an offence of dacoity of less than five persons is not sustainable. It was also held that before an offence under [SECTION] of the [ACT] can be made out there must be an assembly of five or more persons. On the findings of trial court and the High Court, it was manifest that only person was left, who could not be convicted for an offence under [SECTION] of the [ACT]
26. In the case of '[PRECEDENT], the F.I.R. was lodged by the informant, [ENTITY]. The case of prosecution was that 15-16 persons entered in the house of complainant and looted the property. All the accused persons were charged for the offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] The trial court acquitted one of the accused. In an appeal, the High Court of Allahabad acquitted some other accused persons but convicted three accused persons. In appeal before the Hon'ble Supreme Court it was contended that as the High Court found that only three persons had participated in the occurrence, there was an error in convicting them for dacoity, since the offence of dacoity could not be committed by less than five persons. The Hon'ble Supreme Court, however, negatived the contention and observed as follows:-
"6. The last contention advanced on behalf of the appellants is that as the High Court found that only three persons had participated in the occurrence it was an error to convict them of dacoity, because the offence of dacoity cannot be committed by less than five persons. In support of this submission counsel relies on the decision in [ENTITY] v. State of Uttar Pradesh [AIR 1956 SC 441 : 1936 Cri LJ 822] . We are unable to accept this submission. In [ENTITY] case six known persons were charged with dacoity and as the High Court acquitted three out of the six, it was held by this Court that the remaining three could not have been convicted for dacoity. The charge in the instant case is that apart from the named seven or eight persons, there were five or six others who had taken part in the commission of the dacoity. The circumstance therefore that all, except the three accused, have been acquitted by the High Court will not militate against the conviction of those three for dacoity. It is important that it was at no time disputed that more than 13 or 14 persons had taken part in the robbery. The High Court acquitted a large number of the accused because their identity could not be established. The High Court, however, did not find that the group which committed robbery in the house of [ENTITY] consisted of less than five persons."
27. Similarly [SECTION] of the [ACT] provides for common assembly. The Hon'ble Supreme Court considered the provisions of [SECTION] of the [ACT] in the case of '[PRECEDENT]. In the said case, it was held that if the prosecution failed to establish that the appellants were five or more, [SECTION] of the [ACT] cannot be invoked. But the Hon'ble Supreme Court held that it is not essential that five persons must always be convicted for invocation of the said provision. Where it is possible to conclude that though five or more persons were "unquestionably" at the place of offence and the identity of one or more persons was in doubt, conviction of less than five persons with the aid of [SECTION] of the [ACT] would be legal and lawful. In the said case, it was observed as under:-
"19. Before [SECTION] can be called in aid, the court must find with certainty that there were at least five persons sharing the common object. A finding that three of them "may or may not have been there" betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation.
20. This is not to say that five persons must always be convicted before [SECTION] can be applied. There are cases and cases. It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a conviction of the rest with the aid of [SECTION] would be good. But if that is the conclusion it behoves a court, particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions."
28. The aforesaid judgment in [PRECEDENT]'s case (supra) was referred in the case of '[PRECEDENT]. In the said case, two of the five persons were tried for the offences punishable under [SECTION] and [SECTION] of the [ACT] were convicted. In the charge, said five accused persons and none others were mentioned as forming unlawful assembly and the evidence led was confined to them. The question was whether two persons could be convicted by applying [SECTION] of the [ACT] It was stated:
"9 Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then [SECTION] cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under [SECTION] because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under [SECTION] because on the evidence the Court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five "
29. The aforesaid judgment in [PRECEDENT]'s case (supra) was considered in the case of '[PRECEDENT], and it was held:
"7 It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court-witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence "
30. In another case '[PRECEDENT], the Hon'ble Supreme Court observed as under:
"15 The decisions of this court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is the effect that the alleged unlawful assembly consists of five or more named persons and no others, and there is no question of any participation by other persons not identified or identifiable it is not open to the court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof. Where, however, the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not identified, it, would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of [SECTION] [ACT] provided it comes to the conclusion that five or more persons participated in the incident "
31. In '[PRECEDENT], the appellant along with four other persons were charged for the offence under [SECTION] [SECTION] of the [ACT] Only the appellant was convicted for the offence under [SECTION] of the [ACT] and the other accused persons were acquitted. There was no indication either in the F.I.R. or in the evidence that any other person unnamed or unidentified other than the five persons charged, to have participated in the crime. The conviction was challenged by the appellant. The Hon'ble Supreme Court while setting aside the conviction for an offence punishable under [SECTION] of the [ACT] held that if in a given case, the charge discloses only the named persons as co-accused and prosecution witnesses confine their testimony to them, even then it would permissible to come to a conclusion that others, named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there is other evidence to lead to that conclusion, but not otherwise.
