Saroj Bala, J.@mdashThis criminal appeal is directed against the judgement and order dated 25.10.1982 passed by the IV Additional Sessions Judge, Bijnor in consolidated Sessions Trial Nos. 14, 234, 371 of 1980 and 12 of 1982 whereby convicting the accused-appellants Saghir, Yaqoob, Rehmu, Zameer and Qamaruddin alias Qamru for the offence u/s 396 I.P.C. and sentencing each of them to rigorous imprisonment for lite with fine of Rs. 3000/- with default clause. Out of the fine amount Rs. 2000/- was to be paid to the widow of the deceased Wajjid Hussain and Rs. 1000/- to injured Abid Hussain, as compensation. The accused-appellants Saghir and Qamaruddin alias Qumru having died during the pendency of appeal, the appeal stood abated against them.
2. Briefly stated the prosecution case at the trial was that in the mid-night of September 27/28.1979 the first informant Abid Hussain (P.W.2) along with his brother Wajjid Hussain (deceased) was sleeping in the courtyard of their house situated in Sehaspur Town within P.S. Seohara District Bijnor. Zahid Hussain (P.W3) son of first informant was sleeping on first floor and other family members were sleeping in the rooms on the ground floor. A lantern was burning in the courtyard. At the same time 10-15 dacoits armed with guns, and pistols came in the courtyard through western roof of their house. The first informant and his brother woke up on hearing some unusual sound. The dacoits overpowered and subjected them to assault with sticks and forced them to get the doors of the rooms of their family members opened.
3. The first informant''s brother Wajjid Hussain shouted and asked his children not to open the door. The miscreants pushed and broke open the door of the room where family members of first informant were sleeping and committed dacoity. On hearing the outcries. First informant''s son Zahid Hussain (P.W.3) came down and opened the main door, raised an alarm which attracted Mohd. Kamil (P.W.5) and Sajjid Hussain (P.W.6) uncle and younger brother of first informant and village folk to the spot. At this a dacoit opened fire from the pistol which hit Wajjid Hussain.
4. The shot fired from the gun by another dacoit hit Sajjid Hussain (P.W.6). Wajjid Husain succumbed to the injuries. The wife of Wajjid Hussain opened the door of her room on hearing the outcries. The dacoits looted goods from her room. The neighbours and village folk were constantly flashing torchlights towards their house. Seeing the pressure mounting the dacoits opening fire decamped with looted goods towards the jungle.
5. The written report (Ext.Ka3) was scribed by Abdul Wahab on the dictation of Abid Hussain(P.W.2). It was lodged at the police station on 28.9.1979 at 3.30 A.M. On the basis of written report chick F.I.R. (Ext. Ka 14) was prepared and crime was registered. S.H.O. L.S. Chauhan P.S. Seohara took the responsibility to investigate the crime. He conducted the inquest on the dead body and prepared inquest memo, photolash, challanlash and letter to C.M.O. (Exts. Ka 18, 22, 23, & 24).
6. The autopsy on the dead body was conducted by Dr. R.B. Saxena (P.W.8) on 28.9.79 and following ante-mortem injuries were found as per postmortem report (Ext.Ka11):
1. Gun shot wound margin black inverted 1/2" x 1/2" x cavity deep surrounded by blackening and tattooing in 1/1/4" x 1/1/4" area around the wound on left side of chest, outer side mid-axillary line 6th intercostal space.
2. Abrasion 1 "x 1/4" on right side of waist.
7. On internal examination a hole in sixth intercostal space left side mid axillary line, soft tissue blackened and rupture in lower part of left lung were seen. Lower lobe of lung ruptured and mutilated, black and injected with blood. Six pellets of the size 1/10" were recovered. There was rupture of diaphragm between left lung and liver 2"x2" x entire thickness obliquely. Four tiklie pieces three of size 7/10" x 1/10" one piece 7/10" x 7/10"x9/10" were found in the diaphragm. Forty one pellets were recovered from right lobe of liver.
The death was caused due to shock and hemorrhage as a result of injury to left lung.
The injured Sajjid Hussain (P.W.6) was medically examined by Dr. Rishi Ram (P.W.1) on 28.9.1979 at 5 A.M. and following injuries were found on his body as per injury report (Ext.Kal):
1. Rounded two wounds of size 1/4" x 1/4" one on right side of neck about 4 cm. from right lobule of the ear below and second on upper part of right surface neck just below right angle of mandible with bleeding and tattooing marks.
