C. Honniah, C.J.
1. An armed robbery was committed at the house of one Ramchandra, resident of village Dulmera on the night intervening 20th and 21st of April, 1970. Chunni (PW. 8), wife of Ramchandra, who was in the house, woke up in the mid-night in order to give water to her cow. Then she saw three persons standing in the 'Bada'. She climbed on a ladder and asked those three persons, who they were? One of them, who was wearing a black pant, and a white shirt armed with a gun, came near the ladder, caught hold of her and dragged her down and threatened her staying the it if she raised hue and cry she would be done to death. Soon thereafter the other two persons, one of whom was wearing a 'Khakhi' shirt and having a 'Khakhi' 'chaddar', and the other wearing a 'Dhoti' and a 'kurta' of 'Kisnusi' colour, entered the house. One of them dragged her inside the house and assaulted her as a result of which she sustained an injury on the head. She was threatened not to shout. Then the three persons surrounded Ramchandra and asked him to show them the ornaments, money 'etc., upon which he replied that he was a poor man and he had none. As those persons threatened her husband with dire consequences, she pointed out silver ornaments kept under the pillow. Not being satisSed, one of 'hem fired the gun at Ramchandra, as a result of which he sustained an injury and died instantaneously. Then the three persons went away from the house. Thereafter, Chunni raised hue and cry, hearing which one Gulam Nabi, Chhote Khan, Allah Rakha, Chhabila Ram (not examined), Rukamdeen (PW. 5) and the other people of the village came reaming to the house of Ramchandra. Chunni (PW. 8) told these persons that three persons after committing murder of her husband took silver ornaments and ran a way crossing the railway track. Rukamdeen (PW. 5) along with some others went to the railway station at Dulmera, met Assistant Station Master Baldev Singh (PW. 15) at about 1 A.M and told him that there was robbery in the house of Ramchandra and that a message should be sent to the Police Station He asked Rukamdesn to give in writing. In the meanwhile five or six persons of the village came there. Rukamdeen handed over the report (Ex. P.32), to the Station House Officer, Loonkaransar. Jainarain Singh (PW. 17) received the message at about 1.30 A.M. He made an entry in the Police Rozriamcha. After making the entry, he along with Somdutt (PW. 16), Head Constable, arid four constables left the Police Station and reached Dulmera by 4 A.M. He found Ramchandra lying dead in his house. He recorded the statement Ex. P.12 of Chunni. He sent telephonic messages to the Station House Officer, Polite Station, Mahajan and to the Station House Officer, G.R.P, Bikaner about the robbery. He sent intimation to the Circle Inspector of Police, Bikaner also and requested him to come to the place with some tracker. Then he held inquest over the dead body. He recovered from the spot two knives, 6 empty cartridges. He noticed the foot-prints of three persons, put of which one was of a bare footed person. The other twp foot prints were of persons wearing shoes. He handed over the statement of Chunni (PW. 8) to Somdutt (PW. 16) and instructed him to go to the Police Station and register a case.
2. He left the village following the foot-prints along with Rukamdeen (PW. 5) and two constables, Dallararh and Bhanvar Singh. He saw the foot-prints not on any regular way (path), but across the country. He and his party passed through a number of villages and ultimately reached the village Gusainsar at about 6.51 P.M. covering a distance of about 30 miles. In the village Gusainsar he saw a man wearing black pant. Rukamdeen (PW. 5) identified that person as one of these persons, who committed the robbery on the previous night in the house of Ramchandra. He ascertained his name as Khemchand. He arrested him and recovered from his person a pair of silver 'Paijab' (Ex. 10). He recorded his statement and came to know that he had given one silver 'Tad' and two silver 'Pattis' to one Sukhveer Singh and that he had also given one 12 bore double barrel gun with a licence belonging to one Jagmal Singh He left that village and proceeded towards Doongargarh in a jeep with his companions, and reached Doongargarh Railway Station at about 8 P.M. Rukamdeen (PW. 5) pointed out Sukhveer Singh and Puran Singh. They were arrested. He recovered a gun with a license from Sukhveer Singh and on search found on his person twp server 'Pattis' (Ex. 12) and one silver 'Tad' (Ex. 13) vide Ex. P.17. He also searched the person of Puran Singh and found on his person a pair pf silver 'Pa jab' with 'Ghoongru' (Ex.11) vide Ex. P.16.
3. The three accused with their faces covered were taken to the Police Station on 22-4-1970. P.C. Singhvi (PW. 9), Magistrate held the identification parade in which Cninni(PW. 8) Chuonilal (PW. 6)', Gani Khan (PW. 12) and Dalla Ram (not examined) identified the accused parsons, as the persons, who committed the robbery on the night intervening 2Cth and 21st April 1970.