32. In yet another decision, the Hon'ble Supreme Court in the case of '[PRECEDENT], it was stated:
"6. Coming to the question whether [SECTION] has application when presence of more than five persons is established, but only four are identified, [SECTION] does not require that all the five persons must be identified. What is required to be established is the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of [SECTION] [ACT]."
33. Thus, it is clear that for recording conviction for an offence of dacoity, there must be five or more persons. In the absence of such finding, an accused cannot be convicted for an offence of dacoity. However, it may be that there are five or more persons and the factum of five or more persons is either not disputed or is established, but the Court may not be able to record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal, returning a finding that their identity is not established. In such a case, the conviction of less than five persons can be maintained. But in the absence of such finding, less than five persons cannot be convicted for an offence of dacoity.
[SECTION]. It is settled rule of law that the [ACT] is not a substantive evidence. The substantive evidence is the evidence of identification in Court. The same is clear from the provisions of [SECTION] of the [ACT] as well as catena of decisions. The facts, which establish the identity of the accused persons, are relevant under [SECTION] of the [ACT]. Generally, the substantive evidence of a witness is the statement made in the Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of [ACT] is to test and strengthen the trustworthiness of the said evidence. The [ACT] belongs to the stage of investigation and there is no provision in the [ACT] which obliges the investigating agency to hold, or confers a right upon the accused to claim a [ACT] They do not constitute evidence and these parades are governed by [SECTION] of the [ACT] Failure to hold a [ACT] would not make in admissible the evidence of identification in Court. However, the weight to be attached to such identification should be a matter of for the Courts depending upon the facts, in appropriate cases it may accept the evidence of identification even without insisting on corroboration. Thus, it is considered a safe rule of prudence to generally look for corroboration of the testimony of witnesses in Court as to the identity of the accused who are not known to them, in the form of earlier test identification proceeding. The said rule, however, is subject to the exceptions, when the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.
35. The purpose of [ACT] is to have corroboration of evidence of the witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by [ACT] would not be in any way material. The purpose of [ACT] is succinctly stated by the Hon'ble Supreme Court in the case of '[PRECEDENT] as follows:
"22 We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence "
36. In '[PRECEDENT], it was found that the appellant and one [ENTITY] were absent at the time of roll-call and when they were arrested on the night of 16.12.1971 their rifles smelt of fresh gunpowder and that the empty cartridges case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. In the said circumstances, the Hon'ble Supreme Court held:
"4 In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the investigating officer ought to have held an identification parade and that the failure of [ENTITY] to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in [PRECEDENT] absence of test identification is not necessarily fatal. The fact that [ENTITY] did not disclose the names of the two accused to the villagers only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of [ENTITY] alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant "
37. In another case '[PRECEDENT], the Hon'ble Supreme Court observed as under:
"16 The conduct of an identification parade belongs to the realm, and is part of the investigation. The evidence of test identification is admissible under [SECTION] of the [ACT]. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test.
17. The one area of criminal evidence susceptible of miscarriage of criminal justice is the error in the identification of the criminal. Indeed Prof. [ENTITY]'s Convicting the Innocent records several criminal convictions in which the accused was subsequently proved innocent. The major source of the error is to be found in the identification of the accused by the victim of the crime. Indeed the learned author refers to the source of mistaken identification thus:
"The emotional balance of the victim or eyewitness is so disturbed by his extraordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused."
18. [ENTITY] in The Proof of Guilt (Hamlyn Lectures) refers to the errors of recognition breeding an invincible assurance in the witnesses, highly deceptive for those who are not forewarned of such possibilities, and excerpts [ENTITY]'s results of a continental investigation, thus:
"There is no difference from the subjective point of view, between true and false recognition, so far as their intrinsic qualities are concerned, and there are no objective signs to distinguish one from the other. The witness's certainty may not be immediate, without this delay being necessarily a sign of error. Nevertheless, error is more frequent when recognition comes some time after seeing
The act of recognition is very open to suggestion in all its forms
Resemblance is a matter of relativity. For a white person, all negroes are like each other, and conversely. A person can much better distinguish those of his own age and condition than those of different ages and condition. Uniform is a cause of fallacious resemblance, above all for those who do not wear it.
(emphasis supplied)"
19. The evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary and substantive evidence as to identify. In [PRECEDENT] this Court observed: (SCC p. 777, para 5) " the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding.
38. Thus, it is clear that much evidentiary value cannot be attached to the identification of the accused in the Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the particular person concerned, if the identification is made for the first time in Court.
39. Learned Addl. G.A. for the State has relied upon judgment in the case of '[PRECEDENT], we have gone through the said judgment and find that the proposition law laid down in the said judgment is undisputed.
