Shambhu
Dayal Vs. Subhash Chandra & Ors [1998] INSC 112 (19 February 1998)
G.T.
Nanavati, V.N. Khare Nanavati, J.
ACT:
HEAD NOTE:
With criminal
appeal no. 177 of 1988
Both
these appeals, one by the State and the other by the original informant Shambhu
Dayal, are filed against the judgment and order passed by the Allahabad High
Court in Criminal Appeal No. 731 of 1987. The High Court acquitted all the six
respondents, who were convicted and sentenced to death by the court of
sessions, Pratapgarh in Sessions Trial Case No. 91 of 1978 for the offence
punishable under Section 396 IPC. Respondent Nos. 1, 2 and 4 were also
convicted under Section 412 IPC and sentenced to suffer five years rigorous
imprisonment.
Briefly
stated the prosecution case was that during the night intervening 12/13.10.1977
the six respondents along with one Dinesh committed dacoity in the house of Dal
Chand and in order to commit dacoity caused injuries to Manohari Devi, Bimla Devi,
Dayavanti, Pradeep, Sandeep, Anita, Dal Chand, Darshani Devi and Surji Devi,
out of whom as many six injured, namely, Manohari Devi, Bimla Devi, Dayavanti, Pradeep,
Sandeep and Anita lost their lives after some time.
It is
the prosecution case that during the investigation respondents Bhanu Pratap, Bhola,
Ramesh, Virender and Govind were identified by some of the prosecution
witnesses. It is also the prosecution case that respondent Subhash, Bhanu Pratap
and Ramesh were found in possession of stolen articles, which were discovered
at their instance.
In
order to prove its case the prosecution examined five eye witnesses - PW-2 to
PW-6 - and also led evidence regarding recovery of stolen articles. The trial
court believed the prosecution evidence, except against accused Dinesh, and
convicted the other accused.
All the
convicted accused challenged their conviction by filling an appeal. As they
were sentenced to death, a reference was also made to the High Court for
confirming the death sentence.
The
High Court held that the evidence of the eye witnesses regarding identification
of the accused was not believable and so also the evidence regarding recovery
of stolen articles at the instance of accused Subhash, Bhanu Pratap and Ramesh.
It, therefore, allowed the appeal filed by the accused and acquitted all of
them. Aggrieved by their acquittal State has filed Criminal Appeal No. 177 of
1988 and the original information Shambhu Dayal (PW-4) has filed Criminal
Appeal No. 178 of 1988.
The
fact that dacoity took place in the house of Dal Chand (PW-3) is not in
dispute. It is also not in dispute that in order to commit the dacoity the
dacoits had caused injuries to the aforesaid persons, out of whom six lost
their lives because of the injuries received by them. What is now left to be
considered is whether the evidence regarding identification of the accused and
recoveries is so reliable that conviction of the accused ought to have been
upheld by the High Court. It was contended by the learned counsel for the State
that accused Subhash was known to the witnesses as he was of the same village
and residing nearby and the other accused except Dinesh were identified by more
than two witnesses in the identification parade held on 11.12.1977. PWs-2 to 6
have stated in their evidence that in view of the frequent thefts that were
taking place in the village 60 watt bulbs were kept burning in the three rooms
in which they were sleeping and there was also a burning lamp in the court-yard
and therefore they were able to properly see the accused. Dal Chand (PW-3) and Darshani
Devi (PW-5) have further deposed that when accused Subhash tried to assault Dal
Chand (PW-3) he was recognised by Dal Chand and he had also uttered the words
`Are Subhash Tum'. The High Court disbelieved their evidence because PW-6 Krishan
Chandra, who was an inmate of the house and had claimed to have seen all the
dacoits in light of the electric bulb which was burning in the court-yard, had
not named Subhash as one of the dacoits in the FIR. Other intimates of the
house had also not named him in their police statements. The High Court has
also observed that if Dal Chand (PW-3) had really recognized accused Subhash
then he would have disclosed that fact to his relatives in the hospital on
14.10.1997 when he had regained consciousness. The High Court also found his
version that immediately after he was discharged from the hospital on
14.10.1977 he did not go to his village but remained at his aunt's place was
not believable in view of the seriousness of the incident that had happened. No
further treatment was required to be taken at the hospital and therefore there
was no reason for him to remain at his aunt's place and not to proceed to his
own village. The High Court also doubted correctness of the evidence of the
Investigating Officer who had stated that on 14.10.1977 he had visited the
hospital but the condition of Dal Chand (PW-3) and Darshani Devi (PW-5) was not
good and therefore he could not record their statements. The High Court has
observed that if Dal Chand's (PW-3) condition was not good he would not have
been discharged from the hospital. Darshani Devi (PW-5) had also disclosed the
name of accused Subhash for the first time on 18.10.1977. She has stated that
after receiving a blow from one of the dacoits she had become unconscious and
regained consciousness only on 18.10.1977. The High Court disbelieved that part
of her evidence because Dr. A.K. Jain (PW-9) has categorically stated in his
evidence that on 13.10.1977 when he had examined PW-5 her condition was not
serious and she was conscious. The High Court, therefore, held that if accused Subhash
was one of the dacoits and if there was enough light then the eye witnesses
would not have failed to identify him and give his name as one of the dacoits
at the earliest point of time, and as his name was not disclosed till
18.10.1977 that indicates that they had really not seen him in their house at
the time of the incident.