4. The empty cartridges recovered at the spot along with gun and live cartridges were sent to the Ballistic Expert, who opined that empty cartridges recovered from the place of incident, could have been fired by the gun recovered from Sukhveer Singh. As a result of the investigation, Khemchand; Sukhveer Singh, Puran Singh and Jagmil Singh were prosecuted for committing the robbery and in doing so for committing the murder of Ramchandra.
5. The defence of the accused was one of total denial. They contended that they were falsely implicated. According to them they were shown to the witnesses before the identification parade was held.
6. It could be seen from the history of the case, given above, that the evidence against the accused consists of the evidence of identification and recovery of silver ornaments, and gun. The learned trial Judge accepted this evidence against the three appellants, but rejected it in the case of Jagmal Singh. He, therefore, convicted Khemchand under Sections 312, 460, 394 Indian Penal Cede, and under Section 25 of the Aims Act, and convicted Sukhveer Singh and Puransingh under Section 302 read with Section 34, 400 and 394, Indian Penal Code and sentenced each one of them to undergo imprisonment for the effence of murder and awarded them imprisonment of various terms for the remaining offered and directed all the sentences to run concurrently.
7. The real question in this case turns upon the credibility of the evidence of Jainarain Singh (PW. 17), Gani Khan (PW. 2) Roshanlal (PW 4), Rukamdeen (PW. 5), Chunnilal (PW. 6) and Chunni (PW. 8).
8. Before dealing with the evidence of the above witnesses, it is necessary to point out how the law was set in motion. Rukamdeen (PW. 5) and 5 or 6 others went to Baldev Singh, Assistant Station Master of Dulmera Railway Station, soon after the robbery and informed him what they knew about the incident Gani Khan (PW. 2), and Rukarrdeen (PW. 5) and four others signed Ex. P.32 and gave it to Baldev Singh (PW. 15} stating that they heard three or four gun shots and that the wife of Ramchandra had run away to she house of Gari Khan (PW. 2). But Gani Khan (PW. 2), Rukamdeen (PW. 5) and Chunni (PW. 8) gave an improved version in the Court. According to Chunni (PW. 8) she saw the accused when they were neater. She was pulled down by accused Khemchand, when she was on the ladder, and thereafter Khetnchand shot at her husband, and thereafter all the three accused took away the silver ornaments which were under the pillow of her husband. Then she raised an alarm and went to the house of Gani Khan running. B) then Rukamdeen (PW. 5) Chunnilal (PW. 6) and Gani Khan (PW. 2) came running to whom she told as to what had happened in her house giving the description of the misicreants with reference to their clothes. Gani Khan (PW. 2) and Rukamdeen (PW. 5) have stated that they came to know from Chunni (PW. 8) as to the details of the incident and the description given by her of the culprits. This story obviously is an after thought. If really Rukamdeen (PW. 5) went along with Gani Khan (PW. 2) and four others to the railway station to give the derails of the incident to Baldev Singh (PW. 15), he would not have failed to mention all east that Ramchandra was shot dead and silver ornaments were stolen from his house. It is clear from Ex. P.32 that when the information was given to Baldev Singh (PW. 15) no ore including Gani Khan (PW. 2), Rukamdeen (PW. 5), Chunnilal (PW. 6) and Chunni (PW. 6) knew who the culprits were and mote so knew about their description and theft of the silver articles.
9. However, the Public Prosecutor contended that Ex. P.1 which was recorded on the early morning of 21 st April, 1970 gives some description of the culprits with reference to their clothes and also the missing silver articles from the house of Ramchandra, therefore, he contended that although at the point of time when Ex. P.32 was given the details were not given; from the recitals contained in Ex. P.1, it is clear that these witnesses knew to some extent the identity of the culprits and the articles that were stolen. There is no substance in this contention. The case, according to the prosecution, was registered on the basis of Ex. P.1 on 21-4-1970 or at the latest on 22-4-1970. The first information report in this case has roadbed the court on 29th April, 1970. No explanation has been offered for this inordinate delay. From this circumstance it is legitimate to draw an inference that the statement Ex. P.1 was not made before the Police on the early morning of 21st April, 1970 but might have been made very much later. Having regard therefore to the evidence on record we feel that the possibility of the first information report having come into being any time before 29th April. 1970 can not be excluded and this circumstance is sufficient to throw doubt on the prosecution case.
