The court reinforced that identification evidence must meet rigorous standards, especially under poor visibility, to support a conviction beyond reasonable doubt.

JUDGMENT :

BIBEK CHAUDHURI, J.

1. This Criminal Appeal has been filed by the three appellants, namely, Sham Mohammad Nut, Taslim Nut and Batahu Nut, challenging the judgment of conviction and order of sentence dated 17th November, 1995 passed by the learned 2nd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 387 of 1994 (arising out of Ahiyapur P.S. Case No. 120 of 1993, G.R. No. 1646 of 1993). By the said judgment, each of the appellants was found guilty for the offence punishable under Section 396 IPC (dacoity with murder) and was sentenced to undergo rigorous imprisonment for life.

2. The prosecution story originates from an occurrence of dacoity coupled with homicide which took place in the intervening night of 12th/13th July, 1993 at about 12:30 a.m. at the residential house of the informant BaijnathSah of village Mustafapur, P.S. Ahiyapur, District Muzaffarpur. During the course of that incident, a minor child aged about 8 years, namely Amod (Amod Kumar) nephew of the informant sustained a grievous head injury caused by a sharp-edged weapon (a Barchi) and succumbed thereafter.

3. On the basis of the Fardbayan of BaijnathSah recorded on 13.07.1993 at 07:00 a.m. at his house by SI Digamber Prasad, O/C Ahiyapur P.S., Ahiyapur P.S. Case No. 120/93 was registered under Section 396 IPC . Investigation was immediately taken up, accused persons were thereafter arrested and, on completion of investigation, a charge-sheet was submitted against the present appellants.

4. The learned Chief Judicial Magistrate, Muzaffarpur committed the case to the Court of Session on 11th July, 1994. The case was subsequently transferred to the learned Additional Sessions Judge-II, Muzaffarpur. Charges under Section 396 IPC were framed against the three accused. They pleaded not guilty and claimed to be tried.

5. The prosecution, in support of its case, examined fifteen witnesses including the informant, eye-witnesses (family members and villagers), the Investigating Officer and the doctor who conducted the post-mortem. Documentary material placed on record comprised of the Fardbayan (FIR), inquest report, seizure lists, post-mortem report and related papers. Some prosecution witnesses, at various stages, were declared hostile or gave evidence which contained infirmities.

6. The learned trial Judge, after appreciation of the evidence, recorded findings of fact and convicted the appellants under Section 396 IPC and sentenced them to rigorous imprisonment for life. Aggrieved by the conviction and sentence, the appellants preferred the present appeal.

7. The principal grounds urged in the appeal may be summarized as follows:

(a) The identification of the appellants is doubtful, unsafe and inconsistent across various witnesses; identification was said to have been made at night, in partial torchlight only, which were allegedly lit would not be possible to identify the miscreants against the torchlight.

(b) There exist material contradictions and omissions between the Fardbayan, statements recorded under Sections 161/162 Cr.P.C. and the depositions of the witnesses in Court.

(c) Several witnesses either turned hostile or did not support the prosecution in material particulars.

(d) The prosecution evidence contains alleged exaggerations and improvements made in Court, not contained in earlier statements.

(e) The learned trial Court misdirected itself in convicting the appellants without proof beyond reasonable doubt and by over-relying on questionable identification testimony.

8. The prosecution case, in the first instance, is set out in the Fardbayan made by the informant Baijnath (Baij Nath) Sah, recorded on 13.07.1993 at about 07:00 a.m. at his house by SI Digamber Prasad, O/C Ahiyapur Police Station. On the basis of that Fardbayan, Ahiyapur P.S. Case No. 120/93 (registered for commission of offence under Section 396 IPC ) was instituted.

9. The Fardbayan describes the incident as having occurred in the intervening night of 12/13 July 1993 at approx