2. Multiple rounded wounds in area 12 cm. x 12 cm. of size 1/4 cm x 1/4 cm on upper part of the right arm and shoulder with tattooing. Six pellets felt in the wound.
3. Shirt on the pan of the right arm stained with blood and punctured at many places.
The injuries were caused by firearm and were fresh in duration.
The injured Abid Hussain (P.W.2) was medically examined on 28.9.1979 at 4.30 A.M. by the doctor (P.W.I) and following injuries were noticed on his body according to the injury report (Ext. Ka2):
1. Lacerated wound 6 cm. x 1/2 cm. x scalp deep 5 cm. above right eyebrow.
2. Traumatic swelling 4 cm. x 5cm. in the area between right pinna ear and right eye.
3. Multiple abrasions on anterior surface of right knee and lower part of thigh. The injuries were caused by blunt object and simple in nature.
8. The accused-appellants Saghir, Yaqoob, Rehmu and Zamir were arrested on October 17, 1979 in a case u/s 399/402 I.P.C. section and 25 Arms Act by S.H.O. L.S. Chauhan. They having made a confessional statement about their complicity in the commission of dacoity their faces were covered. They were brought to P.S. Seohara in covered faces and were lodged in the lockup by constable Hari Lal (P.W 13). They were sent to district jail Bijnor with covered faces by C/C Ram Asharey. The accused-appellant Qamaruddin alias Qumru was arrested on 25.7.1980 and was lodged in the lock up of P.S. Seohara at 3.15 A.M. with covered face. He was sent to district Jail with covered face the same day at 8.30 A.M.
9. In pursuance of the disclosure statement of accused-appellants Rehmu and Saghir discovery of looted articles (Exts. 2 to 13) were made on 18.10.79 from their houses. The recovery memo (Exts. Ka 20 & 21) were prepared.
The accused-appellants Rehmu, Saghir, Zamir, and Yaqoob were put up for test identification on 17.12.79 and were correctly identified by the witnesses Abid Hussain(P.W.2) Zahid Hussain(P.W3) Mohd. Kamil (P.W.5) and Mohd. Yasin. The accused-appellant Qamaruddin alias Qumru was correctly identified by three witnesses.
10. The test identification parade in respect of the looted properties recovered pursuance of the disclosure statement of appellants Saghir and Rehmu was conducted by the Execution Magistrate Ganga Ram (P.W.9) on 13.2.1980. The looted articles (Exts. 1,4,5,6,7 &9) were correctly identified by the witnesses Abid Hussain (P.W.2) and Zahid Hussain. P.W.3) The recovered articles (Exts. 1, 4, 7 & 9) were identified by witness Smt. Anisa Khatoon (P.W.4). The articles (Exts.1 to 9) were correctly identified by Smt. Sabri Begum (P.W.7). The identification memo (Ext. Ka12) was prepared by the witness (P.W.9) at the time of identification proceedings.
11. The torches in the light of which the accused-appellants were seen and identified by the witnesses were inspected and given in their custody. The site plan of the place of offence (Ext. Ka15) and of the places from where recoveries of looted properties made (Exts. Ka 16 and 17) were prepared by the investigating officer.
12. After completing the necessary formalities charge sheet (Exts. Ka-25 and 26) were submitted by S.H.O. L.S. Chauhan.
The committal proceedings were conducted by C.J.M. Bijnor. The accused-appellants and co-accused were committed to the court of sessions on different dates for standing trial for the offence u/s 396 I.P.C. The accused-appellants and co-accused Munna alias Tunta and Waheed were charged for the offence u/s 396 I.P.C.
13. The accused-appellants Saghir and Rehmu were separately charged for the offence u/s 412 I.P.C.
At the trial the prosecution examined 18 witnesses out of whom Abid Hussain (P.W.2) Zahid Husain (P.W.3) Anisha Khatoon (P.W.4) Mohd. Kamil (P.W.5) Sajjid Hussain (P.W.6) and Sabri Begum (P.W.7), were witnesses of factum of dacoity and identification. Sardar Hussain (P.W15) and S.H.O. O.P. Sharma (P.W.16) were witnesses of recoveries of looted property made in pursuance of the disclosure statement of accused-appellants Saghir and Rehmu. Rest of the evidence was of formal nature.
