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Kashmira Singh and ors. Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana
Decided On
Judge
Reported in1950CriLJ177
AppellantKashmira Singh and ors.
RespondentThe Crown
Cases Referred and Mohammad Ishan Madari v. Emperor A. I.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....harnam singh j.1. resham singh, angrez singh, eashmira singh, eundan singh and shingara singh have been convicted under section 3e5, penal code, in the court of mr. v. p. malhotra, sec tion 30 magistrate, bupar, besham singh has been sentenced to aeren years' rigorous imprisonment, while eashmira singh, eundan singn, shingara singh and angrez singh have been sentenced to three years' rigorous imprisonment each and a fine of rs. 600 each and in default of payment of fine to further rigorous imprisonment for one year each, kashmira singh, kesham singh and shingara singh have come to this court in appeal through mr. daulat bam prem, while kundan singh and angrez singh have appealed through jail authorities.2. this order will dispose of criminal ap. peals noa. 399, 425 and 426 of 1948.3......
Judgment:

Harnam Singh J.

1. Resham Singh, Angrez Singh, Eashmira Singh, Eundan Singh and Shingara Singh have been convicted Under Section 3E5, Penal Code, in the Court of Mr. V. P. Malhotra, sec tion 30 Magistrate, Bupar, Besham Singh has been sentenced to aeren years' rigorous imprisonment, while Eashmira Singh, Eundan Singn, Shingara Singh and Angrez Singh have been sentenced to three years' rigorous imprisonment each and a fine of Rs. 600 each and in default of payment of fine to further rigorous imprisonment for one year each, Kashmira Singh, Kesham Singh and Shingara Singh have come to this Court in appeal through Mr. Daulat Bam Prem, while Kundan Singh and Angrez Singh have appealed through jail authorities.

2. This order will dispose of Criminal Ap. peals Noa. 399, 425 and 426 of 1948.

3. Briefly the prosecution caae is that dacoity took place in the house of Inder Singh P.W. 1 in Mandi Jamal on the night between 9th and 10th February 1948. Inder Singh P.W. was sitting with his family in his kotha. His kuram Teja Singh was also sitting with him. Mt. Dyalo P.W. 4, daughter of Inder Singh, had gone out to fetch water. Suddenly, six or seven men entered the compound of the house, Inder Singh came out of his kotha to see who they were. Presently, he heard the report of a gun fire. One of the daooits caught hold of Inder Singh P.W. 1 by his keshas and injured him with his kipran. The other dacoits were armed with barahhas and guns, One of the other dacoits hit Inder Singh with a barchha. Inder Singh fell down. Mt. Gulab Kaur P.W. 2, wife of Inder Singh, also came out of the kotha and one of the dacoits forcibly took off her earrings. Presently, two of the dacoits went up the kotha. Of them one lit a torch and the other started firing indiscriminately to scare away the villagers. Some of the dacoits entered the kotha. They brought out a trunk and took it upstairs, The dacoita had chained the door of the kotha from inside and so the villagers could not come to the help of Inder Singh P.W. 1 and Mt. Dyalo P.W. 1. On the roof the dacoits sorted out their booty and got off from the roof on to a house at the back of the Icotha and then made off. The whole incident took about an hour or so,

4. A report of the incident was made to Lala Wazir Chand, Station House Officer, Police Station Zira, on 10th February 1948 at 11 A. M. At the time of the report Inder Singh P.W. 1 produced the articles p/46, a khaki jhola, p/47, a fired 12 bore cartridge, p/48, one loaded 12 bore cartridge, p/49, one empty. 303 cartridge and p/SO, two broken pieces of kirpan's scabbard.

