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SUPREME COURT OF INDIA
J.M. SHELAT, I.D. DUA AND S.C. ROY, JJ.
Hasib, Appellant
Versus
The State of Bihar, Respondent.
Criminal Appeal No. 19 of 1967, D/- 23-8-1971.
Advocates appeared
Mr. U. P. Singh, Advocate, for Appellant; Mr. D. Goburdhun, Advocate, for Respondent.
Indian Penal Code, 1860 - Section 395, 307 and 398, - Constitution of India, 1950 - Article 136 - Indian Evidence Act, 1872 - Section 157 and 145 - Criminal Procedure Code, 1973 - Section 288 - Loss of Property - Dacoity – Appeal Against Conviction - Whether his testimony relating to identification of appellant provides evidence which, according to settled principles, can be considered sufficient for sustaining his conviction - Whether or not appellant was included in suspects to be identified – Held, Legal position as to object, value and use of first information report is well settled - Principal object of first information report from point of view of information is to set criminal law in motion and from point of view of investigating authorities is to obtain information about alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book guilty party - First information report, Court may point out, does not constitute substantive evidence though its importance as conveying earliest information regarding occurrence cannot be doubted - But otherwise too identification proceedings in present case do not inspire confidence - It appears that several test identification parades were held for identifying the accused persons - So far as present appellant is concerned P. W. 10 appears to have identified him though appellant had been arrested as early - Now, identification parades are ordinarily held at instance of investigating Officer for purpose of enabling witnesses to identify either properties which are subject-matter of alleged offence or persons who are alleged to have been concerned in offence - Such tests or parades belong to investigation stage and they serve to provide investigating authority with material to assure themselves if investigation is proceeding on right lines - Evidence of P. W. 13 is also somewhat unsatisfactory and Court is far from impressed by his testimony with respect to precautions taken by him for fair test identification parades - In his cross-examination a suggestion was thrown that there was some kind of interpolation in his report of first T. I. parade held from which it could be suspected that appellant was present in that parade but was not identified by P. W. 10 - High Court has in its judgment accepted argument raised on behalf of accused that they were produced in court and has expressed its opinion that possibility of P. W. 8 and P. W. 10 seeing accused persons in court could not be entirely eliminated - This circumstance in Court view, further weakens value of appellant s identification - There is, however, also another aspect which requires to be noticed - Now, if P. W. 10 had recognised appellant at time and place of occurrence as one of the two dacoits hailing from village Banaudha then clearly identification test of appellant by this witness can be of little value because accused was already known to witness - In that event there is no question of identification parade being used as corroborative evidence supporting his identification in court - As a result of foregoing discussion Court find that there is no legal evidence connecting appellant with alleged offence in question and Court have, therefore, no hesitation in acquitting him - Appeal allowed.
Judgment
DUA, J.:- Five persons were tried in the Court of the Additional Sessions Judge, First Court, Monghyr for charges under Section 395, 307 and 398, Indian Penal Code. All of them were convicted under Section 395, Indian Penal Code and acquitted of the charge under Sec. 398, Indian Penal Code. Accused, Akal Yadav, was in addition convicted under Section 307, Indian Penal Code and was sentenced to undergo rigorous imprisonment for life under each count. The other accused persons were sentenced to undergo rigorous imprisonment for ten years each under Section 395, Indian Penal Code.
2. On appeal the High Court set aside the convictions of Akak Yadav, Anandi Yadav and Ashique Mian and allowing their appeals acquitted them. The convictions and sentences of Sheikh Hasib alias Tabarak, the appellants in this court and of Sheikh Quddus alias Khudwa were maintained. Sheikh Hasib alias Tabarak alone has appealed to this Court with special leave under Article 136 of the Constitution.
3. According to the prosecution case, on January 28, 1963 at about 7.45 p.m. several dacoits had collected on P. W. D. road near Telia Talab, Monghyr Police Station mofassil and committed dacoity in respect of the properties of a number of passersby Ganesh Prasad (P. W. 1) and his brother Kamleshwar Tanti (P. W. 2) who were going together on a cycle from Monghyr to their village Nawagarhi were held up by about 15 dacoits and were deprived of several valuable articles like watch, cycle, shirt muffler and money. Those articles were forcibly snatched from them on threat of violence. They were then made to sit on one side, away from the main road. When they were sitting there, Thakur Prasad Choudhary (P. W. 6), resident of village Garhi Rampur and Mukhia of the village Panchayat and Ram Baran Mandal (P. W. 3) also happened to come on a rickshaw from Monghyr side and while passing by the place of occurrence they too were intercepted by the dacoits and deprived of their properties. A woman named Dayabati Devi (P. W. 4) and one Prayag Narain Gupta (P. W. 5), a homeopath doctor, who also happened to pass that way in a rickshaw were also attacked by the dacoits and forcibly deprived of their belongings. In the meantime Ram Baran Mandal (P. W. 3) and Thakur Prasad Choudhary (P. W. 6) somehow managed to escape in their rickshaw. When they reached Telia Talab crossing from where one road goes towards Jamalpur and another towards Bariarpur and the third one towards Monghyr, they saw a jeep car standing there with three Police Officers in uniform, a Sub-Inspector of Police (Deo Dutt Prasad Varma, P. W. 8) and an Inspector of Police (Jadunandan Singh, P. W. 10) along with driver-constable (Bansidhar Singh, P. W. 9). Thakur Prasad Choudhary, Mukhia, narrated to them the occurrence of dacoity and the loss of his property and told them that the decoits were still busy in their nefarious activities. After giving this information he accompanied those officers in the Jeep to the place of occurrence. Ram Baran (P. W. 3) went away towards his village. Thakur Prasad Choudhary pointed out to the Police Officers the place of occurrence as soon as it became visible in the light flashed by the headlights of the Jeep. The jeep stopped near the place of occurrence and it is alleged that more than eight dacoits were found present at the spot. The Inspector (P. W. 10) ordered the constable to get down and arrest the dacoits. Pursuant to this order Bansidhar, constable, got down from the jeep but one of the dacoits aimed a lathi blow at him. When the other occupants of the jeep tried to get down one of the dacoits fired at them hitting both the Inspector and the Sub-Inspector causing them bleeding injuries. The jeep then drove away towards Monghyr in order to get the Sub-Inspector and the Inspector (P. Ws. 8 and 10) treated in the hospital. While passing in front of the Police Station of Monghyr on their way to the Sadar Hospital, the Sub-Inspector and the Inspector informed the Policem
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