Patna High Court
Ram Ashish Rai And Ors. vs State Of Bihar on 7 March, 1988
Equivalent citations: 1988(36)BLJR720
JUDGMENT S.H.S. Abdi, J.
1. Appellant Ramashish Rai being aggrieved by his conviction under Section 402 of the Indian Penal Code (for short I.P.C.) and sentence of ten years rigorous imprisonment has preferred Cr. Appl. No. 521 of 1983. Appellants Akhilesh Kumar Singh, Abhimanu Mishra, Shyam Babu Singh and Krishna Prasad Yadav being aggrieved by their conviction under Section 396 LP.C. and sentence of rigorous imprisonment of life have preferred Cr. Appeal Nos. 628, 629, 630 and 631 of 1983, respectively. All the appeals arise of a common judgment and they have been heard together with the consent of the learned counsel for the parties and they are being disposed of by this common judgment. Accused Harinaram Singh, Indrakant Mishra, Lakhi Rai and Sheojee Kuer were acquitted. During the course of trial accused Rajesh Kumar Yadav was released on provisional bail by the vacation Judge on 9.11.1982 and since then he was absconding. Similarly, Birendra Rant also escaped from the police custody after the close of the prosecution case and his examination under Section 313 of the Code of Criminal Procedure.
2. The case of the prosecution was that at the Exhibition Road Branch of the State Bank of India is in the first floor of the Arunachal Building towards the west of the Exhibition Road and to the south of the point where Dakbungalow Road meets on the Exhibition Road. On 21.5.1978 the Bank opened at its usual working hours. The usual rush of the work of the Bank was over near about 12.45 P.M. One Lallan Pandey (P.W.2) Head Cashier was sitting in his room. Ram Balak Ram (P.W. 3) water boy was sitting on a Bench of the waiting room of the Bank along with one customer. In the Chamber of B.B. Dey Sarkar, Field Officer, Mithilesh Kumar (P.W. 5) clerk-cum-typist was taking dictation. Shree Ram Pandey (P.W. 6) was busy in his work at the payment counter and Umesh Mishra (P.W. 8) was working on the receiving counter. Nirshu Narain Singh (P.W. 10) was working on the current ledger. Rajendra Pd. (P. W 13) was sitting in the bank hall. P.C. Jha Branch Manager (P.W. 14) was working on his table in the meantime a person armed with a pistol came near the water boy Ram Balak Ram (P.W 3) and the customer sitting on the Bench in the Bank's waiting room and asked them to go away from there otherwise they would be killed, the water boy ran to the Banking hall crying that deceits had come. This alarm by him attracted the attention of the other employees of the Bank working there The water boy entered , into the room of the Bank Manager and shut it from inside. Immediately, thereafter 7 or 8 persons armed with pistols came into the Bank one after the other and they spread themselves in the various parts of the bank. Two or three dacoits came in the bank hall and some of them went towards the cash counter and three of them entered into the room of the Chief Cashier and two of them remained standing on the gate with pistols in their hand to keep a watch on the person coming in and going out of the Bank. The dacoits asked the employees of the Bank to remain at their place and to raise their hands. One of the three dacoits, who had entered into the chamber of the Head Cashier went to the receiving counter and took away Umesh Mishr (P.W.1) the amount he had received. Similarly Shree Ram Pandey was also relieved from the cash at his counter. The member of the dacoits took the currency notes lying in the cash box of the Head Cashier. In this way an amount of Rs. 55908.11 paise was looted.
3. On hearing of the alarm of water boy B.B. Dey Sarkar, Field Officer came out of his room and on asking the two dacoits standing near the gate as to what they were doing one of those dacoits stabbed him in his chest Sarkar on getting the stab blow pressed his wound and the same dacoits gave another blow on his back. Sri Sarkar on going a few steps forward fell down on the table of the accountant. The dacoits after taking the said amount made good their escape. Shanker Pd. Singh (P.W.8) Sub-Inspector of Police came to the bank at about 12.45 P. M on receiving information of the incident on telephone. The City Superintendent of Police and the Additional Superintendent of Police Town also arrived with a posse of force, but by then the dacoits had gone away. Shri B. B. Dey Sarkar was taken to the hospital for treatment where he died due to his injuries.
4. Lallan Pandey (P.W.2) gave a written statement (Ext.) on the same day on the basis of which first information report (Ext. 10) was instituted against unknown dacoits. The investigation of the case was taken up by Shankar" Pd. Singh, Sub-Inspector of Police (P.W.15). During the course of investigation a confessional statement (Ext.8) was made by one Birendra Ram on 9.6.1978 before Sri R.C. Pandey, Judicial Magistrate 1st Class, Patna, and on the basis of this statement accused Sheojee Kuer, Rajesh Kumar Yadav, Akhilesh Kumar Singh, Krishna Pd. Yadav, Abhi-manu Mishra, Shyam Babu Singh, Lakhi Rai, Ramashish Rai and Indrakant Mishra were arrested and from their possession Rs. 7000/- were recovered. The accused were put on test identification parade on 20.6.1978 Birendra Raut, Krishna Pd.. Abhimianu Mishra and Sheojee Kuer were put up for test identification parade before Sri A.P. Sinha, Judicial Magistrate. After completing the investigation chargesheet was submitted against the 12 persons except accued Devendra Singh who was declared absconder.
5. The accused in defence denied the prosecution case and alleged that they have been falsely implicated in this case. From the possession of Abhimanu Mishra 2200/- rupees had been recovered for which he gave explanation that he had received Rs. 1632/- as arrears of his pay and the balance of the amount he had added. Ram Babu, Shyam Babu and Krishna Prasad denied recovery of any money from their possession, Indrakant Mishra had also denied recovery of Rs 2200/- from his possession. Similarly is the denial of recovery by accused. Hari Narain Singh and Ramashi Rai, No witness in defence has been examined.