5. Dr. Nihal Chand, Sub-Assistant Surgeon, Zira, P.W. 10, examined Inder Singh P.W. 1 on 10th February 1948 and found the following in-juries on his person : (1) a superficial circular contused wound l/8' x 1/8' on right side of face J' below inner part of right eye; (2) two superficial contused wounds l/8' x 1/8' each on outer part of right cheek; (3) two superficial circular contused wounds 1/8' x 1/8' each on the outer upper part of right arm; (4) one superficial circular contused wound 1/8' x 1/8' on point of right shoulder; (5) stab wound 3/4' x 1/8' x l' on outer middle part of right arm, oblique; the direction of the wound was forward and inwards; (6) contusion 2' x 8/4' with abrasion 1/4' x 1/8' on outer lower part of (right arm, oblique; (7) superficial incised wound 3/4' x 1/8' on upper part of left supra scapular region antero-posterior in direction; (8) two contusions 7' x 2' and 4' x 1' on lower part of back of left chest, oblique; the part was swollen; (9) contusion 4' x 3' on outer middle part of left arm; (10) superficial incised wound 3/4' x l/a' on back of first phalanx of left little finger, transverse; (11) abrasion 3/4' x 1/4' on back middle part of right hand; (12) abrasion 1/8' x 1/8' on back of outer part of right hand; (IS) contusion 1/3 x 1/2' on front lower part of left side of chest; (14) three abrasions 1/2' x 1/2' each an outer part of left knee; (15) two Bcratohes 2' x 1/16' on inner middle part of left leg, oblique; (16) contusion 1' x 1' with lineal scratch 3/4' on front of right knee; (17) contusion 1/2' x 1/2' on inner part of left Bide of lower lip; the left lower lateral incisor tooth was missing; the left lower central incisor tooth was shaky; no injury to gum mar. gin or to socket of missing tooth; (18) abrasion 1/2 x 1/2' on front middle of left leg; and (19) four superficial linear cuts 1/2' x 1/3' x 1/2', 3/4' on palm of left hand.

6. Dr. Nihal Chand found two cuts on his coat, shirt and bunian corresponding to injuries NOS. 5 and 7. One pellet of shot was removed from the lower wound of injury no. 8. Injuries were Bimple. Injuries NoSection 1 to 4 were caused with gun shot; injury ko. 5 was caused by a sharp pointed weapon and injuries nob. 7 and 10 by a sharp edged weapon. The remaining injuries were caused by a blunt weapon.

7. Dr. Nihal Chand examined Mt. Gulab Kaur, wife of Inder Singh P.W. on 11th Febru. ary 1948 at 1 p. m, and found the following in. juries on her person : (1) contusion 3' x 1 1/2' on outer middle part of right leg, oblique; (2) contusion 1 1/2' x 1/2' on back upper part of right arm, oblique (3) contused wound 1/2' x 1/8' superficial on back of middle part of pinna of right ear; (4) small superficial laceration round the holes of earrings on the pinna of right ear; and (6) small superficial laceration round the holes of earrings on upper part of pinna of left ear. In-juries were simple. Injuries NoSection 1 to 3 were caused by a blunt weapon and injuries Nos. 4 and 5 were caused by the pulling out of earrings.

8. Dr. Nihal Chand examined Sohan Singh son of Inder Singh at 1-15 p. m. on 11th February 1948 and found the following injuries on his person : (1) abrasion 1' x 3/4' on the back lower part of right forearm; (2) abrasion 1/2' x 1/4' on back of right wrist, 1/2' below injury NO. 1; (3) superficial linear out l 1/2' on outer surface of palm of left hand between thumb and index finger, oblique ; (4) contusion 2' x 1/4' on back middle part of left chest, oblique; (5) scratch 3/4' x 1/16' on middlevpart of left Bide of forehead, oblique; and (6) abrasion 1/2 x 1/8 on left side of face 3/4' outer to left eye, transverse.

9. The injuries were simple. Injury No. 3 was caused by a sharp-edged weapon and the remaining injuries by a blunt weapon.

10. Dr. Nihal Chand examined Nira Singh son of Kesar Singh at 1-30 p. m. on 11th February 1948 and found a superficial circular contused wound 1/8' x 1/8' on the left side of chest 2' below and outer to left nipple. The injury was simple and was caused by a gun shot. One pellet of shot, Ex. P-57, was removed from the wound and sent to the police.

11. On llth February 1948 at 1-45 p. m. Dr. Nihal Chand examined Teja Singh and found a contused wound 1 1/4' x 1/8' x 1/4' on left side top of head 4 1/2' above left ear and 1/2' from middle line, oblique. The injury was Simple and caused by a blunt weapon.