The
evidence of recovery at the instance of accused Bhanu Pratap and Ramesh was not
believed as the independent witnesses in whose presence they were alleged to
have made the statement and recovered the articles did not support the
prosecution. As regards discovery of pant, bushirt and ring (Exh. - 2,3, &
4) at the instance of accused Subhash, the High Court held that though PW-1
supported the prosecution, the evidence in that behalf was so unnatural and
improbable that it did not deserve acceptance. The High Court held that it was
highly improbable that accused Subhash while committing the dacoits would have
taken away bushirt and pant and buried them along with the golden ring in the
court-yard of his house. The High Court also found it improbable because he
would not have taken the risk of burying the stolen articles in his house as it
was only a few yards away from the house of Dal Chand particularly when,
according to the prosecution, he was recognised by Dal Chand.
The
High Court also doubted the evidence relating to identification of the accused
at the identification parades as Dr. Achchan, who was also an eye witness but
not examined by the prosecution and was examined as a court witness, has stated
that the Investigating Officer had shown the accused to him before the
prosecution started. He has further stated that he was tole and pressurized by
the Investigating Officer to identify the accused. He has also stated that at
the time when the accused were shown to him PW-2, Parvati, was with him. The
High Court also took notice of the fact that for seven days the accused were
kept in the police station of village Antoo at a distance of only one furlong from
the house of Dal Chand (PW-3). The High Court, therefore, held that there was
every possibility of the eye witnesses seeing the accused when they were in the
police station or the accused being shown to them. The High Court, therefore,
set aside their conviction and acquitted them.
It was
contended by the learned counsel for the State that the High Court committed a
grave error in discarding the evidence of Dal Chand (PW-3) and Darshani Devi
(PW-5) as regards the identification of accused Subhash merely on the grounds
that his name was not mentioned in the FIR and that they disclosed his name to
the police on 18th that is after five days. He also submitted that the evidence
of the Investigating Officer and other Police Officers in whose custody the accused
had remained, from the time they were arrested till the identification parades
were held, have clearly stated that as soon as the accused were taken in
custody they were kept Baparda throughout and, therefore, it was to at all
proper to hold that there was a possibility that the accused were seen by the
witnesses or were shown to them before they were put for identification at the
identification parades.
From
the evidence it clearly appears that condition of Dal Chand was quite good on
14.10.1977 and, therefore, he was discharged from the hospital. The High Court
was, therefore, right in holding that the Investigating Officer was not telling
the truth when he stated that he could not record the statement of Dal Chand on
14.10.1977 as his condition was not good. So also the explanation of the
Investigating Officer regarding late recording of the statement of Darshani Devi
(PW-5) has ben rightly not accepted. Even if late recording of their statements
is considered only as an act of negligence on the part of the Investigating
Officer, the fact remains that they had not disclosed the name of Subhash till
18.10.1977 to any one.
That
creates a serious doubt regrading their having identified Subhash as one of the
dacoits. One of the prosecution witnesses has stated that it was suspected by
the village people right from morning of the next day that Subhash and his
associated has committed the dacoits. It appears that because of suspicion Subhash
was involved for the first time on 18.10.1977. It is not believable that in all
the rooms in which intimated of the house were sleeping and also in the
courtyard 60 watts electric bulbs were kept burning. The evidence regarding
discovery of bushirt, pant and ring by Subhash was rightly rejected by the High
Court as it was not probable that while committing dacoits Subhash had taken
away clothes also along with the golden ring and buried them in the courtyard
of the house. In our opinion, the High Court has given good reasons for not
accepting the evidence of PWs.3 and 5 as regards identification of accused Subhash
and discovery of pant, bushirt and ring (Exh.2, 3 and 4) of PW-3 and the
findings recorded by it do not call for any interference.
Accused
-2, Bhanu Pratap was identified by PWs- 2, 3, 4, and 6 at the identification
parade held on 11.12.1977.
Accused
- 3 was identified by PWs - 3 and 6. Accused - 4 was identified by PWs-2 and 3.
Accused - 6 was identified by PWs-3 and 6. A-7 was identified by PWs-2, 3, 4
and 6. PW -3 was sleeping along with his wife Darshani Devi on the first floor
of the house in a separate room. PW-2, Parvati Devi was sleeping along with her
grand-mother Manohari Devi in one of the rooms on the ground floor on the
western side of courtyard. According to her evidence she woke up and heard a
loud shout raised by her grand-mother. She saw 4-5 persons in the room. On of
the dacoits assaulted on the heed of her grand-mother with an axe. Other
dacoits were having boxes in their hands. She was given a blow by an axe by one
of the dacoits and, therefore, she had become unconscious. From her evidence it
becomes clear that she had seen the dacoits for a very short time yet she
identified A-2, A-4 and A-7. It is difficult to appreciate how these accused
were seen by PW-3 Dal Chand in his room situated on the upper floor of the
house and also by PW-2 Parvati Devi, who was sleeping in one of the rooms on
the ground floor. Both these witnesses have stated that immediately after they
woke up they were assaulted and had become unconscious. The evidence also
discloses that as soon as shouts were raised the dacoits who had gone up on the
first floor came down and left the house from its back side along with those
who were on the ground floor. Therefore, their evidence that they had seen
those dacoits and so they were able to identify them at the first
identification parade becomes doubtful. This conclusion receives support from
the evidence of Dr. Achchan who was stated that no one was identified at night
and after the accused were arrested they were shown to him and Parvati. In view
of this infirmity in the evidence regarding identification it was not safe to
place any-reliance upon the identification of A-3 and A-6 by PW-6 also.
Moreover, his presence at the time of dacoits was also doubtful as he was not
noticed by Dr. Achchan nor his name was mentioned in the complaint given by
PW-4 Shambhu Dayal. The evidence discloses that on that day Ram Lila was being
performed in that village and it was going on at the time of dacoits.
As we
find that the High Court has given good reasons for rejecting the prosecution
evidence and acquitting the accused, no interference is called for by this
Court. These appeals are, therefore, dismissed.
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