6. The prosecution in support of its case examined 19 witnesses, P.W. 1 Dr. Upehdra Pd. Verma (P.W. 1) conducted the postmortem examination of B.B. Dey Sarkar, Lallan Pandey (P.W.2) Ram Balak Ram, water Boy (P.W. 8) Mithilesh Kumar clerk-cum-Typist (P.W.6) at the payment counter, Umesh Mishra at receiving counter (P.W. 8), Shaukat Ali Siddqui, Head Cashier at the Bank till 12.30 P.M. Nirsu Narain Singh (P.W.10) at the current ledger, Rajendra Pd. (P.W.13) sitting in the Bank hall, P.C. Jain Branch Manager (P.W.14) have deposed on facts. P.W. 3 A.P. Sinha Judicial Magistrate held test identification parade on 29.6.1978. Ram Bilash Singh, (P.W.7) had proved the recovery of Rs. 7330/ with banks heads cheque slips bearing signatures of P.Ws. 8 9, P.W. 11 (Sri R.C. Pandey' Judicial Magistrate) had recorded the confessional statement (Ext.8) of Biredra Raut on 9.6.1978. P.W.12 Suresh Prasad Sah along with P.W.17 Mukti Nath Singh, Assistant Sub-Inspector of Police arrested Krishna Pd. Yadav, Ramashish Rai on the statement of Birendra Raut and recovered Rs. 7340/- from the house of Ramashish Rai and Saving Bank Pass Book in which Rs. 9990/- is said to have been deposited by P.W.15 Shanker Prasad Singh. Sub Inspectors of Police and P.W.18 Radhey Shyam are P. W. 6 Fakruddin Ahmad had recovered amount of Rs. 2200/- from the house of appellant Abhimanu Mishra and served the seizure mendex 6.
7. The trial court after considering the entire evidence on the record had convicted and sentenced the appellants as said above.
8. The murder of B.B. Dey Sarkar has been well proved by the evidence of P.Ws. 2, 3, 5, 6, 8, 9, 10, 13, 14 (employees of the Bank as well as the first investigating officer (P.W.15) and P.W. 11 Brindera Pd. Sharma who conducted the postmortem examination on the dead body of the victim B.B. Dey Sarkar on 30.5.1988 and submitted his report (Ext.1) which contains the following injuries ;
i. surgical stitched wound 9" in length, extending from left sternal region to left auxilla at the level of nipple. In the 5th intercosted region underneath the inter costal muscle along with corresponding pleure was found removed with lacerated margins 6 "in length and tiny blood clots at margines, which were firm in consistency. There was half litre of blood and blood clots in the chest cavity.
ii. The pericardion of front was found cut and there was a stitched wound " in length 1/6" deep with sharp margins at the front of right venticle ; lower end of which was found lacerated to a length of l/10th inch. The lacerated portion was in continuity with right ventricles and in the corresponding into cardial surface. There was a lacerated irregular purferation of 1" diameter. Both chambers of heart were empty.
iii. A stitched wound "x1 "x Rs 3" on the left upper scapular region with sharp margins ;
iv. Stitched surgical incised wound 1 "x 1/2" "x 1/3" through which a thin plastic tube was found inserted in the formal artery :
v. Stitched surgical incised wound l/2"x 1/2 "x 1/2 transverse at right cubital fossa region.
vi. Two surgical stitched incised wounds, one at medial side of each ankle and each measuring 1" in length x 1/8" deep
9. As regards the factum of dacoity, the statements of P.Ws. 2.3,5, 6, 8,9,10, 13 and who are employees of the Bank, are same and similar as they were working at that point of time besides the customer when 8-10 persons armed with pistols entered into the, Bank and they spread themselves in batches in different parts of the Bank ; two of them remained standing at the gate, two went to the receiving counter and payment counter. From the cash box of Lallan Pandey Rs. 11073.0, from the counter of Sriram Pandey Rs. 7075.45 paise and from the counter of Umesh Mishra Rs. 3375.66 paise were removed When the victim who was working in his chambers he came out and enquired then he was given blows one on the waist and the other on the chest and back with the result he died. Further when the investigating officer (P. W. 15) got the message on telephone about the commission of the dacoity he rushed immediately to the Bank and found the things disturbed in the Bank at different places, specially on the counters of Umesh Mishra Sriram Pandey and the table of Lallan Pandey Head Cashier and cashes were missing from the counters and cash box. These witnesses have been subjected to searching cross-examination and nothing has come out to show that whatever they were deposing about the commission of the dacoity was untenable or contradictory. These persons have withstood the severe cross-examination and there is no reason to hold that their evidence should be discarded. Rather their evidences are to be believed on the factum of dacoity.
10. In this case it appears that first information report was against unknown persons. During the course of investigation Birendra Raut absconding co-accused had surrendered before the Police and therefore he was examined and that he has given his statement (Ext. 8) under Section 164 Cr.P.C. before Shri R.G. Pandey, Judicial Magistrate 1st Class on 9.6.1978, though later on he retracted from his own confessional statement. On the basis of the said statement on surrender and then the confessional statement the complicity of the accused came in light and recovery had been made Two test identification parades were held in which the convicted accused had been identified. The trial court passed the judgment of conviction against the appellants on the basis of the confessional statement, test identification parade and recoveries. It may be mentioned that Birendra Raut, who made his statement under Section 164 Cr.P.C. absconded after his statement under Section 310 Cr.P C. and so his trial has been separated.
