1. These two appeals arise out of S. T. Nos. 68/10 (S) of 1961 and 8/11 (S) of 1962 tried by he Assistant Sessions Judge of Sambalpur Sundargarh. Though the incident was one, two different cases were started as respondents 1 to 8 were arrested on or before 1-2-61 and respondents Pareswar Sindur alias Ghasi and Sankar Sindur alias Ghasr were arrested on 24-7-1961. However there was one trial. The prosecution case is that in the night of 21st January 1961 respondents committed a dacoity in the house of P. W. 2 (Abhimanyu Thakur) and in course of such dacoity properties worth about Rs. 2000/- had been stolen from the house of P. W. 2, and the owner of the house was assaulted in his courtyard. P. W. 4 saw from the kitchen peeping through the bamboo holes respondents 2 and 8 assaulting P. W. 2. A hulla was made by P. W. 2 and many villagers gathered in the village Danda. P. W. 5 peeped outside through the holes of the doors of his bed room and identified respondents 2 and 5 in the common passage. P. Ws. 6, 7 and 8 identified different accused persons while they were in the bari of P. W. 2. M. Os. I and II were recovered from the house of the respondent Pareswar Sindur alias Ghasi and M. Os. V to VIII were recovered from the house of respondent No. 8. The defence was one of denial.
2. The learned Assistant Sessions Judge tried the respondents under Section 395, I, P. C. He convicted respondent No. 8 under Section 411, I. P. C. and sentenced him to R. I. for 6 months. He acquitted all the respondents of the charge under Section 395, I. P. C. We are told that against the order of conviction under Section 411, respondent 8 has filed an appeal before the learned Sessions Judge, Sambalpur. Against the order of acquittal, Govt. Appeals have been filed.
3. The learned Assistant Sessions Judge, on analysis of the evidence, found that (i) decoity had been committed in the house of P. W. 2 in the night of 21-1-1961 by more than five persons; (ii) M. Os. V to VIII belong to P. W. 2 and were recovered from the house of respondent 8; (iii) M. O. II does not belong to P. W. 2 and M. O. I was recovered from the house of respondent Pareswar Sindur and though it belonged to P. W. 2, respondent Pareswar was not liable to be convicted under Section 411 as the recovery was made long after the occurrence; and (iv) the evidence of identification was not reliable.
4. That dacoity was committed in the house of P. W. 2 in the night of occurrence was not assailed before us. We therefore uphold that finding and there are sufficient materials on record in support of it
5. The most important reason for acquittal given by the learned Asst. Sessions Judge in discarding the evidence of identification may be put in his own language:
'The identification made by a witness in the trial court is not accepted unless that identification is supplemented by earlier identification in the Committing Court. This seems to be the rule of caution and prudence.'
The learned Judge arrived at this conclusion by placing reliance on two decisions of the Allahabad High Court reported in Maikoo v. State, AIR 1961 All 612 and State v. Ram Bilas, AIR 1961 All 614. The view expressed by the learned Judge is untenable. Under Section 207A (4) Cr. P. C. the Magistrate shall proceed to take evidence of such persons, if any, as may be produced by the prosecution witnesses to the actual commission of the offence alleged, and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of anyone more of the other witnesses for the prosecution, the may take such evidence also. The section is very clear that the prosecution is not bound to examine any of the eye-witnesses before the committing court. There can be no distinction between identifying eye-witnesses and other eye-witnesses. The conflict of authorities on this point was set at rest by their Lordships of the Supreme Court in Shri Ram v. State of Maharashtra, AIR 1961 SC 674. The aforesaid two decisions of the Allahabad High Court were overruled in a Full Bench decision of that Court reported in Jwala Mohan v. State, AIR 1963 All 161 (FB). The learned Chief Justice observed:
'Prosecution is under no obligation to examine all the eye-witnesses (even if they did not know the offender and could only point him out) in the committing Magistrate's Court and is not debarred from examining such witness in the Sessions Court by the fact that he was not examined in the Committing Magistrate's Court. The evidence of such a witness must be judged by the Sessions Judge like that any other witnesses without any prejudice. It cannot be disbelieved on the ground of his not being examined in the Magistrate's Court. The Sessions Judge must appraise it in the light of all the circumstances excluding this and decide whether it should be believed and (if believed) what weight would be attached to it. He cannot draw a presumption adverse to the prosecution from the fact of his non-examination and would not be justified in assuming that he was withheld from oblique or bad motive.'