12. Lala Wazir Chand, Station House Officer, P.W. 18, went to the house of Inder Singh in Mandi Jamal on 10th February 1948 at 3 p. m. At the spot were lying a chapal, Ex. P-51, a shoe, Ex. P-58 and a used .303 cartridge, Ex. P-59. The Sub-Inspector took these articles into possession.

13. Kashmira Singh convict was arrested on 12th February 1948 in Dharamkot, and Kartar Singh, Angrez Singh, Resham Singh, Kundan Singh and Shingara Singh on 13th February 194S at village Masitan. Wadhawa Singh was arrested on 15th February 1948 at Zira and Vir Singh who was declared a proclaimed offender was arrested on 18th April 1948. Of the dacoits Tara Singh is still absconding. Wadhawa Singh, Vir Singh and Kartar Singh have been acquitted by the trial Court.

14. The Sub-Inspector conducted a number of searchaa on 12th and 13th February 1948. The house of Kashmira Singh convict was searched by the Sub-Inspector on 12th February 1948 and clothes P. 22 to P-SO were recovered. Angrez Singh convict was interrogated on 13th February 1948 and in consequence of information received from him artioles Exs. P-l to p. 4 were recovered lying buried under the floor of his kotha, Exhibits p-l to p-3 are clothes and ex. p-4 consists of 12 pairs of silver churis weighing 112 tolas. Angrez Singh admits this recovery and claims these articles as his own. Kundan Singh accused was also interrogated and he gave information that some clothes were buried in the haveli of Angrez Singh accused. Kundan Singh was taken to the haveli and he dug up clothes exs. P-19 to P-21. Kundan Singh denies the recovery of Exs. P-19 to p-21 at his instance and says that the articles do not belong to him. Shingara Singh accused produced clothes Exa. P-15 to P-18 from under a heap of firewood on 13th February 1948. Shingara Singh admits this recovery from his house and claims the recovered articles as hie own. Resham Singh accused also produced clothes Em P-5 to p. 14 buried in his haveli. Eesham Singh admits this recovery from his house and claims the articles as his own. At the time of the arrest of Keaham Singh the police recovered from his person Bxs. P-41, a jhola, IM9, a torch, P-43, two live cartridges, P-44, a fired cartridge and IMS, a brass cap. Reaham Singh does not admit the recovery of these articles from his person.

15. A parade for the identification of the accused was held in the Central Jail at Firoze-por,e by Kanwar Balbir Singh, Section 30 Magistrate. A record of the proceedings is Ex. P-E.

16. Inder Singh P.W. 1 identified Angrez Singh and Kashmira Singh convicts saying that they were amongst the dacoits. Mt. Gulab Kaur identified Kashmira Singh as the dacoit who took off her earrings. Sohan Singh P.W. identified Angrez Singh, Kartar Singh, Shingara Singh and Kundan Singh accused as amongst the persons who took part in the dacoity. Kartar Singh P.W. -identified Kesham Singh as one of the dacoits who was firing from the roof of the kotha of Inder Singh. Mangal Singh P.W. 6 identified Kartar Singh as one of the daooits.

17. The accused objected before the identification parades that the prosecution witnesses knew them and that they had seen them before the identification parades.

18. The defence of all the accused was denial simpliciter.

19. From the facts set out above, it would appear that the conviction of Kashmira Singh, Reeham Singh, Shingara Singh, Kundan Singh and Angrez Singh proceeds upon the evidence of identification at the parades and the recoveries made from them.

20. Counsel contends in the first place that the list of stolen property Ex. P-C. is not admissible in evidence and that the admission of this list has prejudiced the ease of the convicts. Now, Sohan Singh P.W. 3 has stated:

I made ft list of the stolen articles on the day after the incident and gave it to the Thanedar on the same day. That list is Ex. P-C. and is in ray hand. The Thanedar recorded my statement at his dera in the village.

