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The Union Territory Vs. Moirangthem Khomei Singh and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantThe Union Territory
RespondentMoirangthem Khomei Singh and ors.
Excerpt:
.....time of the parade constitutes a dependable piece of evidence to establish the participation of khomei singh, thawan singh and birahari singh in the dacoity. but the purpose of test identification is to test that evidence and the safe rule is that the sworn 'testimony of witnesses ir court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration 1971 cri. there may be exception to this rule where .the court is satisfied that the evidence of a particular witness is such that it can safely rely on it without the precaution of an earlier identification proceeding. on page 314 of twelfth edition of wood-roffe and ameer ali's law of evidence it is stated that the evidence of even one good identifying witness may be treated as..........he arrested the accused w. thawan singh -and th. birahari singh on 1611-1967 and the accused m. khomei singh on the next day. the remaining two accused. s. bira sarrna and l. ibomacha singh, could be arrested only after report under section 173 criminal p.c. had been submitted to the court.4. an identification parade was held on 27-11-1967 by shri upendra singh, magistrate first class, imphal. in respect of the accused khomei singh, thawan singh and birahari singh. doctor sarkar correctly picked up those three accused while p.w. 5 mangkham kom could identify khomei singh alone. the three accused, it may be stated, had been paraded with another 24 persons. the other two accused, bira sarma and ibomacha singh, had earlier been specifically mentioned as the culprits by certain witnesses.....
Judgment:

R.S. Bindra, J.C.

1. This is a State appeal Under Section 417 Criminal P.C. against the judgment dated 6th November 1969 by which Shri P. N. Roy, Additional Sessions Judge. Manipur, acquitted the five respondents of the charge Under Section 395 read with Section 397 IPC

2. The prosecution story, succinctly put, is that late on the evening of 9-11-1967 when Pu.ia was being performed in the official quarter olDoctor S. 'P. Sarkar, Medical Officer in charge of Primary Health Centre, Sagolmang, in connection with the birth of a son to him, as many as 15 or 16 persons, clad in? olive green uniforms and carrying weapons including sten guns and daos, entered the quarter from its back side. Some of them stepped into the bed room of Doctor Sarkar where the latter was taking rest. The culprits asked Doctor Sarkar to be up on his feet and raise his hands, and he complied. The culprits then tied his hands, marched him outside the quarter, trained their sten guns at him, and demanded money and other valuables from him. Faced with that eerie situation, Doctor Sarkar told the culprits to take all that lay in his quarter. The culprits however insisted on Doctor Sarkar paying them Rs. 1,000/- beyond what they could lay their hands on. However, the Doctor exhibited his inability to pay Rs. 1000/- for he did not have that much cash with him. His inability to pay was perhaps taken for his unwillingness and so the culprits began to administer him cane beating. The culprits then ransacked the house and marched away with rich booty. It is part of the prosecution story that five petromax were burning in the house at the time of the occurrence and that their light was sufficient to permit identification of the culprits, who, it is said, remained in the quarter for about half an hour.

3. It was at 10-00 a. m. on 11-11-1967 that the report Ext. P/2 was lodged by Doctor Sarkar with the Police and on the basis thereof a case was registered by Th. Muhon Singh (P.W. 6) of Police Station Lamlai. He examined a number of eye-witnesses and prepared injury statements of those who out of them had been assaulted by the culprits. He arrested the accused W. Thawan Singh -and Th. Birahari Singh on 1611-1967 and the accused M. Khomei Singh on the next day. The remaining two accused. S. Bira Sarrna and L. Ibomacha Singh, could be arrested only after report Under Section 173 Criminal P.C. had been submitted to the Court.

4. An identification parade was held on 27-11-1967 by Shri Upendra Singh, Magistrate First Class, Imphal. in respect of the accused Khomei Singh, Thawan Singh and Birahari Singh. Doctor Sarkar correctly picked up those three accused while P.W. 5 Mangkham Kom could identify Khomei Singh alone. The three accused, it may be stated, had been paraded with another 24 persons. The other two accused, Bira Sarma and Ibomacha Singh, had earlier been specifically mentioned as the culprits by certain witnesses examined by the Police during the investigation.