14. The accused-appellants in their statements u/s 313 Cr.P.c. gave out that they were shown to the witnesses at the police station. They were taken to the house of witnesses and were shown to them there.
The trial court having found the testimony of identifying witnesses truthful and reliable recorded the finding of conviction against the accused-appellants.
We have heard Shri D.N. Wali, learned Counsel for the appellants, learned A.G.A. for State and have gone through the trial court record.
15. The learned Counsel for the appellants challenged the finding of conviction on the grounds: faces of accused-appellants were not covered and they were shown to the witnesses as evidenced from the testimony of Sabri Begum (P.W.7); the precautions to ensure that identifying witnesses not to have a chance to see the appellants were not taken; the identification parade was held two months after their arrest; the evidence of identifying witnesses was unreliable in view of the testimony of Sabri Begum (P.W.7)
16. The learned A.G.A. appearing for the State supporting the impugned judgement and order submitted that the appellants were correctly identified in the test identification parade by four witnesses out of whom three witnesses were examined and they supported the prosecution case. The dacoits having remained inside the house for about one hour, the witnesses had ample opportunity to notice their facial features. The delay in identification by itself is not a ground for discarding the evidence of identifying witnesses. There was sufficient lantern and torchlight at the time of commission of dacoity to enable the witnesses to see the facial features of accused-appellants. All the precautions were taken to ensure that the witnesses did not have the chance to see the accused-appellants.
17. The accused-appellants Yaqoob, Rehmu, Zameer and Saghir(deceased) were arrested by the police in a case u/s 399/402 I.P.C. between the night of 17/18.10.1979 and were made Baparada at the spot. They were brought to the police station Seohara and were lodged in the lockup of the police station by constable Hari Lal(P.W.13) who categorically stated that a blanket was placed at the door of male lockup and none was allowed to see the faces of accused-appellants. C.P. Ram Asrey (P.W.12) along with other police constables brought the accused-appellants to district jail Bijnor from the lockup of police station and at that time their faces were covered. The test identification parade in relation to the accused-appellants No. 2,3,4 Yaqoob, Rehmu and Zameer was conducted on 17.12.1979.
18. The accused-appellant Rehmu stated before the Magistrate who conducted test identification parade that he was previously known to the witnesses and was shown to them by the police. The appellant Yaqoob stated that he was previously known to all the witnesses as his sister was married in village Sahashpur. Likewise appellant Zamir stated that he was previously known to the witnesses.
19. The witnesses Abid Hussain (P.W.2) the first informant and an injured person was sleeping along with his brother Wajjid Hussain(deceased) in the courtyard of his house and woke up on hearing some unusual sound. He stated having identified the accused-appellants Saghir, Waheed, Rehmu, Yaqoob and Zameer in the jail. According to him the accused-appellants were seen by him for the first time while committing dacoity and thereafter he saw them in the jail. He denied having seen them on any previous occasion. He deposed having seen the accused-appellants in the lantern and torchlight flashed by the witnesses Sajjid Hussain, Mohd. Kamil and Zahid Hussain. He deposed that lantern was hanging on a nail in the southern wall.
20. He denied that accused-appellant Zameer was previously known to him and he was shown to him at the police station. He denied that accused-appellant Yakoob was shown to him at the police station. He denied the suggestion that accused-appellants Rehmu and Saghir were shown to him at the police station 15-20 days after the commission of dacoity and he identified them in the jail after having seen them at the police station. The witness Zahid Hussain (P.W.3) testified that his father and uncle Wajjid Hussain were sleeping in the courtyard whereas his mother, brothers, sister, aunt and children were sleeping in the rooms on the ground floor. On the fateful night 10-15 dacoits came on the ground floor from the western roof of their house and subjected his father and uncle to assault.
21. He woke up on hearing their outcries and hiding himself went out from the main door. His uncles Mohd. Kamil and Sajjid Hussain reached the spot with torches on hearing the alarm. The dacoits were seen by him in the torch light. He deposed having identified the dacoits in the jail and they were not previously known to him. He had identified six accused in jail. The accused-appellants who were identified by him in jail were seen for the first time while committing dacoity in his house and thereafter in jail at the time of identification. He had not seen the dacoits in the period intervening the commission of offence and identification.