If we may say with respect, the aforesaid passage lays down the law correctly. The learned Asst, Sessions Judge took a wrong view and erroneously discarded the identification evidence on the ground that those eye-witnesses had not been examined in the committing Court.
6. Under Section 9, Evidence Act, facts which establish identity of any thing or person whose identity is relevant are relevant in so far as they are necessary for that purpose. In Vaikuntam Chandrappa y. State of Andhra Pradesh, AIR 1960 SC 1340 their Lordships have laid down that the statement of witnesses on identification in Court is the substantive evidence. The purpose of test identification is to test the evidence in court. The safe rule is that the sworn testimony of the witnesses in Court as to the identity of the accused, who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding. There may, however, 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. In this case admittedly the identifying witnesses (P. Ws. 4 to 8) never knew the accused from before and the accused are strangers to them. Courts have laid down that in such circumstances) identification evidence should always be examined with great care. It is laid down in In re Kamaraj, AIR 1960 Mad 125--
'The evaluation of identification evidence is perhaps one of the most difficult problems which confronts a judge. When we remember the extent of human fallibility, the fragility of memory and the tricks played by our senses it can cause us no surprise. In England and America it has been found that the major sources of miscarriage of justice are due to wrong identification.'
The witnesses remain on a state of excitement at the time of commission of dacoity and there is room for possibility of a mistake being committed. The proportion of outsiders to be mixed with the persons identified must be sufficiently large to eliminate the chances of the accused being picked up by chance.
7. In this case, the occurrence took place in dark night. But there is evidence that torch-lights were flashed and the witnesses identified the accused. The accused persons have no distinctive marks in their appearance to fix their features indelibly upon the minds of the witnesses. The F. I. R. also does not contain any description of any of the accused persons.
8. The question arises whether in these Circumstances, the evidence of the identifying witnesses is acceptable. P. W. 4 identified respondents 2 and 8 in Court, but to the T. I. parade he identified respondents 2 and 5. We saw respondents 2 and 8 while peeping through the bamboo holes in the kitchen in the courtyard of P. W. 2. Torch lights were flashed by the accused persons. If the torch lights were flashed by the accused persons, ordinarily the faces of the accused persons would not be visible and the face of P. W. 2 would be visible. Moreover on that part of the case P. W. 4 is not corroborated. There is likelihood of mistake being committed while peeping through the bamboo holes and identifying them. The fact that he identified respondent-8 in court and did not identify him in the T. I. parade and had identified respondent-5 as one of the accused whom he did not identify in court, makes his evidence vulnerable. For the aforesaid reasons, no reliance can be placed on the evidence of P. W. 4 regarding the identification of respondents 2 and 8 in the courtyard of P. W. 2.
P. W. 5 identified respondents 2 and 5 while he was peeping outside through the holes of the doors of his sleeping room in the common passage. He does not make any statement that there was flash of torch-lights at that particular place while he identified. His evidence is also not corroborated. In the aforesaid circumstances, it is difficult to place reliance on his evidence for identifying respondent Nos. 2 and 5 in the common passage.
P. W. 6 identified respondent-2. P. W. 7 identified respondents 2, 5, 6 and 7 and P. W. 8 identified respondents 2, 4, 5, 6, 7 and Pareswar Sindur. All these 3 witnesses deposed in their examination-in-chief that they themselves had been to the Bari of P. W. 2 and saw the accused persons there. In cross-examination all of them broke down and admitted that they did not go to tie Bari of P. W. 2 but stood in the Bari of Behera, Rana (not examined as witness). It may be noted that in between the Bari of Behera Rana and P. W. 2 lies the Bari of P. W. 5. Even much importance may not be attached to this discrepancy created by the consistent variance in the statements of these witnesses in examination in chief and cross-examination, the further fact remains that P. W. 5 deposed--
'My Bari has walls on three sides only. The Bari of P. W. 2 has no fence or walls on all sides'.