21. A similar point arose in Cri. Revn. No. 440 of 1948 disposed of by me on 19th January 1949. In that case I held:

Exhibit P-B., list of stolen articles given by Ram-chand P.W. I subsequent to the commencement of the investigation, was not admissible as evidence in the ease.

22. For the reasons given in Amar Singh v. The Crown, Cri. Revn. no. 440 of 1948 : A. I. R (36) 1949 B, P. 316 ; 50 Cr.L.J. 794), I find that Ex. P-O. has been wrongly admitted in evidence at the trial.

23. Counsel next contends that do reliance ought to have been placed in this case on the result of the identification parade presided over by Kanwar Balbir Singh P.W. 17. The facts are that on 16th February 1948 Kanwar Balbir Singh held a parade for the identification of Kartar Singh, Kashmira Singh, Angrez Singh, Resham Singh, Kundan Singh and Shingara Singh accused in the Central Jail at Ferozepor. The accused persons were mixed with 14 other under-trials of their own choice and were allowed to select their own plaoes in the parade and to change their clothes. Inder Singh P.W. identified Angrez Singh and Kashmira Singh accused correctly and another person Udham Singh as being the person who took part in the daooity at his house. Mt. Gulab Kaur identified Kashmira Singh as the person who took off her earrings. She also pointed out to one Kartar Singh son of Sajjan Singh as one of the persons who took part in the dacoity. Sohan Singh P.W. identified Angrez Singh, Kartar Singh, Shingra Singh and Kundan Singh accused as among the persons who took part in the dacoity at their house, Teja Singh P.W. could not identify any accused and Kartar Singh P.W. identified Resham Singh accused and one Udham Singh son of Kishan Singh as the persons who were among the dacoits. Kartar Singh said that Resham Singh had a gun or a rifle with him. Hira Singh P.W. pointed out one Kartar Singh son of Sajjan Singh as one of the dacoits and Mangal Singh P.W. identified Kartar Singh accused as one of the daooits. Lastly, Dial Singh P.W. identified one Banta Singh as one of the dacoits.

24. The result of the identification parade Bhows that Kashmira Singh convict was identified by Inder Singh P.W. 1 and Mt. Gulab Kaur P.W. 2; Resham Singh was identified by Kartar Singh P.W. 5 alone; Shingara Singh and Kundan Singh were identified by Sohan Singh P.W. 8 alone and Angrez Singh was identified by Inder Singh P.W. 1 and Sohan Singh P.W. 8.

25. The argument raised by the defence counsel is that no reliance can be plaoed on identification of Mt, Gulab Kaur P.W. 2, Sohan Singh P.W. 3 and Kartar Singh P.W. 5. Now, Mt. Gulab Kaur P.W. 2 stated at the trial:' 'One of the men forcibly took off my earrings.' She did not point out the accused at the trial who had forcibly taken off her earrings. He raises the same objection in respect of the testimony of Sohan Singh P.W. 3 and Kartar Singh P.W. 5. Sohan Singh P.W. 3 stated: 'I went to the District Jail to identify the acoused persons' and Kartar Singh P.W. 5 stated 'I identified some of the dacoits in the District Jail.' He citea Bindeshri and Ors. v. King-Emperor A. I. R (14) 1927 ALL. 163 : 27 Cr.L.J., 1358, Lai Singh v. King.Emperor A. I. R (12) 1925 Lah. 19 : 27 Cr.L.J. 170 and Bhagat Bam v. Emperor A. I. R (21) 1934 Lah. 641 : 36 Cr.L. J. 121. In Bindeshri v. King-Emperor A. I. R (14) 1927 ALL. 163 : 27 Cr.L.J. 1358, Bannerji J. held :

I am not aware of any section of the Evidence Act, which makes the identifloation prooeedings evidence at all, The only evidence, therefore, before the Court was the statement of Birjhan that he was among the daooits.

Now it appears that the Court in deciding the point did not refer to the provisions of 8. 9, Evidence Act which, inter alia provides: 'Facts which establish the identity of a person are themselves relevant.' this authority is of no assistance in the determination of the point before me.