22. He denied that accused Zameer was previously known to him. He denied having seen accused Yaqoob during his visits at the house of his (accused''s) sister Zohara a resident of village Sehaspur. The house of witness Mohd. Kamil (P.W.5) was adjacent to the first informant''s house towards the northern side. He was sleeping in his courtyard and woke up on hearing the outcries of Abid Hussain and Wajjid Hussain and silently came out of his house with torch. He found Sajjid Hussain and Zahid Hussain outside who informed him about the presence of dacoits. He along with Zahid Hussain and Sajjid Hussain entered the house of Abid Hussain flashing their torches. One of the dacoits opened fire which hit Sajjid Hussain and another dacoit opened fire from pistol at Wajjid Husain. According to him he saw the dacoits in torch and lantern light. He identified the accused-appellants Saghir, Qamaruddin alias Qumru, Rehmu, Yaqoob and Zameer in jail. He had seen the dacoits for the first time coming out of the house of Abid Hussain and thereafter in jail. He had never seen them on any other occasion.
23. He denied having seen the accused-appellant Zameer visiting his relatives in village Sehashpur. He denied having seen the accused-appellants Rehmu. Saghir and Qamaruddin alias Qumru at the police station Seohara.
24. The witness Sabri Begum(P.W.7) stated that a lantern emitting light was hanging on a nail in the courtyard near the window. She gave out that miscreants from whom articles recovered were shown to her and at that time her brothers-in-law Qamaruddin alias Qamru and Zahid were present. She could not recognize any of the dacoits due to darkness and four or five of them were covering their faces.
25. It is clear from the testimony of identifying witness (P.W.2,3 & 5) that precautions were taken to ensure that witnesses had no opportunity to see the accused-appellants during the period intervening the commission of offence and identification. The accused-appellants Yaqoob, Zamir and Saghir (since deceased) did not raise the plea at the time of test identification parade that they were shown to the identifying witnesses at the police station.
26. The testimony of each of the witness has to be weighed individually and it cannot be discarded on the basis of bald statement of the witness Sabri Begum (P.W.7) who is not an identifying witness. There is no time limit prescribed for holding the test identification parade. The dacoits having remained present in the house for an hour the witnesses had ample opportunity and occasion to see them. The witness (P.W.2) having been assaulted by the dacoits he had an opportunity to see them from close quarters. The facial expressions of the accused-appellants having been imprinted on the mental screen of witnesses, they would not have been erased from their memory within a period of two months.
27. The identifying witnesses correctly identified the accused-appellants at the test identification parade as well as at the time of their testimony in the court.
In the case of Brij Mohan and Ors. v. State of Rajasthan (1994) 1 SCC 13, the test identification was held after three months of the occurrence and the arguments was that it was not possible for the witnesses to remember after the lapse of such time the facial expression of the accused. It was held that sometimes the crime itself is such that it would create a deep impression on the minds of witnesses who had an occasion to see the culprits and such impression would not be erased within a period of three months
28. In the case of
29. In the case of
30. In Pramod Mandal v. State of Bihar (2004) 13 SCC 150, it was held by the Apex Court that if a rule is laid down prescribing a period within which test identification parade must be held, it would only benefit the professional criminals in whose cases the arrest are delayed as the police has no clear clue about their identity, they being persons unknown to the victims.
31. In the instant case the evidence of witnesses (P.W.2, P.W.3, & P.W.5) received corroboration from test identification even though it was held late. The presence of the witnesses (P.W.2) and (P.VV.3) both inmates of the house where dacoity committed was natural and probable. No reasons have been suggested to the witnesses for false implication. The dacoity took place for about an hour. The witnesses had ample opportunity to notice the physical features of the culprits. There was sufficient light to enable the witnesses to identify the dacoits. If the dacoits were previously known to the witnesses they would have named them in the First Information Report.