40. In the instant case, the appellant, [ENTITY] was not arrested at the spot. The appellant, [ENTITY] was arrested in a [CASE NUMBER] under [SECTION] of [ACT] and Case Crime No.[SECTION] under [SECTION] of the [ACT], the appellant was interrogated and he made a disclosure statement on the basis of which he was arrested in the present case on 31.10.1985. The [ACT] was conducted in jail on 10.01.1986 by S.E. Magistrate in which the witnesses, namely, [ENTITY] (PW-1), [ENTITY] (PW-2) and [ENTITY] (PW-3) and [ENTITY] S/o [ENTITY] identified the appellant/accused. As far as the [ACT] is concerned, it is relevant to note that the appellant, [ENTITY] contended that he has been falsely implicated and he was identified by the witnesses as he was shown to the witnesses at the police station before holding [ACT]
41. PW-1, [ENTITY] deposed that he identified the appellant in jail, he did not know the appellant prior to the incident. PW-2, [ENTITY] also deposed that he had identified the accused persons in jail and for the first time he saw the appellant at the time of incident. PW-3, [ENTITY] has deposed that he had gone to jail to identify the accused persons, he had identified the accused persons because he knew them before the [ACT] and their names are [ENTITY] and [ENTITY].
42. It is pertinent to mention here that [ENTITY] S/o [ENTITY] who had identified the appellant in the [ACT] proceeding in jail has not been examined by the prosecution.
43. It is unbelievable that at about 1:30 AM in the night when it was pitched dark, the witnesses who were frightened could have seen actual faces of the accused persons just by the light of gas cylinder and leaf of sugarcane. Further, there were 10-12 dacoits in number, armed with lathi and gun, who had entered in the house after jumping the wall, it cannot be believed that the witnesses standing at a distance in a feeble light would have been able to identify the dacoits/accused persons.
44. Though PW-1, [ENTITY] and PW-2, [ENTITY] have denied the defence plea, in view of the fact that the incident occurred at about 1:30 AM (in the night) on 12.09.1985 in the pitch of darkness, the identification of the appellant by the witnesses has to be viewed with caution and the Court has to look for corroboration strengthening the identification.
45. As discussed above, [ACT] was conducted in jail on 10.01.1986 by S.E Magistrate. However, the [ACT] is not a substantive evidence and conviction cannot be based solely on the identification by the witnesses in the [ACT] The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles, which are the subject matter of dacoity and the alleged weapons used in the crime.
46. Moreover, the [ACT] has not been proved by the prosecution. The S.E. Magistrate, who conducted [ACT] has not been examined. Even the Investigating Officer, [ENTITY] while appearing as PW-4 has not deposed that [ACT] was got conducted nor he proved the [ACT] proceeding.
47. The weapon of offence alleged to have been used in the commission of offence has not been recovered. No article which was subject matter of dacoity has been recovered. The co-accused, [ENTITY] has been acquitted by the trial court. There is no other incriminating evidence to connect the appellant with the offence.
48. At this juncture, it is pertinent to mention here that the charge against the appellant, [ENTITY], and co-accused [ENTITY] was framed on 16.06.1986 by learned Additional Sessions Judge, Sitapur wherein it is stated that on the intervening night between 11/12th September 1985 at about 1:30 AM, they committed dacoity at the house of [ENTITY] and in so conjointly committing dacoity one of them or more committed the murder of [ENTITY]. The charge discloses only the named persons i.e., [ENTITY] and [ENTITY] as accused and the prosecution witnesses confine their testimonies to them, even then it would not be permissible to come to the conclusion that others, named or unnamed, besides the two accused named in the charge or the evidence of prosecution witnesses, acted conjointly with one of the charged accused if there is no other evidence to lead to that conclusion.
49. The trial court did not record a finding that there were more than five persons who committed dacoity and out of them two accused could be identified but the remaining accused persons could not be identified.
50. As discussed above, the prosecution has miserably failed to either proof the participation of five or more persons in the commission of the offence or establish their identity.
51. In that view of the matter having regard to the law authoritatively laid down in the aforesaid judgments and in the absence of singular charge under [SECTION] of the [ACT] against the appellant and co-accused [ENTITY] (who has been acquitted by trial court) sans five or more persons, and failure to establish identity of the appellant, [ENTITY] and the charge not disclosing other persons, we are of the considered opinion that the conviction for the offence of dacoity with murder punishable under [SECTION] of the [ACT], in the facts and circumstances of the case cannot be sustained in the eyes of law.
52. In our considered view, the conviction and sentence of the appellant being repugnant to letter and spirit of [SECTION] and [SECTION] of the [ACT], the same is liable to be set aside.
53. In view of the aforesaid facts and circumstances of the case, the appeal is allowed and the impugned judgment and order dated 14.04.1987 passed by VIIth Additional District & Sessions Judge, Sitapur are hereby set aside. The appellant is acquitted of the charge leveled against him.
54. Lower court record along with copy of judgment be sent back forthwith.
([ENTITY]) ([ENTITY]) Judge Judge Order Date :- 01st Nov., 2019 cks/-