11. Learned Counsel for the appellants has urged that the confessional statement of Birendra Raut could not be relied on, as it has been retracted. The second contention is that after separation of the trial there is no evidence on the record to connect the appellants with the crime, as the confessional statement was made during trial and so relying on Section 30 of the Evidence Act it was submitted that it could not be taken into evidence It was also urged that against the appellants Akhilesh Kumar there was only one identification of P.W. 4. Similarly Abhimanu Mishra had been identified by P.W. 13 in identification parade but not in court. Similarly against Bahu is only one identification of P.W. 13 and against Krishna Prasad Yadav, though there are two identification of P.Ws. 10 13, but they were not relied on.
12. As regards the confessional statement, the statement under Section 164 Cr.P.C. recorded by P.W. 11 on 9.6-1978 within a period of about 10 days of the occurrence. Relevant portion of the statement is quoted below :-
After the occurrence of Punjab National Bank we comitted dacoity in the State Bank in which Krishna Pd , Devendra Singh, Sheojee Kuer, Lakhi Rai, Rajesh Kumar, Abhimanyu Mishra, Shyam Babu, Jagdisa @ Arjun and I participated. The plan of committing dacoity in Exhibition Road Branch of the State Bank of India was prepared by Krishna Pd. Yadav & Devendra Singh and they arranged for weapon i.e. pistols, chhura and one bomb. At Danapur in a yellow house Krishna Pd. said that Jugdish had run away with earlier money and so in this dacoity you will be given sufficient amount of money and so let us go and commit dacoity. From there we went to Patna Coffee House where Krishna entertained us with coffee and told me to stab this time otherwise you will be involved after giving information about the earlier occurrence and get you hanged. So i got terrified. Devendra Singh and Krishna Kumar Singh went to the State Bank to observe its location a day before the dacoity. After taking coffee Krishna Pd. went up-staris to see the situation of the Bank and then led all of them into the Bank. At the gate of the bank Krishna gave me a chhura and pistols. I was trying to avoid to commit the offence. In the mean while Krishna got injuries in his plam which was still in his hand. He threatened me and got angry. We thereafter entered into the bank. Inside the Bank Krishna asked the employees to raise their hands and said that the dacoity was being committed and that it was not your money but of the Government. In the mean time some one came making enquiry as to what had happened. Then Krishna asked me to stab him. So I stabbed him. Seeing blood coming out from the person of the man I got down cleaning my face with handk rechief and I ran away opening down iron gate. There were 400 to 500 persons standing. 1 got a bus infront of the Diamond Hotel and came to Gandhi Maidan, Patna, and then by other bus to Danapur The entire located amount was taken away by other accused. The next day Devendra gave me Rs. 3950/- as my share. Abhimanyu was also given 4000/-rupees. When I complained of the amount of share being less, then Devendra told me "the next day when Krishna would come to Courts for surrendering in Tooffan Express dacoity case, then there we three would take money together from him. The next day Krishna Pd. came with Shri Ramashish Rai, Advocate for surrendering then we three (I, Devendra and Abhimanyu) caught him and demanded money. Then he took us towards northern sloping part of Danapur Courts and there we sat and he said that he had come to the Courts to surrender and that he had not brought money and the entire amount is with Ramashish Rai, Advocate and the amount would be paid at Arrah. We did not allow Krishna to surrender on that day".... At the end of the long statement he said that he was taken to the police-station and was taken into police custody.
13. The first information was against unknown persons. On the own statement of Birendra Raut, he himself went to police station and surrendered. Thereafter his confessional statement was recorded by P. W. 11, the Judicial Magistrate on 9.6.1978. P.W. 11 has stated that he observed all the necessary formalities for the recording of the statement. Nothing has come out to the contrary from the statement to disbelieve him.
14. The word confession, as used in the Evidence Act, cannot be held to mean a statement of an accused suggesting that he has committed the crime. The confession must be either admitting the commission of an offence or admitting such fact which constituted the offence. A statement to be admissible under the provisions of Evidence Act must be a confession of accused and the statement by itself must be sufficient for conviction of not only the person who has made statement but also those who have been jointly tried along with it. In the case of Narayana Swami v. Employer 1939 P.C. 47 at 52 it was observed :-
No statement that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which is true would negative the offence alleged to be confessed. However, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not by itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. ...The definition is not contained in the Evidence Act, 1872 and in that case it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime.
15. In the case of Jafer Hussain Dastgir v. State of Maharashtra 1970 S.C. 1934, 1970 Cr.L.J. 1659 the Supreme Court observed that under Section 25 of the Evidence Act no confession by an accused to a police officer can be admitted in evidence against him. An exception to this is, however, provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible, so much of the statement of the accused which leads to the discovery of a fact deposed too by him in connection with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondary, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, discovery of the fact must relate to the commission of some offence. The embargo on statement of the accused before the police will not apply if all the above conditions are fulfilled.
16. In the case of State of U. P. v. M. K. Anthony the Supreme Court observed at page 56 :-
There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied on unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession as a weak piece of evidence See Jagtai v. State of Haryana , and State of Punjab v. Bhajan Singh , In Shahu v. State of M.P. 1965 S. L. R. 86 : 66 S. C. 40, it was held that extra-judicial confession may be an expression of conflict of emotions, a conscious effort to stiffle, the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime-Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state even if so much was etablished prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction obseraving that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyare Singh v. State of Punjab , this Court observed that the law does not require that evidence of extra-judicial confession in all cases be corroborated. It thus appears that the extra-judicial confession appears to have been treated as a weak piece of evidence, but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about the extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambigouous and unmistakenly canvey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may agitate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passes the test, extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon.
17. But there are some confessions which accused makes before a Court will be jointly tried for the same offence; affecting himself as well as the other accused which may be inculpatory or exculpatory. For that there is a provision in Section 30 of the Evidence as to how far it is admissible. It will be relevant to quote Section 30:-
Consideration of proved confession affecting person making it and others jointly under trial for the same offence when more persons than one are being tried jointly for the same offence, and a confession made by one of the such persons affecting himself and some other of such person is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession.