5. All the five accused entered the plea of not guilty. Their defence was one of pure denial.

6. The prosecution examined 8 witnesses to establish the charge. The accused however led no defence.

7. The learned Sessions Judge acquitted the accused Khomei Singh, Thawan Singh and Birahari Singh primarily on the ground that the statement of Doctor Sarkar. who had identified all of them in the parade held on 27-11-1967, did not gather corroboration from any other evidence led by the prosecution and that in the absence of corroboration they could not be legally convicted on the basis' of Dr. Sarkar's testimony. The remaining two accused, Bira Sarma and Ibomacha Singh, were exonerated of the charge on the footing that P.W. 3 Ibobi Singh and P.W. 4 Ibochou Singh, who had specifically named them as dacoits, could not have made them out because they (the two culprits) must have, got mixed with the guests participating in the puja celebration, and that 'There was a chance that even though the persons who had assembled there in connection with the ceremony could also be included amongst the dacoits'.

8. Shri Munindrakumar Singh, the learned Assistant Government Advocate, seriously challenged the correctness of the approach of the trial Court to the case as a whole and the reasoning adopted by it in acquitting the accused. After examining the material on record in the light of arguments addressed at the bar, I feel satisfied that the learned trial Court had grievously erred in acquitting the five accused. None of the grounds on which the acquittal was founded is sustainable. '

9. Doctor Sarkar testified as P.W. 2 that he was performing the puja ceremony at about 10-00 p. m. on 9-11-1967 when about 15 persons burst into his quarter from the back side armed with sten guns and other dangerous weapons. A large number of guests were then present in the house and no less than five petromax were in use. Doctor Sarkar was firstly asked by some of the culprits to get upon his feet and to raise his hands. -His hands were thereafter bound down and- he was taken out of his quarter where he was asked under the threat of sten guns aimfed at him to pay Rs. 1,000/- to the culprits. When he exhibited his inability to pay that sum, he was given cane beating. Doctor Sarkar was examined by Doctor Gulap-chand Singh (P.W. 1) of Civil Hospital, Irnphal, on 10-11-1967 who found two contusions, measuring 4' x li' and 3i' x li'. on the back of the left thigh and left buttock, besides another two linear contusions, measuring 2i' x 1/8' and 2' x 1/8', respectively on the right wrist and the left wrist of Dr. Sarkar. We have the unchallenged statement of Doctor Sarkar that a larger number of articles were stolen from his house. Shri Benoy Singh, Leprcjsenting the accused, did not .ioin issue with the Government Advocate on the point that a daccity was committed in the hbuse ot Doctor Sarkar late on the evening of 9-11-1967. Therefore, I need not detail further evidence in support of the fact that a dacoity was committed at the official residence of Dr. Sarkar on the date and at the time mentioned by him.

10. The principal question that falls for determination in the appeal is whether all or any of the accused had participated in the crime. Doctor Sarkar affirmed at the trial that Khomei Singh, Thawan Singh and Birahari Singh were amongst the dacoits who broke into his house and that he had correctly identified all the three accused during the course of the parade held on 27-11-1967. Shri Upendra Singh, who conducted the parade, deposed as P.W. 8 that Doctor Sarkar had not committed any error in the matter of picking out of the three accused who had been set up in the parade along with 24 others. The statement of Doctor Sarkar at the trial therefore gathers corroboration from the identification done by him at the time of the parade. Section 9 of the Evidence Act provides, inter alia, that the facts which establish the identity of any person whose identity is relevant, are relevant in so far as they are necessary for that purpose. Therefore, the statement of Doctor Sarkar at -the trial corroborated by the identification done by him at the time of the parade constitutes a dependable piece of evidence to establish the participation of Khomei Singh, Thawan Singh and Birahari Singh in the dacoity. What value has to be attached to such evidence was the subject of decision in Vaikuntam Chandrappa v. State of Andhra Pradesh : AIR1960SC1340 . Wanchoo, J., as he then was, enunciated the following principles- while speaking for the Court:

It is also true that the substantive evidence is the statement in court; but the purpose of test identification is to test that evidence and the safe rule is that the sworn ' testimony of witnesses ir court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration 1971 Cri.L.J./lll XII which should be- in the form of an: earlier identification proceeding. There may be exception to this rule where . the court is satisfied that the evidence of a particular witness is such that it can safely rely on it without the precaution of an earlier identification proceeding.