26. The facts in Lai Singh v. King Emperor A. I. R (12) 1925 Lah. 19 : 27 Cr.L.J. 170, were that Mr. Phailbus, a Magistrate of Montgomery, was called to prove the identifioa-tions in the Montgomery Jail and the methods adopted. Instead, however, of stating in Court the details and the results he merely referred to certain documents which were described as ex-hibite, in which he stated that his evidence was to be found. These documents were put on the record as his evidence. On these facts Broadway and Fforde JJ., held:

The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that acoused person, The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification 'parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness wash a position to show that he knew a certain accused person by sight.

This case again ia no authority for the proposition advanced.

27. Subsequent to the decision of the case in Lai Singh v. Emperor A.I.R. (12) 1925 Lah. 19 : 27 cr. L. 3. 170, the Punjab Government for the guidance of Magistrates in their conduct of identification parades issued instructions contained in Punjab Government Circular Letter NO. 6O91.J-36/39829/H.Judl., dated 19th December 19S6, The instructions, inter alia, lay down :

When any witness identifies a member of the parade, the Magistrate should note in what connection he is identified. A note should also hi made If the witness identifies a person wrongly; in such a case it is incorrect to note that the witness identified nobody. All persons identified must be mentioned, whether the identification is right or wrong. If a witness, on being called for the purpose, states that he cannot make any identification, a note should be recorded by the Magistrate to this effect.

28. In Bhagat Bam v. Emperor A.I.R. (21) 1934 Lah. 641 : 36 Cr.L.J. 121, Abdul Rashid J., following Lai Singh v. King Emperor A. I. R (12) 1925 Lah. 19 : 27 Cr. L, J. 170 and Bindeshri v. King-Emperor A. I. R (14) 1927 ALL. 163 : 27 Cr.L.J. 1368, held:

Identification proceedings held in the jail amount merely to this: that certain persons are brought to the jail or some other place and make statements either express or implied, that certain individuals whom they point out are persons whom they recognised as having been concerned in a particular crime. These statements are not made on cath and are made in the course of extra judicial proceedings, The law does not allow statements of this kind to be made available as evidence at the trial unless and until the persons who made those statements are called as witnesses. When these persons are called as witnesses, that these previous statements become admissible, not as substantive evidence in the case, but merely as evidence to corroborate or contradict the statements made by these witnesses in Court. When a witness to identify is called in the Sessions Court and states that he can identify no one, there is nothing to corroborate and the evidence of any previous statements, express or implied, made by him in the course of identification proceedings in the jail is not admissible.

29. In the first place this judgment does not proceed upon the consideration of the provisions of Section 9, Evidence Act, and in the second place, the witness in that case had stated at the trial that he could identify no one. With great respect, I am constrained to differ from the view taken by Abdul Eashid J. in Bhagat Bam v. Emperor A. I. R (21) 1934 Lah. 641 : 36 cr. ' L. J. 121, for in my opinion evidence of identification is relevant Under Section 9, Evidence Act, and it can be proved by any of the modes of proof given in part iv, chapter 15, Evidence Act.

30. Sardar Gurdev Singh who has appeared in these proceed ings for the Crown cites Nur Mohammad and Anr. v. Emperor A.I.R. (31) 1941 Sind 38 : 45 Cr.L.J. 393, Bachchu v. Emperor A.I.R. (17) 1930 Oudh 456 : 128 I. 0. 739 and Natha and Ors. v. Emperor A. I. R (15) 1928 Lah. 546 : 29 Cr.L.J. 366. In Nur Mohammad v. Emperor A. I. R (81) 1944 Sind 38 : 45 Cr.L.J. 393, Davis 0. J. and O'Sulli. van J. said :