Reliance is placed for the defence that P. Ws. 6 to 8, standing on the Bari of Behera Rana cannot identify the accused persons in the Bari of P. W. 2, particularly when the two Baris are intervened by the Bari of P. W. 5 which is surrounded by walls on 3 sides. The defence lawyer in the lower court has failed to bring into evidence the height of these walls. Despite this lacuna, if the existence of intervening walls are proved, it would affect the plausibility of the prosecution case that P. Ws. 6 to 8 could identify the accused persons in a dark night by the torch flash with the intervention of the walls. The learned Government Advocate, however, contends that the Bari surrounded by 3 walls referred to by P. W. 5 relates to the court-yard to the north of the cowshed 'P' and to the south of bed-room 'O' as shown in the Spot map. There may be some force in his contention, but unfortunately the learned Public Prosecutor before the Sessions Judge has not clarified the position. P. W. 6 states--
'There is no fence or wall from the Bari of Behara Rana till the house of P. W. 2 through the Bari of P. W. 2.'
The learned Government Advocate relies on this statement in support of his contention that there are no intervening walls and that the statements of P. Ws. 6 to 8 can be relied on. I am unable to accept the evidence of P. W. 6. He makes prevaricating statements in different parts of his deposition. In examination-in-chief he has stated that they had gone to the Bari of P. W. 2 and in cross-examination he gave a different version. Before the Police he had stated that he and P. Ws. 7 and 8 came to the courtyard of Behera Rana and remained hiding by the side of the wall and did not state before the police about their coming to the Bari of Behera Rana. These are material contradictions. If they had not come out to the Bari of Behera Rana, the possibility of their identifying the accused persons is very meagre even if there are intervening walls.
In such circumstances, it is difficult to place reliance on the evidence of P. W. 6 that there were no intervening walls in the Bari of P. W. 5, when P. W. 5 himself categorically asserts to the contrary and the learned Public Prosecutor did not clarify the position in re-examination. P. Ws. 7 and 8 do not at all refer to the existence or other-wise of intervening fence or wall. In the circumstances, it is difficult to reject the evidence of P, W. 5 about the existence of intervening walls. At any rate, the accused persons are entitled to the benefit of that doubt. On the aforesaid analysis, the evidence of P. Ws. 6, 7 and 8 regarding identification is not acceptable. Moreover, P. W. 8 had identified one Pandab Gonda (not an accused) in the T. I. parade. We are not therefore prepared to accept the identification evidence of these witnesses as reliable.
9. It is conceded by the learned Government Advocate that if the identification evidence is rejected, there is no other evidence on record on the basis of which it can be said that the respondents were parties to the dacoity. The learned Asst. Sessions Judge did not discuss the evidence of identification as discussed by us. We are, however, inclined to accept his ultimate conclusion though for different reasons.
10. In view of our finding that the identification evidence is not acceptable, individual discussion with regard to some of the respondents is not necessary. But as the matter had been brought to our notice, it is better to place it on record. The appeals against respondents 1, 3 and Sankar Sindur 'alias Ghasi were not pressed. Respondent-8 was identified by P. W. 4 in Court but not in T. I. parade. He would therefore be otherwise entitled to acquittal. Respondent-4 was identified only by P. W. 8 who had also identified one Pandava Gonda as an accused. His acquittal would otherwise be justified. No witness identifies respondent Pareswar Sindur alias Ghasi. So even if the entire identification evidence had not been rejected by us, respondents 1, 3, 4, 8, Pareswar Sindur alias Ghasi and Sankar Sindur alias Ghasi would have been entitled to acquittal.
11. The learned Judge has held that M. O. II does not belong to P. W. 2. One of the reasons given by him is that this was not given in the list mentioned in the F. I. R. and Gold Mohur is a very common article. No question has been put under Section 342, Cr. P. C. to the accused persons as to ownership of the gold mohur. In the circumstances, the finding was correctly arrived at and we cannot set it aside. With regard to M. O. I the learned Judge has returned it to P. W. 2 holding that this was the subject matter of the dacoity. But as it was recovered very late, he was not prepared to draw any presumption that respondent Pareswar Sindur alias Ghasi knew that it was a stolen article. We are also not inclined to interfere with this finding. The finding that M. O. I belongs to P. W. 2, in the absence of the identification evidence, does not establish that Respondent Pareswar Sindur alias Ghasi was a party to the dacoity.
12. In the result the appeals fail and are dismissed.
13. I agree.