Case: Bali Ahir and Others Vs. State of Bihar

the head.4. From the first information report it appears that the dacoits were unknown persons. Therefore, two identification parades were held, one on May 8, 1968 by Shri Yogendra Nath Jha, PW 7, and the other on May 24, 1968 by Shri S. M. Mukherjee, PW 6. In the first identification parade constable Moinuddin Khan, PW 3, identified Ramadhar Ahir, appellant 3. In the second identification parade Harihar Prasad Singh, PW 2, identified Bali Ahir and Chain Ahir, appellants 1 and 2 respectively. Khaderan Prasad Singh, PW 4, identified Bali Ahir, Chain Ahir and Ramadhar Ahir, appellants 1, 2 and 3 respectively as the persons who were seen running away from the place of occurrence. Moinuddin Khan, PW 3, identified Bali Ahir and Chain Ahir, appellants 1 and 2. Prosecution witnesses 2, 3 and 4 identified the appellants in court also.5. The trial court relying on the evidence of identification by the aforesaid witnesses convicted the appellants under Section 395, IPC and sentenced them to rigorous imprisonment for eight years. It, however, gave benefit of doubt to the remaining three accused and acquitted them.6. On appeal by the appellants the High Court set aside the conviction and sentence of the appellants under Section 395, IPC and instead convicted them under Section 394, IPC and sentenced them to rigorous imprisonment for four years. The appellants have now come to challenge the judgment of the High Court by filing the present appeal by special leave, as stated earlier.7. The conviction of the appellants is based upon evidence of identification. It may be pointed out at the very outset that except Harihar Prasad Singh, PW 2, the other witnesses, namely Moinuddin Khan, PW 3, Khaderan Prasad Singh, PW 4, Ganesh Singh, PW 8, and Ganga Singh, PW 9 had seen the accused from behind only when they were running away from the scene of occurrence. They chased the dacoits for some distance but could not succeed in arresting any of them.8. So far as Harihar Prasad Singh, PW 2, is concerned he appears to have investigated a case against Bali Ahir of village Bajruhatola prior to the occurrence. He clearly admitted so in the cross-examination :I remember that I had gone to Bajruhatola for investigation prior to the occurrence. I do not remember how many times I had gone. I had gone to Bajruhatola in connection with the case of Bali Ahir. It relates to an affair within a year from the occurrence. Bali Ahir also was an accused in a theft case and I had arrested him at Tetaria. It was I who had sent him up. I had issued a forwarding letter in that connection.He, therefore, fully knew Bali Ahir of Bajruhatola and there is no question of identification by him when he personally knew Bali Ahir. Bajruhatola is about a mile from the police quarters and Udwantnagar is about half a mile from the police quarters. Bali Ahir is a resident of Bajruhatola, Police Station Udwantnagar. Ramadhar is also a resident of village Bajruhatola, Police Station Udwantnagar. Chain Ahir is a resident of Udwantnagar Tola, Police Station Udwantnagar. So all the three appellants are residents of the vicinity within one or one-half of a mile from the Police quarters and, therefore, the possibility of seeing and knowing them by the witnesses who were either constables or officers of the police station, Udwantnagar, cannot be weeded out.9. There is yet another circumstance which must be taken into consideration. Ganesh Singh, PW 8, in his cross-examination said that accused Dowarika (since acquitted) and Ramadhar were brought to Arrah Mofussil Police Station in the course of investigation. He took them under his charge and he had forwarded and sent them up from the said police station. He had forwarded both of them through his staff or through the staff of the mofussil police station. He also admitted that for requisitioning staff from any other place requisition is made in writing; verbal requisition is also made. Nothing is, however, recorded in his diary about the requisition. No staff of mofussil police station had been made a witness. In his diary also there is no mention of such a witness who had taken charge of both the accused from the mofussil police station. Therefore, the possibility of the constable witnesses taking them from the mofussil police station to the Udwantnagar Police Station cannot be overruled.10. Witnesses other than Harihar Prasad Singh, PW 2, as pointed out earlier, had seen the dacoits only from behind and that too from a distance of more than fifty yards. It is very difficult to recognise persons at night from behind specially when they are running. Even if they turn their faces towards back for a second or so it would be very difficulty in the night to recognise the face within that short gap.11. Even the identification parade appears to be suspicious, as will be evident from the deposition of Shri Yogendra Nath Jha, Assistant Settlement Officer (Consolidation) who conducted the identification parade on May 8, 1968. He stated that constable Moinuddin Khan at the time of identification of the suspects had twice moved forward and backward seeing them. Shri S. M. Mukherjee, PW 6 in his deposition said that he did not mark if the witnesses were at the jail gate or not at the time when he arrived at the jail. This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that PW 2, had known Bali Ahir from before yet he did not name him in the first information report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself.

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

Explanation:
1[ds]8. So far as Harihar Prasad Singh, PW 2, is concerned he appears to have investigated a case against Bali Ahir of village Bajruhatola prior to the occurrence.There is yet another circumstance which must be taken into consideration. Ganesh Singh, PW 8, in hissaid that accused Dowarika (since acquitted) and Ramadhar were brought to Arrah Mofussil Police Station in the course of investigation. He took them under his charge and he had forwarded and sent them up from the said police station. He had forwarded both of them through his staff or through the staff of the mofussil police station. He also admitted that for requisitioning staff from any other place requisition is made in writing; verbal requisition is also made. Nothing is, however, recorded in his diary about the requisition. No staff of mofussil police station had been made a witness. In his diary also there is no mention of such a witness who had taken charge of both the accused from the mofussil police station. Therefore, the possibility of the constable witnesses taking them from the mofussil police station to the Udwantnagar Police Station cannot be overruled.10. Witnesses other than Harihar Prasad Singh, PW 2, as pointed out earlier, had seen the dacoits only from behind and that too from a distance of more than fifty yards. It is very difficult to recognise persons at night from behind specially when they are running. Even if they turn their faces towards back for a second or so it would be very difficulty in the night to recognise the face within that short gap.11. Even the identification parade appears to be suspicious, as will be evident from the deposition of Shri Yogendra Nath Jha, Assistant Settlement Officer (Consolidation) who conducted the identification parade on May 8, 1968. He stated that constable Moinuddin Khan at the time of identification of the suspects had twice moved forward and backward seeing them. Shri S. M. Mukherjee, PW 6 in his deposition said that he did not mark if the witnesses were at the jail gate or not at the time when he arrived at the jail. This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that PW 2, had known Bali Ahir from before yet he did not name him in the first information report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself.