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1985 Supreme(Pat) 97
HIGH COURT OF PATNA
S. N. Jha, J.
Lakshmi Sharma alias Nagar
Ganesh Sharma and another – Appellants
Versus
The State of Bihar – Respondent
Criminal Appeal Nos. 333 and 356 of 1977
Decided on : 19.3.1985
For the appellants (in both the appeals) : M/s Nagendra Prasad Singh & Arun Kumar Singh No.2.
For the Respondents (in both the Appeals): Mr. A. K. Mouar,
A conviction cannot be based solely on the identification of a single witness after a lapse of a long time or solely on the confession of a co-accused.
Headnote:
CRIMINAL APPEAL - SECTION 395 OF THE INDIAN PENAL CODE - IDENTIFICATION OF ACCUSED - SOLE IDENTIFICATION AFTER LAPSE OF TIME - CONVICTION BASED ON SOLE IDENTIFICATION - CONFESSION OF CO-ACCUSED - CONVICTION BASED SOLELY ON CONFESSION OF CO-ACCUSED.
Fact of the Case:
The appellants were convicted under section 395 of the Indian Penal Code for dacoity. The prosecution's case was that the appellants, along with other unidentified persons, had stopped the informant's car, assaulted him, and robbed him of his belongings. The appellants were identified by the informant in a test identification parade held about four months after the incident. The appellants denied the charges and claimed that they were falsely implicated.
Finding of the Court:
The court found that the conviction of the appellant in Criminal Appeal No. 333 of 1977 could not be sustained as he was convicted solely on the identification of a single witness after a lapse of a long time. The court also found that the conviction of the appellants in Criminal Appeal No. 356 of 1977 could not be sustained as they were convicted solely on the statement of a co-accused.
Issues: 1. Whether the conviction of the appellant in Criminal Appeal No. 333 of 1977 could be sustained based on the sole identification of a single witness after a lapse of a long time? 2. Whether the conviction of the appellants in Criminal Appeal No. 356 of 1977 could be sustained based solely on the statement of a co-accused?
Ratio Decidendi: 1. The court held that the conviction of the appellant in Criminal Appeal No. 333 of 1977 could not be sustained as the identification was made after a lapse of about four months and there was a reasonable possibility of mistake in identification. 2. The court held that the conviction of the appellants in Criminal Appeal No. 356 of 1977 could not be sustained as there was no other evidence against them besides the statement of a co-accused.
Final Decision: The court allowed both appeals, set aside the convictions and sentences of the appellants, and acquitted them.
Surendra Narain Jha, J.- Both these appeals have been heard together as they arise out of the same JUDGMENT : and they are being disposed of by this common JUDGMENT :.
2. In Criminal Appeals No. 333 of 1977, the sole appellant has been convicted under section 395 of the Indian Penal Code (for short 'the Penal Code') and has been sentenced to undergo rigorous imprisonment for ten years.
3. In Criminal Appeal No 356 of 1977, there are two appellants, who have been convicted under section 395 of the Penal Code and have been sentenced to undergo rigorous imprisonment for ten years each.
4. The prosecution case, briefly stated, is that in the night between 5/6th July, 1967, at about 1 A.M., the informant Major Ved Prakash Nijhwan (P.W. 1) with his wife (P.W. 2) and a servant (not examined) were going towards Purnea from Bhagalpur in his car bearing Registration No. B. R. L. 3. When the said car reached in between mile post nos. 50-51 on the National High Way No. 31, the informant found the road blocked with boulder lying on the road as a result of which the informant (P.W, 1) had to stop his car. Within a minute, he saw about twenty persons armed with lethal weapons and country-made pistols coming from the right flank ditch who surrounded his car. The informant tried to runaway with his car in back gear, but he failed in his attempt. The miscreants broke the wind-shield and caught the informant (P.W. 1) and one of them assaulted him with a small hammer on his right shoulder. In the meantime, the miscreants took out the articles from his car including a wrist watch of his wife, (P.W. 2) and money. It is said that shortly thereafter one truck was seen coming from the opposite direction and then the miscreants fled away with the aforesaid wrist watch and money, in a boat. The informant, thereafter, along with the truck driver (not examined) went to Gogri police station and lodge a written report (Ext 1) about the occurrence. It Was stated in the report that the informant (P.W. 1), his wife (P.W 2) and the servant (not examined) could not identify the miscreants. On the basis of the aforesaid written report, the police drew up a formal first information report and instituted a case against unknown persons. During the course of investigation, the house of-accused Kishun Gorhi and Sitaram Nagar (not appellants before me) were searched and some stolen articles were recovered, which were identified by the informant and his wife as belonging to them. In course of investigation, the police arrested one Sitaram Sharma alias Sitaram Nagar (not appellant before me), who confessed his guilt and named some persons, who had participated in the alleged dacoity. The police, after completing the investigation, submitted chargesheet on 3.1.1969 against seven persons including these three appellants of both these appeals. The Sub-divisional Magistrate took cognizance and after enquiry under Chapter XVIII of the Code of Criminal Procedure, 18')8 committed the same case to the court of session directing the appellants and four other accused to stand their trial. The case was tried by the learned Assistant Sessions Judge, 3rd Court, Monghyr, who, after considering the evidence on record, convicted all the seven accused persons including these three appellants of both these appeals under section 395 of the Penal Code and sentenced each of them to undergo rigorous imprisonment for ten years. Two of the accused persons, namely, Sitaram Nagar and Kishun Gorhi, were further convicted under section 412 of the Penal Code and were sentenced to undergo rigorous imprisonment for five years each. I am not concerned in these two appeals with the convictions and sentences of accused presons other than these appellants, before me.
5. The prosecution; in ORDER :to prove its case, has examined, in all seven witnesses. Out of them P.W. 1 is the informant himself. P.W. 2 is the informant's wife, who was accompanying him in the car at the time of alleged occurrence.