Now, Nuro appealed from jail and we have not the benefit of arguments from an advocate on his behalf, so that arguments had necessarily to come for the most part from the Bench; but finally they resolved themselves into a question of the interpretation of Section 9, Evidence Act. It is, we think, correct to state generally that an accused must be convicted upon evidence recorded by a Judge in the course of the trial by him and that previous statements made by a witness out of Court though repeated in Court have only a limited purpose and effect and when they are not repeated but denied in Court, this purpose and effect may be more limited still. A common instance of the use of a previous statement is of course for the purpose of contradiction or corroboration under SSection 145 and 157, Evidence Act. but S, 9 and the illustrations show that in certain circumstances evidence ia admissable of previous statements made by witnesses for other and limited purposes. The section relates to facts necessary to explain or introduce facts in issue or relevant facts or which among other things establish the identity of a person, whose identity is relevant and in this case the arrest of Nuro is, we think, a relevant fact and his identity is also relevant. The illustrations in Section 9 contain instances of statements made and admissible under this section. Illustration (a) for instance contains a statement (relevant as explanatory ; so does illus. (d). But the question arises as to whether these statements are admissible as evidence of the truth of facts therein stated and farther the question arises as to how far a previous statement made by a witness which is denied by that witness in Court comes under the ban of hearsay evidence and as such ia inadmissible?

Davis C. J. and O'Sullivan J, further held :

We think therefore that in this case the statement by Khamiro that Mt. Saidan denounced Nuro as one of the abductors is admissible Under Section 9 as explaining the circumstances of Nuro's arrest and also for the purpose of establishing his Identity.

31. Again, in Baohohu v. Emperor A.I.R. (17) 1930 Oudh 455 : 128 I. 0. 739, Baza and Nanavutty JJ, held :

The evidence which goes to prove that a person has identified another person as having taken part in a particular offence either in jai densification proceedings or elsewhere is admissible though the value of such evidence is weakened perceptibly as a general rule by failure to identify subsequently in Court.

32. In Natha v. Emperor A. I. R. (15) 1928 Lah. 616 : 29 Cr.L.J. 366, Addison and Cold-stream JJ, observed :

The tonga driver (P.W. 9) who picked out Natha and Gama at the parade held by the Magistrate as two of the assailants has now staled that they were shown to him before and that he did not see them amongst the persona who took part in the attack. He also said that he was kept at the Kotwali till 31st May when he made his statement before the Committing Magistrate, I do not believe either of these statements but, the value to be attached to his previous identification is of course very little, if any, now that he has said that he did not gee Natha and Gama amongst the assailants. The (act that he did identify them is, however, admissible.

[83] The point came up for decision in Par-tap Singh and Ors. v. Emperor 92 I.C. 167 : A. I. R (IS) 1926 Lah. 310 : 27 Cr.L.J. 216, where Harrison and Jai Lai JJ. observed :

The next paint on which the counsel has laid stress Is the evidence of identification dealing with the two parades, which were held at village Kalswala and in Jail. At the first of these parades accused NoSection 1-6 were not present, the obvious reason being as found by the learned Sessions Judge, with whom we agree, that it was considered unnecessary to include them in this first parade as they and their names were already known and the parade was not conducted with a view to see which men out of those, who were arrested, could be identified by the witnesses but to see which men out of a large number of over 280 the witnesses could book out as having taken part in the riot. be critioism amounts to this that the witnesses themselves do not in all oases repeat in Court that they picked entertain men, that the evidence on the subject consists of the statements of officers1 who conducted the parade and who tell us what happened. This, counsel urges, is secondary or corroborative and not primary evidence and, therefore, by itself has no value. Belying on the same ruling Amir Zaman v. Emperor, 6 Lah. 199 : A. I. R (12) 1925 Lah. 452 : 26 Cr.L.J. 1245, which we have quoted above we find that this evidence ia admissible.

34. Again, a reference to Mohammad Ishaq Madari v. Emperor A. I. R (29) 1942 Lah. 69 : 48 Cr.L.J. 428, shows that in that case Young C. J. and Sale J. took the same view. Gordhan Singh was examined in the Court of the Com. mitting Magistrate. He was tendered for cross-examination at the sessions trial and was cross examined; and in cross-examination gave some account of the occurrence in the course of which he said that he ran after the murderer, who escaped into the moBque, but that he was prevented from following him. The learned Sessions Judge observed :

As he does not appear to have identified the culprit, it doea not appear that he played any part in the affair.