Explanation:-Offence "As used in this section includes the abatement, or attempt to commit the offence.
Thus by such statement the accused voluntarily creates for consideration against himself as well the fellow accused some evidences, besides the evidence collected by the prosecution against all the accused, as observed in a Division Bench decision of Mahadeo Prasad v. Emperor (1923) Alld 332.
18. How it is to be seen as to how far this voluntarily and self created evidence affects the confessing accused and the co-accused and in what manner it cannot be received. In the Full Bench decision of Gooria v. Emperor (1930) Nag. 242, it was observed that the inculpatory confession of an accused implicating his co-accused is not a fact upon which alone the conviction of co-accused can legally be based. It cannot be said that such a confession corroborated by other evidence forms legal basis for his conviction, or it is not permissible to start with the confession and proceed to enquire how far it receive corroboration from other evidence on record, when there is other relevant material implicating the co-accused, the Court is permitted under Section 30 of the Evidence Act to consider the confession along with the said matter and decide after such consideration whether or not conviction is justified. Another Full Bench In Re: Rajo Gopal 1944 Madras 117 observed at page 120:
In 1933 Madras 46 (1920 Madras 837) this Court, following earlier decisions, held that the confession of a co-accused is in itself insufficient to base a conviction of another person and that Section 30 only provides that such a confession is an element in the consideration of the facts of the case. We agree that a conviction should not be based merely on the confession of a co-accused. Other Courts have considered the section and have arrived at similar conclusions. These decisions have been correctly summarised in Woodroffe and Munir All's Law of Evidence 9th Edition page 312 as follows:
These 'words' (the words taken into consideration) do not mean that the confession is to have the force of a sworn evidence. But such a confession is nevertheless evidence in the sense that it is a matter which the court, before whom it is made may take into consideration in other to determine whether the issue of guilt is proved or not. The wording, However of this section (which is an exception) shows that where such a confession is merely to be an element in the consideration of all the facts of the case; who following it to be so considered it does not do away with the confession of other evidence.
19. Privy Council in the case of Bhaubmi Sahu v. King 1949 P.C. 257, has said:
This Section was introduced for the first time in the Evidence Act 1872 and marked a departure from the Common Law of England. It will be noticed that the section applies to confessions and not to the statements which do not admit the guilt of the confessing party-Section 30 seems to be based on some sort of sanction in support of the truth or his confession against others as well as himself But a confession of a co-accused is obviously evidence of a very weak type. If those not indeed come within the definition of evidence contained under Section 3 of the Evidence Act. It is not required to be given on oath, nor in presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not a subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in consideration of all the facts proved in the case ; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made foundation of a conviction, is correct.
20. The Supreme Court has considered this aspect in various cases ; (1) In the case of Kashmiri Singh v. State of Madhya Pradesh the Supreme Court considered these matters, and refound decisions in Bhuchoni Sahu (supra) and Emperar v. Lalit Mohan 38 Cal. 558 wherein Sir Lawrence Jenkins has said that "such a confession can only be used to" lend assurance to other evidence against a co-accused" or to put in another way ; as Hisly, J. did in reiperlaswani Moopan 54 Madras 75 at 77" the provision goes no further than this where there is evidence against the co-accused sufficient if believed, to support his conviction then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence " It was held at p. 160 ;-
(10) Translating these observations in to a concrete terms they come to this. The proper way to approach a case of this kind is, first to mar-shall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it If it is capable of belief independently of the confession, then of course, it is not necessary to call the conviction bad. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.
(ii) In a later decision in the case of Balbir Singh v. State of Punjab it was observed as follows ; -
In this case both the confessions were retracted subsequently and the proper approach in the case of this nature is to consider each confession as a whole on merits and use it against the maker thereof, provided the Court is in a position to come to an end unhesitating conclusion that the confession was voluntary and true and though a retracted confession, if believed to be true and voluntarily may form the basis of a conviction. The rule of prudence requires that it should be corroborated by independent evidence.
(iii) It was observed on page 225 ;-
It is necessary to emphasise here that the rule of prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused person in the crime must be separately and independently corroborated, nor it is essential that the corroboration must give very facts and circumstances discovered after the confession was made. See Hemraj v. State of Ajmer If the rule required that each and every circumetance mentioned in the confessional statement must be separately and independently corroborated, then the rule would be meaningless, inasmuch as, the independent evidence itself would afford sufficient basis for conviction and it would be unnecessary to call the confession in aid.
(iv) In a later decision of Ram Prakash v. State of Punjab 1959 S. C. R. 1219 : 1959 Cr. L. J. 90 : 1959 S. C. 117, the Supreme Court further observed at page 1222 of S. C. R. It will be clear from the terms of this Section that where more persons than one are being tried jointly for the same offence, a confession made by any one 01 them affecting himself and any one of his co-accused can be taken into consideration by the Court not only against the maker of the confession but also against his co-accused. The Evidence Act no where provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or confessing accused. Accordingly the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessed accused and his co-accused. Not a single decision of any of the Courts in India was placed before us to show that a retracted confession was not" admissible m evidence or that it was irrelevant against a co-accused. An examination of the reported decisions of the various High Courts in India indicate that the preponderance of opinion is in favour of the view although it may be taken into consideration against a co-accused by virtue of the provisions of Section 30 of the Indian Evidence Act its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co-accused by virtue of Section 30 of the Indian Evidence Act, as a matter of prudence and practice a Court would not ordinarily act upon it to convict a co-accused without corroboration. On this basis it is now to be seen whether the confession was voluntary and true. It will then be necessary to consider whether the confession has received full and strong corroboration in material particulars both as to the crime."