It is apparent from this excerpt that the statement of a witness at the trial respecting the identity of an accused can be relied upon when corroborated by an earlier identification proceeding if the Court has no misgivings about its probity. Shri Benoy Singh was unable to cite any authority to support the view of the trial Court that the Court statement of a witness bearing on the identification of an accused must necessarily be corroborated aliunde before it can be acted upon. Nor the trial Court cited any authority in support of that proposition. On page 314 of Twelfth Edition of Wood-roffe and Ameer Ali's Law of Evidence it is stated that the evidence of even one good identifying witness may be treated as sufficient, but as a matter of precaution the Court acts on the rule of caution that.

the larger the number of witnesses correctly identifying an accused and lesser the number of errors made by them, the margin of error is reduced and the probability that the accused was . seen by the witnesses at the place of occurrence becomes greater.

The view expressed by the learned Commentator. I believe, is unexceptionable. The propositions that emerge from the Supreme Court decision in Vaikuntam Chandrappa's case : AIR1960SC1340 and the view expressed by Woodroffe and Ameer Ali are:—

(1) Generally speaking the statement made by an identifying witness in Court requires to be corroborated by an earlier identification done by him in test parade before it can be safely relied upon;

(2) In exceptional cases the Court statement of the witness can be acted upon without corroboration in the form, of an earlier identification proceeding, provided the Court feels satisfied that the evidence of the witness is of ' such quality that it can be depended upon; and

(3) That the evidence of even one good identifying witness may be treated as sufficient.

11. If, as observed by the Supreme Court in Vaikuntam Chandrappa's case : AIR1960SC1340 the Court statement of a witness uncorroborated by an earlier identification proceeding can be utilised in those exceptional cases where the Court statement is considered1 reliable, a fortiori the Court statement off a reliable identifying witness corroborated by an earlier identification proceeding can form the basis for conviction of an accused so identified. This is exactly the view expressed by Woodroffe and Ameer Ali. Consequently, it is not possible to subscribe to the view of the trial Court that 'On the basis of one identification, it cannot be held that the accused participated in the commission of the dacoity'

12. Having settled the, principles bearing on the value to be attached to the statement of an identifying witness when corroborated by an earlier identification proceeding, the point that arises for determination is whether the testimony of Dr. Sarkar is of such a quality that implicit reliance can be placed on it. After going through his statement twice over I have found the same quite credible, Shri Benoy Singh was unable to point out any blemish or infirmity respecting that statement. It can bear repetition to state that according to the averments of Dr Sarkar there were no less than five petromax burning in his quarter when the culprits stormed thereinto that some of the culprits went close to him and then brought him out of the quarter where they made a cash demand of Rs. 1,000/- on him. and that, all-told, the culprits remained inside the quarter for about half an hour. In the context of these well established facts it is not surprising that Dr. Sarkar was able to identify the three accused, Khomei Singh, Thawan Singh and Birahari Singh firstly at the identification parade and thereafter at the trial. However, despite the unblemished nature of the testimony of Dr. Sarkar I think it prudent that it alone should not form the basis of the conviction of either of the three accused identified by him as members of the party of dacoits. I now proceed to determine if there is any such corroborative evidence qua all or any of the said three accused.

13. The statement of Dr. Sarkar gathers corroboration respecting the accused Khomei Singh from the testimony of Ibochou Singh (P.W. 4) and Mang-kham Kom (P.W. 5), and in regard to the accused Thawan Singh from that of Ibochou Singh (P.W. 4). Ibochou Singh affirmed that he was present in the quarter of Dr. Sarkar at the time the dacoits entered it armed with dangerous weapons. He and others including Dr. Sarkar were occasioned injuries by the dacoits, and in addition he (Ibochou Singh) was kidnapped to the adjoining hills after his hands had been tied and face covered. With the light of the petromax and lanterns, the witness added, it was easy to make out the dacoits. He specifically named the accused Ibomacha Singh, Bira and Khomei who amongst others were seen in the quarter of Dr. Sarkar as members of the gang. He stated further that he saw the accused Thawan and Birahari at the hills to which he was kidnapped. During his cross-examination the witness' stated that all dacoits but one. were known to him. The witness denied in cross-examination that he had falsely implicated Khomei or that there- had been ever' a quarrel between his son and Khomei. A distinctive feature of the statement of this witness is that he was not cross-examined, on behalf of the accused other than Khomei. Therefore his statement, which is otherwise also very convincing, remains-unchallenged on the point that the accused (other Jh&n; Khomei) were members of the gang of dacoits.

14. The only flaw which Shrl Benoy Singh could point out respecting' he testimony of Ibochou Singh is that the name of accused Khomei had not been mentioned by him in the statement made to the Police during investigation. However, the manner in which that omission was brought on the record by the trial Court has not the sanction of law. What the Court did was to read the Police statement of the witness in Court and then make , a note that the name of Khomei was not mentioned therein. Such method of contradicting a witness was seriously criticised by the Supreme Court in Tahsildar Singh v. State of U. P. : 1959CriLJ1231 , for it has the effect of bringing the entire Police statement of the witness on record whereas Section 162 Criminal P.C. permits confrontation only of the portion which is contradictory to the Court statement of the witness. Further, the omission does not amount, speaking generally, to a recorded statement and as such the alleged omission in the Police statement of Ibochou Singh could not be used for contradicting him. Hence, it cannot be said that Ibochou Singh had not mentioned the name of Khomei in his Police statement. He specifically denied the defence suggestion to that effect.

15. Khomei's complicity in the dacoity also gathers corroboration from the statement of Mangkham Kom (P, W. 5). This witness was present in the house of Dr. Sarkar in connection with the puja ceremonies when the dacoity was committed. He too like Dr. Sarkar and Ibochou Singh (P.W. 4) was assaulted by the dacoits. He affirmed that Ibochou Singh has been kidnapped by the culprits and that he could identify the latter in the light available in the quarter. The witness also picked out correctly the accused Khomei at the time 'of the identification parade. He said in (ringing terms that he did not see anyone of the culprits after the date of occurrence and before the date on which' the identification parade was held. The learned trial Court ignored the testimony of the witness for the reason that during his cross-examination the witness said that he knew Khomei since the year 1964, and that if so 'no value could be attached to his evidence', I have not been able to appreciate the approach of the trial Court. I agree that if the witness knew the accused Khomei since before the date of occurrence, there was no utility in calling upon him to identify the accused in the test parade. Nor can, it is also evident, any value be attached to the identification done by the witness in such circumstances. However, the state-ment of the witness made in examina-tion-in-chief that Khomei was one of the dacoits cannot be lightly brushed aside if that accused was known to the witness as affirmed by him. The cross-examination done on the witness was very spare and nothing could be elicited from him to indicate that he had any motive for falsely involving Khomei. The trial Court was not justified , while ignoring the identification of the accused by the witness at the test parade, also to jettison his firm and unambiguous testimony that Khomei was known to him since the year 1964 and that He (Khomei) was one of the participants in the dacoity. Therefore, the statement of Dr. Sarkar that Khomei was one of the dacoits gathers convincing corroboration from the testimony of Mangkham Kom.

16. To sum up, we have the dependable Court .statement of Dr. Sarkar supported by the earlier identification proceeding that the accused Khomei. Thawan and Birahari Singh were members of the gang of dacoits who plundered his house at about 10-00 p. m. on 9-11-1967; the Court statement of Dr. Sarkar is corroborated by P.W. 4 Ibochou Singh respecting all the three accused identified by the former in test parade; and in addition the statement of Dr. Sarkar is corroborated by Mangkham Kom respecting the accused Khomei. It is in order to mention that the accused Khomei and Thawan admitted in their respective statements Under Section 342 Criminal .P.C. that Dr. Sarkar had identified them unerringly at the time of test parade. That, admission lends assurance at once to the credibility of Dr, Sarkar and fairness of the parade. The learned trial Court acquitted Thawan and Birahari Singh on holding that excepting the statement of Dr. Sarkar there was no other evidence implicating them and that it was not legally permissible to convict them on the sole testimony of Dr. Sarkar. It looks obvious that the trial Court completely overlooked the statement of Ibochou Singh who very clearly implicated not only Khomei Singh but also Thawan and Birahari Singh.

17. Respecting the involvement Of accused Bira Sarma and Ibomacha Singh in the dacoity we have the statements of Ibobi Singh (P, W. 3) and Ibochou Singh (P.W. 4). It is a measure of the probity of Ibochou Singh that his statement was not challenged at all by the accused Bira Sarma and Ibomacha Singh. Not a single question was put to him in cross-examination on their behalf. It is indeed regrettable that the learned trial Court completely missed to take note of this peculiar feature of his statement. I have already reproduced the statement. of Ibochou Singh while discussing its value against the first three accused Khomei. Thawan and Birahari, and so I need not reproduce the same over again. Suffice it to sav that his statement is forthright and sounds credible. The consequence that follows is that we have a strong and direct evidence in the statement of Ibochou Singh in proof of the charge against Bira Sarma and Ibomacha Singh.

18. Ibobi Singh (P.W. 3) was another participant in the puja ceremonies in the house of Dr. Sarkar when the dacoity was committed. He affirmed that all the culprits were clad in olive green dress and were armed with lethal weapons. There was enough of light of petromax in the house, according to the witness, and as such he could identify the accused Bira Sarma and Ibomacha Singh as members of the gang of dacoits. The witness said further during his cross-examination that the accused named by him were known to him for the last 5 to 10 years. The witness is a chowkidar of the Public Works. Department and as such a rank outsider and disinterested person. His statement therefore can safely be taken at face value.

19. The learned .Additional Sessions Judge did not place reliance on the testimony of Ibochou Singh against the accused Bira Sarma and Ibomacha Singh because he had earlier disbelieved the witness against the accused Khomei Singh. In para 22 of the judgment the Court happened to observe that there was a chance that the persons who were guests of Dr. Sarkar may hav been taken as dacoits and that as such unless the prosecution could prove some individual acts against various accused it would not be safe to convict them on the basis of the general statement that they were members of the gang of dacoits. The learned trial Court however failed to take note of the fact that the four eye-witnesses. Dr. Sarkar Ibobi Singh, Ibochou Singh and Mangkharn Kom, unanimously testified that all the dacoits putting on olive green dress. Therefore, it was not difficult to distin- guish the dacoits from guests of Dr. Sarkar, especially when three guests of Dr. Sarkar have deposed against the five accused of this case and branded them as dacoits. Further, it would be, too naive to suggest that Dr. Sarkar himself could not discriminate between his guests and the bandits that stormed into his quarter. No suggestion was made to Dr. Sarkar that Bira Sarma or Ibomacha Singh was his invitee to the Junction. Therefore, the basis on which the testimony of Ibobi Singh and Ibochou Singh was cast aside by the trial Court is much too tenuous to carry weight with a judicial mind. I may appropriately, mention that Bira Sarma adopted the bold stand in his statement Under Section 342 Criminal P.C. that he was one of the participants in the puja. However, he never put a suggestion to that effect during the course of cross-examination of Dr. Sarkar, or,- for that matter, of any other eyewitness. Therefore, his presence at the time of the commission of dacoity is proved from his own mouth and since he was not a guest of Dr. Sarkar he has rightly been named as a dacoit by the prosecution. I feel satisfied from the evidence of Ibobi Singh and Ibochou Singh that Bira Sarma and Ibomacha Singh were members of the gang of dacoits. These two accused, like the other three, were wrongly acquitted by the learned Additional Sessions Judge, who. it is manifest, had applied not only wrong principles bearing on the value to be attached to the identifying witnesses but had failed to closely examine the material brought on the record by the prosecution.

20. For the reasons listed above I hold that all the five accused had participated in the dacoity and that in con-.sequence their acquittal was clearly wrong; This takes me to the question what offence is brought home to the accused, I think the charge Under Section 395 IPC alone is proved and not the one Under Section 397 I, P.C. Section 395 IPC punishes only simple dacoity. while Section 397 covers cases where deadly weapons are used, or grievous hurt caused, or- attempt to cause death or grievous hurt is made by the dacoits. Since [ have held above that all the five accused had participated in the dacoity they are clearly guilty of the offence punishable by Section 395 IPC All the ingredients of Section 397 T P.C. are, in my opinion, not proved. That section, in terms, states that if. at 'the time of committing robberv or dacoity. the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. The underlined words of the section clearly indicate that the case of that dacoit alone falls within the scope of Section 397 who had been directly and not vicariously guilty of using any deadly weapon, or causing hurt to any person, or attempting to cause death or grievous hurt to any person. However, neithei of the four ocular witnesses affirmed that any of the five accused had used any deadly weapon, or caused grievous hurt to any person, or attempted to cause death or grievous hurt to any one. Therefore, the acquittal of the accused on the charge Under Section 397 IPC is upheld.

21. In the result, I allow the State appeal to the extent that I set aside the order of acquittal respecting the charge Under Section 395 I. P, C. and convict each of the five accused under that section. Section 395 IPC prescribes the sentence of imprisonment for life or rigorous imprisonment for a term which may extend to ten years, besides fine. I think the interest of justice shall be amply met if each one of the five accused is sentenced to five' years' rigorous imprisonment, I order accordingly.


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