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ALLAHABAD HIGH COURT
P. N. BAKSHI, CHANDRA PRAKASH, JJ.
ALI HASAN AND OTHERS
VERSUS
STATE
Criminal Appeals Nos. 373, 437 and 778 of 1970,
Decided On : 8 -1 -1974
CRIMINAL APPEAL - DAOCITY - IDENTIFICATION OF ACCUSED - SUFFICIENCY OF LIGHT - OPPORTUNITY TO RECOGNISE - INDIVIDUAL CASES OF ACCUSED - IDENTIFICATION PROCEEDINGS - FAIRNESS AND PRECAUTIONS - RELIABILITY OF IDENTIFICATION - DEFENCES OF ACCUSED - CONSIDERATION AND REJECTION - CONVICTION AND SENTENCE - CONFIRMATION AND MODIFICATION.
Fact of the Case:
A dacoity was committed at the houses of Jai Prakash and Hari Singh in the night between 27/28th October, 1969. As a result of fire-arm injuries received by Kumari Santosh, she died in the hospital the next day. Several accused were arrested and put up for trial. The Sessions Judge convicted Ali Hasan, Sher Khan, Lakhan Singh, Ashraf and Ghulam Nabi for the offence under Section 396, I.P.C. and sentenced each of them to imprisonment for life. Shafiq Ahmad was convicted for the offences under Sections. 411, I.P.C. and 25. Arms Act and sentenced to 2½ years rigorous imprisonment and a fine of Rs. 200 on the first count and 1½ years rigorous imprisonment on the second count. Both the sentences were made to run consecutively.
Finding of the Court:
The court found that the dacoity was committed at the houses of Jai Prakash and Hari Singh in the night between 27/28th October, 1969 and that as a result of fire-arm injuries received by Kumari Santosh, she died in the hospital the next day. The court also found that the identification proceedings were fair and above board and that the identification of the accused by the witnesses was reliable. The court further found that the defences of the accused were not tenable.
Issues: 1. Whether the identification of the accused was reliable? 2. Whether the defences of the accused were tenable?
Ratio Decidendi: 1. The court held that the identification of the accused was reliable on the basis of the following factors: a. The witnesses had sufficient opportunity to recognise the accused in the light of the burning Phoos. b. The identification proceedings were conducted fairly and above board. c. The witnesses had not seen the accused in the period intervening between the commission of the offence and the identification proceedings. 2. The court held that the defences of the accused were not tenable on the basis of the following factors: a. The accused failed to produce any evidence to support their defences. b. The defences were contradicted by the evidence on record.
Final Decision: The court partly allowed Criminal Appeal No. 373 of 1970 and confirmed the conviction of Ali Hasan, Sher Khan and Ashraf for the offences with which they were charged. The court dismissed Criminal Appeal No. 778 of 1970 by Lakhan and confirmed the conviction and sentence imposed by the court below. The court also dismissed Criminal Appeal No. 437 of 1970 by Shafiq, with the modification in the sentence as noted above.
P. N. Bakshi, J.:- Ali Hasan, Sher Khan, Lakhan Singh, Ashraf and Ghulam Nabi have been convicted by the Sessions Judge, Bijnor for an offence under Section 396, I.P.C. and each of them has been sentenced to imprisonment for life. Shafiq Ahmad has been convicted by the same judgement and order dated 4th February, 1970 for the offences under Sections. 411, I.P.C. and 25. Arms Act and sentenced to 2½ years rigorous imprisonment and a fine of Rs. 200 on the first count and 1½ years rigorous imprisonment on the second count. Both the sentences have been made to run consecutively. Criminal Appeal No. 373 of 1970 has been preferred by Ali Hasan, Sher Khan. Ashraf and Ghulam Nabi. Criminal Appeal No. 778 of 1970 has been preferred by Lakhan and Criminal Appeal No. 437 of 1970 has been preferred by Shafiq Ahmad against their respective convictions.
2. Jai Prakash is a Police Constable, who during the relevant period was posted at Police Station Najibabad. He was on leave at his house in village Chehal on the date when the dacoity in question was committed. He lived in a portion of Haveli which is situate in village Chehal and which is inhabited by several other residents of the village. Hari Singh also lived in this Haveli.
3. The prosecution case is that at about mid-night of 27th/28th October, 1968 eight or nine dacoits armed with single-barrel guns, pistols, lathis and Tabals entered into the Haveli by breaking open its entrance door and by removing the door leaf of the Kotha of Jai Prakash. The dacoits fired twice towards the Kotha of Jai Prakash and made their entry. Jai Prakash also returned the fire twice. The dacoits fired back with the result that Jai Prakash and his 2½ years old daughter Kumari Santosh received gun-shot injuries. Jai Prakash and his wife on getting opportunity managed to run out of the Haveli. An alarm was raised by Jai Prakash which attracted a number of villagers who saw the dacoits in the light of the burning Phoos which was lying to the south of the Baithak of Dori Singh and was lit by him and which created immense light. It is said that the dacoits had torches which they flashed during the commission of the dacoity. The villagers had also torches which they were flashing at the dacoits. One of the dacoits was armed with a gun and he was keeping guard at the place were the dacoits were keeping the looted property. Another dacoit armed with a gun and a torch went on the top of the roof from where he fired several rounds. The dacoity lasted for about 45 minutes. After ransacking the house of Jai Prakash the dacoits also looted the house of Hari Singh. It is said that two of the dacoits Jagat Vir and Ved Prakash, who were known to the witnesses had covered their faces with Dhatas. During the commission of the offence in question their faces got uncovered which enabled their recognition. We are not, however, concerned with the cases of these two accused Jagat Vir and Ved Prakash because they had been acquitted by the Sessions Judge by the same judgement. After looting the aforesaid houses the dacoits made good their escape first towards the east and then towards the south.
4. A report of the incident was written out by Ved Prakash in the village the same night and lodged at Police Station Chandpur the next morning at 7 A.M. Ram Singh. Head Constable P.W. 7 prepared the First Information Report and he sent Jai Prakash and his daughter Kumari Santosh for medical examination. Dr. R.N. Pandey P.W. 10 examined both the injured at 8 and 8-20 A.M. respectively. He found seven injuries on the person of Jai Prakash which included contused wounds and abrasions. Injury No. 5 was five small gun-shot wounds on the back of the right fore-arm in the middle with swelling. The injuries of Jai Prakash indicated that the injuries received by him had been caused by lathis as well as by fire-arm, as is the case of the prosecution. Kumari Santosh had the following injury on her person :
Multiple gun-shot wounds varying from
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