(v) In the case of Haricharan Kurmi v. State of Bihar 1964 S. C 1184, the Supreme Court held at page 1188: -
In dealing with a criminal case where the prosecution relies upon the confession of one accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.
Later at the same page 1188:
It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of the co-accused persons; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence....
Later at page 1190:-
As we have already indicated, it has been a recognised principle of administration of criminal law in this condition for over a half century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction and grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of Criminal Jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him and so, he is entitled to benefit of doubt.
21. Let us consider some decisions of the High Court in L. S. Raju v. State of Mysore A.I.R. 1953 Bom. 397 : 1953 Cr. L. J. 1352 at page 1353 Chagla, C. J, observed :
The confession of an accused is undoubtedly a very strong piece of evidence against the accused himself, provided it is voluntary and the Court is satisfied that it is true. But it is a weak piece of evidence as against the co-accused and the reasons for it are obvious. It is not evidence in the legal sense of the term. The person who makes the confession does not step into the witness box, his testimony it not subjected to cross-examination and it is really in a sense exparte evidence against the other accused. Therefore, Courts have always hesitated in convicting an accused person solely on the strength of a confession made by a co-accused. The Courts have gone sofar, as we shall presenty point out, as to lay down that there must be sufficient evidence independently of the confession which would warrant a conviction of the accused. It is only when there is evidence that the Court may proceed further and look at the co-accused and consider it as additional evidence that would further weigh the balance against the accused. Therefore, the mental approach which has been emphasised by the Court should be to ignore the confession of the co-accused in the first instance, marshall the evidence led against the accused independently of the confession, make up its mind whether that evidence is sufficient in law to warrant a conviction and after it has made up its mind then to consider the confession of the co-accused
(ii) A Division Bench of this Court in Rat Mathura Prasad and Ors. v. State of Bihar 1987 P. L. J. R. 693 at page 700 held ;-
In view of this legal position, it was only fit and proper for him to consider the case of non-confessing accused persons separately from that of the confessing accused and to find out if other materials on the record were sufficient to lead him to the conclusion regarding their guilt as well, and then only he could press the confession into service in order to receive assurance to the conclusion of the guilt of other accused persons which the judicial mind was about to reach on the other evidence...
(iii) The Supreme Court, in a recent decision of Param Hans Yadav v. State of Bihar 1987 P. L. J. R. at p. 37 referring to the decisions in Kashmir a Singh v. State of Punjab (supra) and Hari Charan Kurmi v. State of Bihar (supra) and observed :
It is well settled that confession of a co-accused is not substantive evidence against the co-accused persons in the same trial.
22. Thus following all these observations and the decisions the following can be said :-
(1) A confession for the purposes of Section 30 of the Evidence Act must be as confession of the offence for which the accused are being jointly tried along with other accused.
(ii) The statement must have been made on a previous occasion and proved afterwards at the trial with the co-accused. It is not necessary that the confession should have been recorded in the presence of the co-accused but it is necessary that the statement should be effected against the accused in evidence. Thus a statement can be recorded earlier before a Magistrate and can be offered later in evidence against the co-accused for consideration against himself and the co-accused.
(iii) A confession amounts to evidence in the general way because of the Section 30, as whatever is considered by the Court is evidence ; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense, yet this does not make it an evidence as defined in Section 3 of the Evidence Act. It is an element to be considered not independently, but along with other evidence and facts of the case, while declaring the guilt of an accused. It is only for the purpose of lending assurance to the conclusion arrived by Courts after assessing the other evidence on the record.
(iv) A confession is treated as a weak type of evidence. It is an evidence weaker than the evidence of an approver. It is neither subjected to cross-examination for testing its truth or otherwise nor it is given on oath nor the presence of the accused required : it is an ex parte evidence.
(v) This is the evidence created by the accused making confession against himself as well as co-accused. It becomes evidence due to the own creation by the accused and which becomes in addition to the other evidence which the prosecution produces against the accused confessing as well as against the co-accused. It is a sort of evidence which is thrown into the scale as an additional reason for believing the other evidence against the confession accused as well as the co-accused. It is not a substantive evidence and so on its own it cannot become the basis for conviction. If, at all, conviction is to be made on the basis of the worthy of reliance and credible evidence, then this confessional statement should be treated as additional circumstances to lend assurance. At times when the other evidence is worthy of reliance and credible, this confession may not be called in aid,
(vi) This evidence of confession can be considered without corroboration. It may corroborate other evidence and if, at all, on consideration found that if this confession is corroborated by other evidence also then it can be looked into, though not necessarily corroborated in minute details.
(vii) Before the confession of an accused is taken into consideration against another accused, there must be corroboration not only to the factum of the crime but also to the identity of the accused against whom it is intended to be taken.
(viii) A confession cannot be used against a co-accused where evidence against him lacks certainty or there is doubt about his guilt It cannot be used to fill up the gap in the evidence against him.
(ix) It is also to be seen as to how far the confessing accused implicates himself, whether he implicates himself substantially to the same effect as the co-accused. If the confessing accused implicates himself as much as the co-accused or himself to a greater degree, then it is a safeguard of truth, Self-exculpatory or mitiating his own guilt will not make his statement crebible against the co-accused, as an embroidery or concession favouring more the confessing accused than the co-accused may result in the loss of credibility of confession and may make it as a self-serving statement at the cost of the co accused.