On those facts Young C. J. and Sale J. held :

This adverse criticism is, in our opinion, hardly justified. In fairness to foot constable Gordhan Singh it ought to be explained that he was called to the first identification parade held on 3rd September and duly identified Mohammad Ishaq as the murderer (see the evidence of the Magistrate who held the identification parade). During the committal proceeding however Gordhan Singh seems to have stated, reasonably enough, that as some months had elapsed, he was then unable to identify Mohammad Ishaq in Court. Accordingly he was only tendered before the Sessions Court and the learned Sessions Judge seems to have assumed that the witnesB has in some way 'resiled'. The prosecution ought to have recalled Gordhan Singh before the Sessions Court and allowed him to prove those facts. It would then have been established that Gordhan Singh did in fact identify Mohammad I3haq at the identification parade and it would have been for the Court to decide whether his subsequent failure to identify Mohammad Ishaq in Court some months after the identification parade, together with his explanation for this failure, was reasonable or not.

35. With great respect I would follow the rule laid down in Nur Mohd.v. Emperor A. I. R (31) 1944 Bind 38 : 45 Cr.L.J. 893; Natha v. Emperor A .I.R. (15) 1928 Lah. 146 : 29 Cr.L.J. 366; Bachchu v. Emperor A. I. R (17) 1930 oudh 455 : 128 I. 0. 739; Partap Singh v. Emperor, 92 I.C. 167 : A. I. R (13) 1926 Cal. 310 : 27 Cr.L.J. 215 and Mohammad Ishan Madari v. Emperor A. I. R (29) 1942 Lah. B9 : 43 Gr. L. J. 428 and hold that the identification proceedings are facts which establish the identity of the accused persons and are themselves relevant.

36. This brings me to a consideration of the evidence as against the various convicts.

37. Kashmira Singh convict was identified in the identification parade by Indar Singh, P.W. 1. He stated at the trial that he attended a parade for the identification of the accused in the Central Jail, Ferozepore, and identified Angrez Singh and Kashmira Singh accused as two of the persons who took part in the daooity at his house. Kanwar Balbir Singh, P.W. 17, has proved his report Ex. P-B which shows that Indar Singh P.W. identified Angrez Singh and Kashmira Singh accused correctly. This evidence of identification has been accepted by the trial Court and I do not see any ground for upsetting this finding that Kashmira Singh convict was properly identified at the identification parade.

38. Again, the prosecution case is that from the possession of Kashmira Singh articles, P-22 to p. 30, were recovered on 12th February 1948. These articles are clothes and they are identified by Indar Singh P.W. 1, Mt. Gulab Kaur P.W. 2 and Sohan Singh P.W. 3. Mt. Gulab Kaur, however, stated: 'Clothes similar to those present in Court and the churn are found in zemindara houses.' Again, none of these clothes is mentioned in the first information report made by Indar Singh P.W. 1. Kashmira Singh admitted the recovery and claimed the articles, Exs. P-22 to P-30, to be his own property. In view of the evidence of Gulab Kaur P.W. 2, I do not think it safe to hold that the ownership of the articles, ]?.22 to P-30, has been established in this case. There remains the evidence of Indar Singh P.W. 1 that he identified Kashmira Singh convict at the parade held on 16th February 1948. The offence in this case was committed on 9th or 10th February 1948, and Kashmira Singh was arrested on 12th February 1948, and he was put up for identification on 16th February 1948. Be that as it may, in my opinion, it would not be correct to maintain the conviction of Kashmira Singh on the evidence of Indar Singh P.W. 1 alone.

39. It may be noted that Mt. Dial Kaur D. w. 4 appeared at the trial and stated that the clothes, p-22, P-23, P-24, p-26 and p. 30 were recovered from the house of Dharam Singh, her husband, and claimed those articles as her own. Sardar Jaswant Singh, Sub-Inspector, Evacuee Property, Moga, D. W. l, stated that Kashmira Singh convict was not in possession of any house of any Muslim in Dharam Kot. The house from where the articles, P-22 to P-30, were recovered belonged to Allah Ditta and was occupied by Dharam Singh son of Sulakhan Singh of Natheki, father of Kashmira Singh accused.