10. The first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over estimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence, to obtain early information regarding the circumstance in which the crime vas committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses at the scene of occurrence. Dailey in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay the report not only gets benefits of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account of concocted story as a of suit of deliberation & consultation See the decision in Thulia Kali v. The State of Tamil Nadu 1972 (III) Supreme Court Gases 393, In this case from the fact that the first information report reached the court 8 days after the occurrence, long after the entire investigation was over, it is clear that Ex. P.1 in all probability, camp into existence after the accused were arrested. This is a very serious infirmity in the evidence for the prosecution and that would render it unsafe to base the conviction of the accused.
11. The prosecution placed considerable reliance on the recovery evidence. The story of Jainarain Singh (P.W. 17) that he walked a distance of 30 miles in the third week of April 1970, in this part of the country, following the footprints, covering a distance of 30 miles between 9 A.M. to 7 P.M. is an incredible story. No reasonable man, thinking resononably, would believe this story In the first place, it is inconceivable that the culprits would have left their footprints for a distance of 30 miles. In the second place, there must have been any number of foot prints of hundreds of persons in that area Thirdly, the foot prints, that they noticed in the house of Ramchandra, might not be the same that they saw anywhere in between. Hence the very story can not be believed.
12. It is clear from Ex. P.32 that Ghunni (P.W. 8) did not at all know that silver articles had been stolen from her house. As a matter of fact no articles much less any silver article had been stolen. The evidence of Churni clearly establishes that the silver articles recovered from the possession of the accused did not belong to her. According to her one 'Tad' was pledged by a person with her husband 4 or 5 days before the date of the incident and at that time she was not present. The person who pledged the 'Tad', as admitted by her, was in the village and he has not been examined to identify that article So far as the other articles are concerned, her evidence indicates that she did not know at all to whom they belonged. She has made an omnibus statement that some persons had given silver to her husband for preparing those ornaments, and as admitted by her, she was not present when these ornament were prepared. In these circumstances, the identity of the articles has not been established even assuming that they were recovered from the possession of the accused persons.
13. The clear ether evidence en which some reliance is placed by the prosecution is the recovery of the (sic) Sukhveer Singh. That gun admittedly belongs to Jagmal Singh who was one of the accused persons in this case. There is no evidence that this gun was used in the commission of the offence except relying upon the circumstance that empty cartridges that were found at the scene of accidence, could have been filed by this gun. That vetted is not conclusive. That apart, the story of it cover of gun it self bristles with improbabilities and no reliance could be placed on that evidence.
14. The only other evidence relates to the identification of the accused by the witnesses. The evidence of identification figures a geed deal in both criminal & civil matters. In identification, we have two sorts of evidence of fact & the expert's evidence. Ore is a question of obscener, & the other of competency, In this case we are not concerned with the expert's evidence. Evidence of fact is a question of one's impression and the opportunity of forming any such impression. If one has known a person from before, the opportunity is all the time there, and the fact of recognition from former knowledge confines the question on identity merely to the credibility that may be attached to the evidence of the witnesses. But if it is a case of seeing a stranger, the fact of identity becomes a hazardous matter and it has been well said that even if the veracity of the witness is above all suspicion, the evidence of identity based on personal impression should be approached with considerable caution. Much really depends upon the opportunity the witness had of forming his impression; & for how long the perception lasted & in what circumstances. The memory of the witness may be faulty. The tricks of the memory, its conscious and unconscious activity also wrap the vision of the man. A witness may have been able to fern his own impression about the object, but still if he were to compare that impression of his with others, who too had seen it, his two impression well get mixed up with that others tell him, and so viable is the mind of man that in the end one can very well adopt others impressions and consider that impression to bare been truly formed and would swear about it in all earnestness. Again, calm minds view a thing better than en optionally stoned persons. The question of eyesight is there; whether a witness has a normal eyesight or is a short-sighted or long sighted. Some witnesses are color-blind and others moon blind. All these matters and more have to be con side red when the case of a person hangs on the identification of a witness to them that person is a complete stranger If mistakes are possible in the recognition of a person whom one knows from before, there is no end to such mistakes when the identity of a stranger is involved, On all evidence of feet, evidence about the identification of a stranger is perhaps the most elusive and the Courts are generally agreed that the evidence of identification of a stranger based on a personal impression should be approached with considerable caution. Identification made at night, during the occurrence, such as dacoit, when blows are struck and people are terrorized, and regarded generally of very little value, and as often said such evidence is unreliable Therefore, it is necessary that the evidence of identification should be approached in a careful and judicious manner and not in an unintelligent and wooden manner. Such an evidence should be entirely above board and should command confidence.