32. This brings us to the recovery of incriminating articles in pursuance of the disclosure statements of appellant Rehmu and Saghir (since deceased). The appellant Rehmau made a disclosure statement on the basis of which recovery of one Dari, two Jamphers, Salwar were made from his house. The recovery memo (Ext. KA 15) was prepared at the spot in the presence of the witnesses. The Recovered articles were sealed. The witness O.P. Sharma (P.W.16) the then S.O. P.S. Dhampur proved the recovery memo. He accompanied late L.S. Chauhan S.H.O. P.S. Seohara and recoveries were made in his presence. The public witness Sardar Hussain(P.W.15) accompanied the police party at the time of recovery of incriminating articles. 32. He deposed that the accused Rehmu took out one Dari, one Jampher and a Salwar from the Kothiya situated towards the southern side of the room. The recovery memo was prepared in his presence and bore his signature. The recoveries were also made from the house of accused-appellant Saghir (since deceased) in pursuance of his disclosure statement. The recovery memo (Ext.21) was prepared at the spot. The recovered articles were sealed. The test identification parade with regard to the recovered articles was conducted on 12.6.1980 by the witness Ganga Ram (P.W.9) the Executing Magistrate Bijnor. According to the witness (P.W.9) the articles No. 1,4,5,6,7,9 were correctly identified by the witness Abid Hussain, and articles No. 1,4,5,6,7,9 were correctly identified by the witness Zahid Hussain. The articles no, 1,4,7 and 9 were correctly identified by the witness Smt. Aneesa Khatoon. The articles No. 1 to 9 were correctly identified by Smt. Sabri Begum. The recovery memo(Ext.ka12) was prepared during the course of identification proceedings.
33. The witness Abid Hussain (P.W.2) deposed that he went to the court of Magistrate for the identification of articles namely ladies suit, Dari, etc. looted in the dacioty. The Dari (ext.2) one Pink Salwar Suit(Exts. 3 and 4), Chicken Kurta (Ext.5) Time Piece (Ext.6) were identified by him. He testified that these articles were looted in the dacoity and he had seen them for the first time in the court of Magistrate during the identification. These articles were not seen by him (during the period intervening commission of dacoity and identification.
The witness Zahid Hussain (P.W.3) testified that Jampher(Ext.5) Salwar Suit(Ext. 3 and 4) were correctly identified by him in the court of Magistrate. These articles were seen by him in the court after the commission of dacioty.
34. The witness Aneesa (P.W.4) deposed that daciots had looted clothes, box and silver ornaments. She went to the court of Magistrate for identification of looted articles. She had identified Salwar Suit(Ext. 3 and 4), Pink Colour Chicken Kurta (Ext.5) Dari (Ext.2) another Dari(Ext.7). White Cotton Salwar (Ext.8) broken pieces of silver ornaments iExt.9). She denied the suggestion that articles (Exts.3, 4, 5 ) were not identified by her.
35. The witness Sabari Begum (P.W.7.) identified the articles (Exts. 2 to 13). According to her these articles were taken away by the dacoits. The recovery of looted articles at the instance of appellant Rehmu and Saghir (since deceased) was made twenty days after the commission of dacioty. The prosecution proved the recovery of articles which belonged to the family members of first informant Abid Husain(P.W.2) and deceased Wajjid Hussain. The discrepancy in the testimony of witness Sabri Begum (P.W.7) with regard to the identification does not impair the testimony of other identifying witnesses and of Executing Magistrate (P.W.9).The defence has not suggested that there was any irregularity in holding the test identification parade.
36. The testimony of dentifying witnesses (P.W.2. P.W.3, P.W.5) is amply corroborated with the result of test identification proceedings. There was no reason for falsely implicating the accused-appellants nor any reason was suggested to the witnesses. The witness Abid Hussain (P.W.2) was sleeping in the courtyard. He having been overpowered and assaulted by the daciots had sufficient opportunity to notice their facial features. We find no reason to disbelieve the testimony of identifying witnesses (P.W.2, P.W.3, P.W.5).
37. In view of the aforesaid discussion we find no justifiable grounds to interfere with the finding of guilt recorded by the trial court. Consequently the appeal fails and is dismissed. The impugned judgement and order is affirmed.
The appellants Yaqoob, Rehmu and Zameer were released on bail during, the pendency of appeal vide order dated 8.2.1983. The Chief Judicial Magistrate, Bijnor shall cause them to be arrested and lodged in jail to serve out the sentence awarded by the trial court.
38. Certify the judgement to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Bijnor within four weeks from date of receiving the copy of this order.