40. For the reasons given above, allow the appeal of Kashmira Singh and acquit him.

41. Resham Singh has been identified by Kartar Singh P.W. 5 at the identification parade held on 16th February 1948. Resham Singh was arrested on 13th February 1948, At the trial Kartar Singh stated: 'I identified some of the dacoits in the District Jail.' A reference to the evidence of Kanwar Balbir Singh P.W. 17 shows that Kartar Singh identified Resham Singh accused and one Udham Singh son of Kishan Singh as the persons who are among the dacoits. Udham Singh is not an accused in this case and Kartar Singh P.W. has not stated at the trial that Resham Singh convict was identified by him at the identification parade, The objections to his identification are that in the first place he has not given a statement at the trial that he identified Reaham Singh convict at the identification parade, and in the second place that he also identified Udham Singh wrongly. That being so, counsel argues that the identification of Resham Singh convict was merely a matter of chance. I agree with him and hold that under the circumstances, no reliance can be placed on the testimony of Kartar Singh, P.W. 5.

42. Prom the possession of Resham Singh olothes, P-5 to P-14, were recovered on 13th February 1948, and further at the time of arrest articles P-41 to p-45, were recovered from his person. These articles are a jhola, a torch, two live cartridges, one fired cartridge and a brass cap. The recovery of these articles, however, does not connect him with the incident in question and the other articles P-5 to p 14, recovered from him are articles which, according to the statement of Mt. Gulab Kaur P.W. 2, are often to be found in zemindara houses.

43. For the reasons given above, I allow the appeal and acquit Resham Singh.

44. Shingara Singh and Kundan Singh oon-victa were identified at the identification parade by Sohan Singh P.W. 3. This is borne out by the testimony of Kanwar Balbir Singh P.W. 17. At the trial, however, Sohan Singh P.W. 3 stated: 'I went to the District Jail to identify the accused persons.' He did not mention at the trial the name of the person whom he had identified at the identification parade. From Shingara Singh articles, p-15 to P-18, and from Kundan Singh articles, p. 19 to P-21, were recovered. These articles again are of the type which are often to be found in zemindara houses.

46. In the case of Shingara Singh there is another incriminating circumstance that he produced p. IB to P-18 from under heap of firewood on 13th February 1948. In the absence of proper identification of P-15 to p. 18, this circumstance does not help the prosecution. Kundan Singh likewise dug up the articles, P-19 to P-21, from the haveli of Angrez Singh oonvict. In the absence of good evidence that the articles re. covered from Shingara Singh and Kundan Singh are stolen property, this fAct.does not help the prosecution.

46. For the reasons stated above, I allow the appeals of Shingara Singh and Kundan Singh and acquit them.

47. Angrez Singh, as stated above, was identified by Indar Singh P.W. 1 at the identifi. cation parade and Indar Singh ha9 stated at the trial that he identified Angrez Singh at the identification parade held in the Central Jail at Ferozepore.

48. From his possession were recovered articles, P-l to P- 4. Exhibit P-4 are twelve pairs of churis. In the first information report, Ex. P-A, Indar Singh mentioned that 9/io pairs of churis weighing about 150 tolas were stolen, Mt. Gulab Kaur P.W. 2 has stated that churis similar to those present in Court are to be found in zemindara houses. Again, according to the first information report 9 or 10 pairs of churis were stolen and they weighed about 160 tolas, The twelve pairs of churis recovered from Angrez Singh in this case weighed na tolas. These facts would show that the 12 pairs of churis recovered from Angrez Singh were not the proceeds of theft committed in the house of Indar Singh, P.W. 1. I have not acted upon the identification by Indac Singh P.W. 1 of Kashmira Singh oonviot and for similar reasons, I do not act upon his evidence of identification of Angrez Singh convict. That being an, I allow the appeal of Angrez Singh and acquit him.

49. The result is that I allow criminal Appeals Nos. 899, 425 and 426 of 1948, set aside the convictions and sentences of Eesham Singh, Angrez Singh, Kashmira Singh, Kundan Singh and Shingara Singh and direct that they be set at liberty forthwith.


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