Case: Munni Singh  Vs. State Of Bihar

P.Ws 2 and 11. 7. We have already given a condensed version of Dhaniram Singh, P.W.11. Now according to the Hira Singh P.W.2, his house is 4-5 houses away from the house of the complainant and when he became awake on hearing the noise he went to see the occurrence taking a torch which kept lighting. According to him he hid himself behind a Bahaya tree and from where he could keep watching the activities of the dacoits whose faces he saw. As he says he could identify 8 dacoits. These were Munni Singh, Fekoo Singh Dadan Singh, Guput Singh and Behari Singh appellants as respectively armed. In addition there were Sukhari Singh (since deceased), Ram Naresh Singh and Kanhiya Singh who are no longer in the picture. After the departure of the dacoits he went close to the scene and found Khobari Singh to have been hit by gun shots and that his condition at that time was serious. Then he went in the company of P.W. 11 firstly towards the hospital and then to the police Station. According to this witness though he focussed the torch for 3 or 4 minutes before he went in hiding, the focus did not fall on the faces of the dacoits and after having gone in hiding he had not lit his torch. Yet he claims that he had identified the dacoits in the torch light. He is also certain that no dacoit had muffled his face. The appellants, according to him, had painted their faces but were not in a position to conceal their identity. He admitted that 3 or 4 day prior to the incident, a Panchayat had been convened in which Sukhari Singh was asked to surrender the Tank but he said he would if Khobari Singh demolishes and surrenders the house built on the bank of the Tank first. And further that when the Panchayat told Sukhari Singh that the house having been there for a long time, could not be demolished and even Khobari Singh was not agreeable to do so, all were angry with the accused persons on account of the Tank. 8. So far as Dhaniram Singh, P.W.11 is concerned, he too admits about the convening of the Panchayat 3 or 4 days earlier on which account Sukhari Singh had nursed an angry feeling due to the happenings in the Panchayat. With regard to the actual occurrence, P.W. 11 says that when the first shot aimed at him had not hit him, and the second shot had been fired at his uncle, he then ran 25-30 steps and hid himself in the field of the wheat crop and while running he heard the firing of the third shot. At that juncture he claimed to have kept lighting his torch now and then from the place of his hiding to see what was happening. The point which rises for consideration is whether P.Ws2 and 11 could individually, with the aid of their respective torches, identify the dacoits which were 25-30 in number and would the dacoits let them be identified by letting them switch on their torches off and on as claimed ? Would these two witnesses not have attracted attention of the dacoits to be taken care of in priority in their place of hiding ? It seems to us that seeing the formidable force of the dacoits and their number these two P.Ws. would have been so nonpulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits. These two witnesses do not claim that they could identify the dacoits by means other than their torches. This part of the story of the prosecution obviously does not inspire confidence. It is also worthy of notice that P.W.11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W.1 Bishwanath Chaubey. It is difficult in this situation to believe P.W. 11 that he could in a split second have such a perception so as to identify all the five appellants and some others, It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close. So identity of the dacoits was not possible by P.W.11 Moreover it is understandable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25-30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification. This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally paractised. Thus in the facts and circumstances of the case, we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W.11 to assume that the appellants were responsible for the dacoity committed in his house and for Hira Singh P.W. 2, to entertain that belief in a sweep.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]seems to us that seeing the formidable force of the dacoits and their number these two P.Ws. would have been so nonpulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits. These two witnesses do not claim that they could identify the dacoits by means other than their torches. This part of the story of the prosecution obviously does not inspire confidence. It is also worthy of notice that P.W.11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W.1 Bishwanath Chaubey. It is difficult in this situation to believe P.W. 11 that he could in a split second have such a perception so as to identify all the five appellants and some others, It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close. So identity of the dacoits was not possible by P.W.11 Moreover it is understandable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25-30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification. This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally paractised. Thus in the facts and circumstances of the case, we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W.11 to assume that the appellants were responsible for the dacoity committed in his house and for Hira Singh P.W. 2, to entertain that belief in a sweep.