Lakshmi Narain, J.C.
1. This is an appeal on behalf of Jamser All, Sum] Mia and Abdul Khaleque from their conviction and sentence for 3 years, 24 years and 3 months respectively under Section 395, I. P. C., passed by the Sessions Judge, Tripura in his Court's Sessions Trial No. 18 of 1953. The other 4 accused persons who were sent for trial along with them have been acquitted.
2. It is alleged that the above appellants along with 11 or 12 others committed dacoity in the house of Aptar Ali P. W. 1 on the night between 11th and 12th March, 1953 corresponding to the 28th Falgoon 1362 T. E. at Sonamura, by Inflicting injuries on the person of Aptar Ali and his wife Solema Bibi to extract information as to where they had kept their money etc. It was about 1 A. M. in the night that Aptar Ali awoke from sleep on account of some sound at the eastern door of his house. He found the inside and the outside of the house lighted up. He noticed 3 men inside the hut. Suruj Mia appellant caught him by the throat and asked him where he had kept his money. The reply was that he had no money at all. Upon this Jameer Ali inflicted a blow on Aptar Ali's head with a Dao and also said that he would cut his throat if he would not tell him where the money was. This was repeated by the other appellant Suruj Mia also. For fear of his life, Aptar Ali then informed them that whatever money he had, it would be found in the Chauki Box'.
It is also alleged that Hamid Ali (who is now absconding) another of the party also gave Aptar some blows with a ruler in his head. The Chauki Box was broken open, the money in currency notes, cash and ornaments in gold and silver taken. Khaleque appellant was asked by his brother Suruj Mia to get over the ceiling in search of some other property, who brought a suit-case containing clothes. The booty was thus collected and the three appellants along with Hamid All (now absconding) and other members decamped with it after putting off the light which they carried with them. During the course of dacoity, some members of it were loitering outside and others apart from the appellants were moving hither and thither inside the house. On the hues and cries of Aptar Ali and others in the house, some neighbours tried to come to the spot but were threatened not to proceed at the risk of their lives. After the dacoits went away they reached the spot along with many other villagers. They saw Aptar Ali etc., injured and bleeding. They were told on the spot at that time that Jamser, Suruj Mia, Khaleque and Hamid All (now absconding) were identified. The Chauki Box and the suit-case was found broken and the contents removed. The leaf of the door was also found unhinged on the ground. The occurrence was reported to the Police station next morning. The Police took the investigation immediately without any loss of time and eventually challaned the above appellants along with 4 others.
3. The learned Counsel for the appellants has nothing to say against the factum of dacoity having been committed on the night in question in the house of Aptar Ali P. W. 1; in fact he admits it. His argument is that the appellants had nothing to do with the occurrence and that they were not the members of that party. They have been made scope goats on account of their enmity with the complainant.
4. The learned Counsel for the appellants has urged four points during the course of his lengthy arguments viz.,
1. That identification by voice and talk is unreliable and is unsafe for conviction.
2. That the two persons Chand Mia and Sham Ghaji included in the calendar of prosecution witnesses by the Police were not produced and thus a fair conclusion can be drawn that their evidence would be unfavourable to the prosecution.
3. That the case is the outcome of enmity with the accused persons and
4. Nearly all the P. Ws. are related to each other.
5. I shall deal the last 3 points first, leaving the first one which is the main argument for the appellants to be taken afterwards.
6. Point No. 2 : These two persons Chand Mia and Sham Ghaji were not produced by the prosecution even in the committing proceedings. The learned Counsel for the appellants contends that if produced they would depose that the complainant Aptar Ali P. W. 1 did not mention anybody's, name to persons collected on the spot just after the occurrence as he could not recognize them. It is difficult to say that these two were material witnesses, as on that very point sufficient evidence had already been adduced. The prosecution could leave them out as unnecessary under the circumstances. If they were so important in view of the defence there was sufficient opportunity for producing them as defence witnesses. This the defence did not care. It was only on the 13th of Nov. 1953, when only one P. W. remained to be examined on behalf of the prosecution, that an application was preferred in the Sessions Court that these two witnesses should be called as court witnesses. According to Section 291, Cr. P. Code there is no right in the defence to have a witness brought before the court who was not on the defence list at all. In spite of that the learned Sessions Judge ordered as follows :
The summons cannot be sent to the Magistrate. The accused will make their own arrangement for service of the summons. The accused cannot be allowed to be absent on 14-11-53 as their statement under Section 342, Cr. P. C. have to be taken on that date.
