Dacoity - 14-15 members - Newmoon night - Pitch dark - wintesses at panik - Identification of Accused from a distance of 3 1/2 yards - 5/6 yards - unbelievable - Doubtful - Recovery also not proved -failed to prove that the stolen property was in the possession of the accused persons or that the accused had knowledge that the property was a stolen property or the accused persons had converted the stolen property. - mere plea taken by some of the accused that they known earlier to the prosecution witnesses and non examination of any witness in support of their claim - despite of it , the prosecution has to establish Identification of accused properly - in the absence of any other evidence like recovery of stolen jewellery or other articles strengthening the prosecution case, conviction cannot be based solely on the identification of the accused in the test identification parade. -when Serious doubts arise as regards identification of the accused regarding complicity of the appellants in the commission of dacoity and their identification by the witnesses and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and in our view, the conviction of the appellants under Section 396 IPC cannot be sustained and is liable to be set aside.- 2015 S.C. MSKLAWREPORTS


  
on the  intervening  night  i.e.
on 21/22.09.1979, the complainant-Patia Singh  (PW1)  was  sleeping  in  his
house.  His brothers Saran Singh,  Sukhbeer  Singh  and  his  children  were
sleeping in their house.  Both the houses were adjacent to each  other.   In
the midnight at about     1.00 o’clock, PW1-Patia Singh heard the  noise  of
gun firing and in the light of torch, he  saw  that  in  the  house  of  his
brother Saran Singh, about 14-15 dacoits were looting the property and  that
two of them on the roofs and two dacoits were standing on the  gate  holding
guns and they were continuously  firing.   All  the  inmates  of  the  house
witnessed the incident in the torch light and electric light emanating  from
tube well.  On raising alarm, the villagers came out to help them  and  they
were carrying torches and they warned the dacoits  from  behind  the  walls.
When Saran Singh tried to control the dacoits, the dacoits opened  fire  and
he was shot dead. The miscreants looted the articles in about one  and  half
hours and fled away from the scene.

it is unbelievable that on a  new  moon  night
when it was pitch dark, the witnesses  who  were  frightened  and  who  were
hiding themselves behind the walls in order to save themselves,  could  have
seen actual faces of the accused persons just by flash of  torch  lights  on
their faces and in the light of lantern.  Further, there  were  about  14-15
dacoits in number, all armed  with  deadly  weapons  and  were  continuously
making ingress  and  egress  in  the  house  of  the  deceased,  it  becomes
inconceivable as to how the witnesses standing at a  distance  in  a  feeble
light would have been able to identify the dacoits.

When the witnesses in a panicky state and standing at  a  distance  of
three and half  yards  and  five-six  yards,  it  is  doubtful  whether  the
witnesses would have gained enduring  impression  of  the  identity  of  the
accused.
 In the commission of offence  of  dacoity,  identification  becomes
susceptible to errors and miscarriage of justice.
 In order to bring home the guilt of the accused  persons,  it  is  the
duty of the prosecution to  prove  that  the  stolen  property  was  in  the
possession of the accused persons or that the  accused  had  knowledge  that
the property was a stolen property or the accused persons had converted  the
stolen property.  No such recovery was made to connect  the  appellants  and
other non-appealing accused persons with the crime.

  In the trial court, on behalf of some of the accused persons,  a  plea
was taken that some of the accused were known to the witnesses and that  the
accused are resident of Jayee village  and  Buksar  village  and  are  doing
cultivation  and  that  the  accused  are  known  to  the   witnesses.   The
prosecution witnesses having known to the  accused  earlier,  the  witnesses
are residents of village Etmadpur and used to take the bus at village  Jayee
and at village Khajoori bus stand.   The  courts  below  observed  that  the
identification of the appellants cannot be discarded merely  on  the  ground
that the appellants and accused Kishnu reside  in  the  village  Buksar  and
that the witnesses knew the accused long  before.   The  accused  could  not
adduce evidence to  substantiate  the  defence  plea  that  the  prosecution
witnesses had known  the  accused  earlier.   Non-adducing  of  evidence  to
substantiate the defence plea by the accused  seems  to  have  substantially
weighed in the mind of the trial court to accept the prosecution case.

 Courts below based the  verdict  of  conviction  solely  on  the  oral
testimony of PW1 to PW3 and the identification of the appellants  and  other
non-appealing accused in  the  test  identification  parade.   As  discussed
earlier, in the absence of  any  other  evidence  like  recovery  of  stolen
jewellery or other articles strengthening the prosecution  case,  conviction
cannot be based solely on the identification of  the  accused  in  the  test
identification parade. Serious doubts arise  as  regards  identification  of
the accused regarding complicity of the  appellants  in  the  commission  of
dacoity and their identification by the witnesses and  the  prosecution  has
failed to prove the guilt of the accused beyond reasonable doubt and in  our
view, the conviction of the appellants  under  Section  396  IPC  cannot  be
sustained and is liable to be set aside.

Conviction of the appellants under Section 396 IPC  and  the  sentence
imposed on them is set aside and this appeal  is  allowed.   The  appellants
are ordered to be set at liberty forthwith unless they are required  in  any
other case.- 2015 S.C. MSKLAWREPORTS

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