15. In this case, the evidence of the witnesses, who identified the accused in the identification parade, cannot be acted upon. No one including Chunni (PW. 8) had seen the culprits on the night in question. Even assuming they had seen them, it was for a short time. The only description Chunni gave at the earliest point of time was contained in Ex. P.1 that was with reference to the colour of clothes from that it is difficult to imagine how the accused could have been identified. It is no doubt true, that the description of the accused was given at the time of trial, no such description was given at any point of time earlier Even if their description had been given no court could have acted upon it. It is contended by the prosecution that there was moon light and the witnesses could have identified the culprits. Mode writes in his bock on Medical Jurisprudence that according to Troy, the best known person cannot be recognised in the clearest moonlight beyond a distance of seventeen yards. Quoting Colonel Barry, Modi states that at distances greater than twelve's yards, the stature or outline of the figure alone is available as a means of indemnification Therefore, the witnesses in this case, even if the saw the culprits, the could nothave identified them later in an identification parade. It is commended by one prosecution that the accused were kept in the jail with their faces covered, and even then the witnesses identified them in the identify idiom parade The tendency has grown these days for the prosecution to lead evidence that the accused was kept veiled when in the police custody and while led to and from the jail. But this sore of evidence is a mere formality since what resistance can the accused put up while in police custody to his being unveiled in the presence of witnesses and then sometimes he is taken unawares For the accused it is a matter of sheer luck. One cannot expect such honesty with the police that provided they have the opportunity and the witnesses are available at the right time and place, the would desist from showing the accused to them for identification later on. In this case the witnesses had an opportunity to see the accused before the identification parade was held. At any rate, even according to the prosecution, Rukamdeen (PW. 5) had also gone along with ainarayan Singh (PW. 17) for tracking the accused and he was presents when they were arrested He was also a witness in the identification parade. This itself is sufficient to discard the evidence of identification.
16 Mr. (sic), C.B.E., M.A. in his book Wills' Principles of Circumstantial Evidence, has mentioned one very remark bit case of disputed identity. Storrs A Mr. of Gorse Hall, in Cheshire, was murdered in his own house about 9 P M., on November 1st, 1908 The murderer was seen in the kitchen by the cook, who hid a good opportunity of noticing him. Mr Storrs, hearing a noise, came out of the dining room into the passege, where he was immediately attack d by a man who grappled with him. stabbed him with a large wife in some fifteen or sixteen places, and effected his escape, leaving his victim bleeding and helpless on the floor. He was lifted on to a sofa, where he died in a few minutes without having been able to say a word The assault took place near a limp and was witness d by his wife, his niece, aid two servants who all swore with more or less confidence to the identity of the murderer with the man who was being tried, and they had been very near him. He, however, successfully established an alibi and was acquitted.
17. A few months later suspicion fell upon another man said 'o resemble the man who had been acquitted, and he was put upon his trial. The same witnesses had of course, to be called Their evidence could not, however, come to much more than that hue was such similarity and they might have mistaken the one for the other The general evidence was of of a cogent kind, and an alibi was set up on this occasion also. Though the authorities could scarcely do otherwise than prosecute, there never could have been much chance of a conviction and the second prisoner also was a quitted.
18. We would like to mention another. instant. Dr. Hans Gross, in his book on Criminal Investigation, relates an incident where he himself was present. It was the scene of an executioner for one reason or another wore gloves. After the execution the author asked four officials who were present about the colour of the executioner's gloves, three replied respectively, black, grey, white, while the fourth stoutly rant lined that the executioner wore no gloves, at all Yet all four were in close proximity to the scaffold; each replied without hesitation, and all four were perfectly confident that they made no mistake. Thus excitement, or fear or terror subvert the mind but there is another explanation also. The mind may be all the time riveted on the object or the incident that impresses one most, and thus a close detachment will follow in his observing other matters even though these happen simultaneously.
19. Therefore, taking into consideration the duration of time even if Ghunni (PW. 8) and other persons who came hearing the cries saw the culprits running away & in that process they were able to see the colour of the clothes, even then that could not have provided sufficient material to identify the culprits. Identification is a vexed question, which is difficult to answer.
20. On considering the entire evidence we are of the view that what the prosecution in this case has established is that some persons entered the house of Ramchandra on the night in question, one of the culprits shot and killed Ramchandra When people of the village including Chunni raised an alarm, the culprits ran away. The story of the prosecution that these persons committed theft of silver ornaments in the house is a story concocted to implicate the accused.
21. For the reasons stated above, we allow this appeal, set aside the convictions and sentences passed against the accused and acquit them and direct that they be set at liberty forthwith.