23. The Court in India have considered confession as a weak type of evidence as observed by the Supreme Court in the case of State of U.P. v. M.A. Anthony (supra) and so also extra judicial confession. It was further held that neither the rule of law nor prudence requires that the evidence furnished by the extra judicial confession should not be relied on unless corroborated by some other corroborative evidence. Further if the evidence about extra judicial confession comes from the mouth of a witness, who appears to be unbiased and not even remotely inimical to the accused and in respect of whom nothing is brought to show that he has got a motive to attribute untrue statement to the co-accused and further the words spoken by the witnesses are clear, unambiguous and unmistakeably that the accused was the perpetrator of crime, then evidence of extra judicial confession can be treated to be reliable, true worthy and beyond approach and so it could be relied for conviction. If this basis for reliance of confessional statement has been laid down, then what will be the position of a confessional statement of a co-accused when the confessional statement is found to be inculpatory, admitting his own guilt implicating himself substantially to the same extent as the other accused and when it appears that the statement by the accused lacks conflict of emotion or is not an effort of stiffling the conscience or that the confessing accused has not tried to express his guilt as a mitigating circumstance and that it is an expression of truth by a representing person. Further when the evidence of a Magistrate in Court that the confessional statement has been given by the accused himself before him and it has been recorded in the language of the confessing accused and that the confession was without any fear and favour, then can such a confessional statement be treated or not in the same manner as the extra judicial confession mentioned by the Supreme Court in the case of M.K. Anthony (supra).
24. However, for the present case following the observations of the aforesaid decisions, I have to look to the other evidence apart from the confessional statement and after marshalling out the same try to find out as to whether the accused are guilty of the offence on the basis of that evidence.
25. P.W. 18 Radhey Shyam Singh the second investigating officer in this case has said that on 31st May, 1978 he got an information that a suspect similar to that in the bank dacoity case was seen in the compound of Arogya Bhawan House Nala Road. On getting the said information he went to the Nala Road, where he was informed that a person named Birendra Raut had been taken by the C.I.D. to Secretariat Police station. He verified the correctness of the said information on telephone. He went to the Secretariat Police station where statement of Birendra Raut was recorded and he was taken into custody. P. W. 1 found injury in the right hand of Birendra Raut for which injury report was prepared and the injured was sent to Gardinder Road Hospital for treatment After receiving the statement of Birendra Raut P.W. 18 sent him along with the police party consisting of Sub. Inspector of Police (for short S 1.) Bimala Pati Singh, Assistant Sub Inspector of Police (for short A.S.I.) Mukti Nath Singh and Suresh Sah to Arrah to arrest Krishna and to raid the house of an Advocate with a written acquisition. He also sent police party to search for Abhimanu Mishra in R. Block but he was not found on 2.6.1978 W. P. 18 went to Gandhimaidan in search of accused. Sheoji Kuer there, he was not found. From there he (investigating officer went to Danapur He gave a written requisition to officer Incharge, panapur for the arrest of Devendar Singh Mishra and Arjun alias Jagdish Singh, Rajesh Prasad Yadav and Shyam Babu and for recovery of the looted amount. He also sent requisition to officer incharge Punpun to arrest Devendra Singh. He also gave a requisition to A.S.I. Janak Singh to arrest Akhileshar Nath Sinha. The raiding party, which had gone to Arrah, returned with accused Birendra Raut, Krishna Prasad and Ramasish Advocate and they brought the recovered amount consisting of 45 notes of Rs. 100/- 50 notes of Rs. 20-100 notes of Rs. 10,00 and 122 notes of Rs 5.00. The recovered 20 rupees notes were stitched with white thread containing the signature of the batik cashier and bundle of Rs. 10 00 note was stitched and had seal of the State Bank of Exhibition Road. Also there were short signatures of U. Mishra and below that there was signature of S. A. Siddiqui. Bundles of Rs. 5.00 notes had slip of State Bank of Exhibition Road Branch and the date was written as 27.5.1978 with the signature of U. Mishra. These recovered notes are as Ext. IV series. From Arrah pass-book in the name of Ramashis was also brough (marked Ext. V). These three accused were put in lock up. There was injury mark in the palm of accused Krishna Pd. Yadav who was sent to Gardiner Road Hospital for treatment He took Krishna Pd. Yadav on remand from the court and sent Ramashish along with the S.I. of Police to Arrah for recovery of the watch. On the information of Birendra Pant that money was with his father Hira Raut P W. 11 searched for Hira Raut and after seeing Hira Raut took P.W. 18 to Nala Road for giving money at the shop of Rajballabh Sah and before Shital Pd. and Asgar Ali Rs. 3800/- was given by him for which the production list was prepared which is Ext. 6/5. On 3.6,1978 S.I Jagcshar Tiwari came alongwith Vakil Saheb with a watch S.I. T.N. Ojha and A.S.I. Fakruddin Ahmad along with accused Shyam Raut, Rajesh Kumar Yadav returned to police station with recovery amount of Rs 5410/- containing one bundle of Rs 10,00 which was stitched. On the first note of the bundle there was signature of Mishra. There was bundle of Rs. 10.00 and of Rs. 5.00 and one per Rs. 1.00 which were all separately stitched with thread and they had all slip of State Bank of Exhibition Road with the seal and signature of U. Mishra and Rs. 10.00 bundle with signature of S A. Siddiqui. There was label of the State Bank of India and marked as Ext. IV. series.