This was not complied with and the two witnesses were not brought before the Court for their examination. It cannot be said therefore, that no opportunity was given to produce these two witnesses. Even it be taken for granted for argument's sake that the witnesses would depose that the complainant did not mention the name of the culprits soon after the occurrence, that would have little effect in view of the fact that not less than 5/6 P. Ws. have deposed otherwise. I don't think therefore that the production of these two witnesses could have changed the face of the case in view of other sufficient evidence adduced.
In a recent Supreme Court case reported in Abdul Gani v. State of M. P. : AIR1954SC31 , their Lordship have observed that
It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses.
7. Point No. 3 : That the case is the outcome of enmity with the accused. This allegation has been denied by the complainant in his cross-examination, and there is no other proof of it on the record. The onus was on the accused to prove such an allegation. When allegation of enmity between the parties is not proved, no independent corroboration is required. Even if enmity is proved, it cuts both ways. Although an enemy can be falsely implicated but at the same time, an enemy is prone to commit an offence against an enemy. Enmity of a witness with the accused does not necessarily show that he has given false evidence, and in the present case no enmity is proved at all.
8. Point No. 4 : That all the P. Ws. are related to each other. I don't think this contention should hold good. In a dacoity case, the fact that witnesses are related to the victim, is no reason to discard their evidence. It is only when a witness has enmity with the accused, there is a likelihood of his implicating the accused falsely. 'Mere relationship of P. Ws, is immaterial' Hayat Mohammad v. Emperor AIR 1934 Lah 158 (B), relied on. When a dacoity is committed in a house during the night time the ordinarily available evidence is that of the inmates of the house and of the neighbours; their evidence should not be viewed with suspicion only on the ground that they are related to each other.
9. Point No. 1 : The main argument on behalf of the appellants is that the 4 eye-witnesses in the case had in the committing court stated that they recognized the accused appellants by their voice and talk while during the course of trial they deposed that the appellants were identified by them by voice, talk and face even. This according to the learned Counsel, is an after thought and improvement made to get conviction on a sure ground. All those statements made in the committing Court have been brought on the trial record under Section 288, Cr. P. C., by the Sessions Judge to be treated as evidence in the case. We have, therefore, to examine the different statements in their true perspective. (After discussing the evidence and narrating the F. I. R. in extenso, His Lordship concluded : ) It is thus seen that there is no material discrepancy between the statements of these witnesses which they made in the committing court and afterwards during the course of trial in the Sessions court. Mere omission of the word 'appearance' in a solitary sentence in reply to the question of the defence Counsel as to how the witnesses happened to recognise the culprits, does not much matter when the other statement fully discloses the manner as to how they came to identify them.
10. The learned Counsel for the appellant has placed reliance on Bhagtu v. Emperor AIR 1928 Lah 925 (C) and Nga Aung Khin v. Emperor AIR 1937 Rang 407 (D).
11. I agree with the observations expressed in the above rulings that it is not safe to rely on the identification of a person by his voice alone and that such an experiment becomes risky when a culprit is identified in a pitch dark night. The above rulings don't apply to the present case which materially differ on facts and circumstances. In - AIR 1928 Lah 925 (C)', Where it was held that 'to recognise a person in a pitch dark night merely by modulations of his voice is very risky experiment' the prosecution witness also who claimed to have identified the culprits by their voice, failed to name them to the persons whom he met immediately after the occurrence; and so also in the case reported as AIR 1937 Rang 407 (D), where it has been held that 'as one is liable to make a mistake, it is never safe to rely on the identification of a person by his voice', the witness never said to the headman, with whom he talked, about and after the occurrence that he had recognised one of the culprits by voice.
12. In the present case, it was not dark, gas light was there in the outside of the house and inside it were two torch lights, in the hands of the two culprits, the appellants were fully known to the witnesses, they were identified by their voice and talk in a very close vicinity, face to face. Though they had white powder on their faces, the appearance could be quite discernible. A well acquainted person can be recognised without mistake by voice and face to face talk and more especially in flashes of torch light. I quite agree with finding of the learned Sessions Judge that the eye-witnesses in the case had sufficient opportunity to recognise the appellants accused persons under the circumstances of the case.
13. This appeal is, therefore, rejected. Abdul Khaleque who was let on bail by this Court's order dated 9-12-53 is to surrender to his bail bond to undergo his remaining sentence.