Judgment

CHANDRACHUD, CJI. :- Eleven persons were tried by the learned Sessions Judge, Fatehpur, principally for offences under Sections 302 and 396 of the Penal Code. One of them, Manohar, was acquitted while the remaining 10 were sentenced to death. By a judgment, which leaves much to be desired, the High Court of Allahabad. set aside the order of conviction and sentence and acquitted all the accused. These appeals are by the State of U. P. against the order of acquittal recorded by the High Court.

2. In support of the charges levelled against the accused, the prosecution relied upon the evidence of five witnesses who claim to have identified them. These witnesses are: Sundi (P. W. 1), Shea Nandan (P. W. 12), Ram Bali (P. W. 18), Mani Prashad (P. W. 19) and Sham Behari (P. W. 27). In addition to the evidence of these eye witnesses, the prosecution relied upon certain recoveries made from or at the instance of the accused and the evidence of the Ballistic Expert, Shariq Alvi (P. W. 32).

3. The occurrence took place at about midnight between the 28th and 29th Oct., 1970 in a village called Chak Quazipur. Four persons, Ayodhya, his two sons Amar Singh and Kanchan, and a neighbour Thakurdin, who were sleeping in the open space in front of their house, were shot dead on that night by a large group of thirteen or fourteen persons. Sundi, Ayodhyas wife, was sleeping inside the house with another child of theirs. She got up on hearing the sound of gun-shots but was unable for some time to go out of the house since the door was bolted from outside. In the meanwhile, some of the accused entered her house by jumping over the roof and assaulted her. They took away a gun, snatched her ear-rings and decamped with sundry articles from the house. Eventually, when she came out, she saw the dead bodies of her husband, their two sons and the neighbour Thakurdin. She lodged the First Information Report (Ex. Ka-1) on the afternoon of the 29th in which she mentioned the names of three accused : Durga, Sheo Balak and Mata Din.

4. The basic difficulty which we find in accepting the evidence of Sundi and the other four eye witnesses on the question of identification of the accused is that, according to these witnesses, as many as 14 or 15 persons had taken part in the four murders at dead of night. Every one was then soundly asleep and the people around woke up, according to their own evidence, either on hearing the sound of gunshots or the crying and wailing. Apart from the inherent difficulty involved in identifying a large group of 14 or 15 persons at dead of night in the light of a tiny kerosene lantern, it is highly unlikely that the accused would continue to remain at the scene of offence after committing the murders. The villagers undoubtedly collected at the spot, but that was after the event. The accused would certainly not tarry at the place for the villagers to arrive. We consider it improbable that in the circumstances narrated by Sundi, she would have the courage of rushing out of her house and that if she did so, the accused would still be at the place where the four, persons were lying murdered. Sundis evidence is clear on the point that the assailants had taken care to prevent her from coming out of her house by bolting the main door from outside. The three accused named and identified by Sundi are not the ones who had entered her house. They are those who are alleged to have participated in the shooting outrage outside, under the Neem tree.

5. The evidence of identification of the accused in the identification parade suffers from the notorious infirmities from which evidence of that nature often suffers. Indeed, if the circumstances of the case exclude the possibility of the villagers arriving at the scene of offence before the accused fled away, the evidence of identification loses its significance. After all, you identify in a parade a person whom you have seen in the occurrence.

6. The gun, Exhibit 23, is alleged to have been recovered