S.I.T.N. Ojha who had recovered from Rajesh Kumar Rs. 4731.00, S.I. Danapur also gave supplementary diary. A.S.I. Janak Singh brought Akhilesh Kumar and submitted supplementary diary. He recorded statement of Sheo Shanker Rai and Jagdish Pd. He recorded statement of accused Krishna, Hira Raut, and Ramasish Rai. He applied for the proceeding under sections 82/83 Cr. P.C. against the accused Devendra, Dakhi Rai, Arjun and Shoeji Kuer. On 6.6-1978 he filed an application for holding test identification of Rajesh Pd. Yadav, Akhilesh Kumar and Shyam Babu, before the Chief Judicial Magistrate on 7.6.1978 The Chief judicial Magistrate ordered for keeping Birendra Raut in segregation for recording statement under Section 164 Cr.P.C. In cross-examination P. W. 18 said that the identification of Rajesh Kumar, Akhilesh and Shyam Babu was held. He applied before the Chief Judicial Magistrate for taking statement of Krishna Pd. Yadav under Section 164 CrP.C. on 13.6.1978 A.S.I.F. Ahmad along with accused Abhimanyu Mishra went to recover the looted amount and he returned with recovered amount and gave supplementary diary. He got information regarding arrest of Sheoji Kuer by the Begusarai Police and took step for his production. Identification of accused Birendra Raut, Krishna Pd, Yadav, Abhimanyu Mishra and Sheoji Kuer was also held. He submitted chargesheet on 27.1978 against thirteen including three absconding accused.
26. As regards the identity of the accused the prosecution has tried to establish the same by holding the test identification Parade. On 10-6-1978 test identification parade of suspects Rajesh Kumar, Akhilesh Kumar Singh and Shyam Babu was held wherein Akhilesh Kumar and Shyam Babu were identified. The other parade was held on 29.6 1978 in which accused Birendra Raut, Krishna Pd, Yadav, Abhimanyu Mishra and Sheoji Kuer were identified- Akhilesh Kumar has been identified by P.W. 9 Shaukat Ali Siddiqui, since Shyam Babu were identified by P. W. 13 Rajendra Prasad, who was sitting in the Bank hall at the time of occurrence. Appellant Krishna Pd. Yadav was identified by P. Ws. 10 and 13. Abhimanyu Mishra was identified by P. 13 in the test identification parade out was not identified in the Court. Thus both these parades were held within a period of one month and ten days of the occurrence. The test identification charts are Exts. 3 and 3/1. The learned Magistrate as well as the identifying witnesses were subjected to cross-examination, but nothing has come out in their evidence to show that any irregularity or illegality has been committed in holding the test identification parade, of any opportunity was given to the witnesses to see the accused from before or during the identification proceedings.
27. As regards Krishna Yadav, it has been submitted that he had got a cut mark upon which no chits had been pasted, the learned Magistrate has himself admitted that no chits had been pasted. But from the statement it appears that the marks on the right eye brow and the forehead not so distinct as to create evidence fur identification unless prompting done. Nothing to the contrary has been established so there is to say that this appellant was identified by the cut mark. The trial court had also observed so about the marks.
28. It has been contended by the learned counsel for the appellants that only one identification cannot be the sole basis for conviction. As to this submission, no doubt against Akhilesh Kumar is the identification of P. W. 9 and against Shyam Babu is that of P. W. 13. But quality and not quantity is the criteria for consideration If in a particular case and circumstance more than one witness is not available and he alone gets opportunity to see the accused, then for that reason the evidence has to be subjected to strict scrutiny and careful examination and if after that, the evidence of one single witness inspires confidence and there is ring of the truth therein, then it is not to be discarded on the ground of quality (i). In the case of Jose v. The State of Kerala the Supreme Court observed at page 945 :-
There is no impediment in law in a conviction being based upon the testimony of a single witness provided the Courts come to the conclusion that his evidence is honest and trustworthy. But this contention need not detain us now, the Courts have taken into account other items of evidence also... ."Another point to be borne in mind is that the incident having taken place in a brothel, the evidence that will be forthcoming will only be of that quantity which is under the circumstances.
(ii) In the case of Shivaji Sahabrao Babade and Ors. v. State of Maharashtra , it was observed :-
Even if the case against the accused hangs on the evidence of a single eye witness it may be enough to sustain the conviction given on sterling testimony of a competent, honest-man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs. We are persuaded that the P. W. 5 is a witness for truth but in view of the circumstances that he is interested, we would still want corroboration in this case to assure ourselves. And that we have in this case.
(iii) In a later decision of Maqsoodan v. State of U.P. it has been observed :-
It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts. It is the quality that counts.
29. Though quality and not quantity is the criteria and even on the basis of the testimony of one single reliable witness conviction can be made, yet in the case of Ram Pravesh Ram v. State 1967 Cr. L. J. 803 a Division Bench of this Court observed "Rule of prudence forbids, however, conviction being based on the testimony of solitary eye-witness unless there are compelling reasons for the same and the evidence of the sole eye-witness is completely above board." In the case of Ramji Surjya and Anr. v. State of Maharashtra A.I.R. 1984 S. C. 810 : 1983 (20) A.C.C. 276 (S.C.) the Supreme Court observed "There is no doubt that even when there is only a sole eye-witness of a crime conviction may be recorded against the accused concerned provided the Court which hears such witness, recorded him as honest and truthful. But prudence requires that some corroboration should be sought for from the other prosecution evidence in support of the testimony of a solitary witness particularly, where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or illwill is suggested. "Later in the case of State of U.P. v. Satish Chandra it was observed : "It is not necessary in law that more than one witness should be examined to prove a fact but unless the witness is very reliable the Court should ordinarily look for corroboration."
30. Thus the evidence of a single witness if it inspires confidence, has got force against the accused. If the evidence of that witness is corroborated by other evidence on the record then that single testimony is not to be discarded on consideration of quantity as prudence requirement has been fulfilled.
31. Usually the identification evidence is looked upon with suspicious eyes and for placing reliance on the same, a very close scrutiny of the evidence of the identifying witness and identification process is required. The evidence of identification in parade on its own and independently, without evidence and identification in Court is of a very weak character rather no evidence and has only corroboration value to the evidence in Court. It was observed in Budh Sen v. State of U.P. as follows: As a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time from its very nature inherently of a weak character, The evidence in order to carry conviction should originally clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in question with reasonable particular. The purpose for a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them in the form of earlier identification proceeding."
32. In another decision of State of Andhra Pradesh v. K.V. Reddy it was observed at page 2213:
It is true that while picking out this accused at the parade these wintesses did not say anything with regard to the specific part played by him in the commission of the crime. That, however, does not render the evidence of such identification in admissible.
33. In the case of State of U.P. v. Boota Singh their Lordships of the Supreme Court after referring to the case of Budh Sen (supra) observed:" When this Court held that evidence of identification for the first time at the trial was of weak character, it merely meant that where the evidence of a witness in Court is not tested by prior identification parade held in jail not much reliance can be placed on such evidence. This, how-ever, is not the case here nor can we take the aforesaid decision to lay down a rule of universal application that the identification evidence is a very weak type of evidence. Where the witness correctly identifies the accused at T.P. parade held by the Magistrate after observing all the essential formalities and taking the necessary precautions and identifies the accused also in Court, the evidence of identification can be believed unless the evidences of a witness suffers from some other infirmity. More-over, the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a minutes but for some length of time in broad day light, when he would be able to know the features of the accused more carefully than on seeing the accused in a dark night for a few minutes."
34. It was in case of Vakil Singh v. State of Bihar A.I.R. 1981 S.C. 1292 where there was identification only by one witness after 3 1/2 months of the dacoity the Supreme Court observed." In the instant case we may mention that none of the witnesses in their earlier statement or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity nor did the witnesses give identification marks viz. stature of the accused or whether they were fat or thin or of fair colour or of black colour. In absence of any such description it will be impossible for us to convict any accused on the basis of a single identification in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial court. The High Court, however, has chosen to rely on the evidence of a single witness completely overlooking the facts and circumstances mentioned. The High Court also ignored the fact that the test identification was made at the T.I. Parade about 3 1/2 months after the dacoity and in view of such long lapse of time it is not possible for any human being to remember the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness."
35. Thus from following the decisions of the Courts it appears : (i) It is a rule of universal application that the identification evidence is so very weak type of evidence :
(ii) As a general rule the substantive evidence of a witness is statement made before a court;
(iii) The identification should not held after long interval of time as it is not possible for human being on the lapse of time to remember the features of the accused and so the identifying witness is likely to commit mistake ;
(iv) To test the substantial and evidence in Court there should be a prior identification test of the accused by the unknown witness in the form of identification parade which should be held by a Magistrate after observing all the essential formalities and taking the necessary precautions ;
(v) The identifying witness should give out the details about the accused to be identified in respect of his part played his feature, his stature, whether fat or thin, his colour whether black or fair colour or any identification mark ;
(vi) Further the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time in broad day light when he would be able to note the features of the accused more carefully. Though while picking out the accused at the parade the witness does not give anything with regard to the specific part played by him in the commission of the dacoity that will not render the evidence of such identification inadmissible :
(vi) If the evidence of identification is reliable, trustworthy and inspire confidence and further it is corrborated by the other material on the record, then that qualitatively rich evidence, will prevail over the quantitatively poor evidence.
36. In the instant case P.Ws. 9 10 and 13 are the three witnesses who have identified the accused, P.W. 9 Shaukat Ali Siddiqui says that he recognised the accused but he did not give any description of the person whom he had seen committing dacoity, P.W. 10 Nirsu Narain Singh, who had also identified accused Ramesh. Yadav and Krishna Yadav, did not clearly give out details of these two persons, though in respect of the accused, who had given stab blow to the deceased as features have been given P.W. 13, who was identified Krishna Prasad Yadav, also has not given any description.
37. Judging this evidence from the view that description and identification marks like stature, fat or thin, or colour not having been given, more particularly when the identifying witnesses had seen the accused in the day time, this may create doubt about the authenticity of their evidence. But the fact remains that these witnesses, namely. P.Ws. 9, 10 and 13 have been proved to be present in the Bank at the relevant time and at the relevant counters. Their presence and further opportunity to see has not been challenged nor disproved, rather it has been well proved,
38. How a witness behaves in a set of circumstances cannot be laid down once for all and every case has to be considered in its own particular set of circumstances, on this particular case it is found that during the banking hours dacoits had entered into the bank and caused commotion, confusion, terror and threat to the life was also given and murder was also committed and looting had been done, and so naturally the witnesses who are present, might have become stunand stupefied. In this context the observations of the Supreme Court in the case of Ranapratap v. State of Haryana A.I.R. 1983 S.C. at p. 682 are relevant to be quoted ;--
Every person who not witnesses a murder, reacts in his own way become speechless and start running from spot. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way there is no set rule of natural re-action to discard the evidence of witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginatively.
39. So if due to panic and terror created by murder, looting and threats to life identifying witnesses have not been in a position to note the special features, descriptions or identification marks of the particular accused or the specific roles played by them and for that reason if the details have not been given, which ought to have been given, then should the evidence of such witnesses be thrown away in its entirety, even if there is the evidence like recovery of looted amount from the possession of the accused and further the identity of such amount, being established as the amount looted in this very dacoity.
40. As regards the recovery of the amount ; there is evidence of P. Ws. 7,12,16,17, and others. From the evidence of P.W. 18-investigating officer it appears that the complicity of the co-accused came to light from the statement of Birendra Raut under Section 161 Cr.P.C. and on the basis thereafter he deputed police officers to arrest the persons which was done and recovery was also made of the looted amount of the Bank. P.W. 6 Sriram Pandey was at the payment counter P.W.7 Rambilash Singh has proved the recovery of Rs. 7/30.00 with bank slips containing signature of U. Mishra who was at the receiving counter. P.W.9 Shaukat Ali Siddiqui was Head Cashier P.W. 12 Suresh Sah had also gone with the P.W.17 for the arrest of Krishna Prasad and Ramashish Raj and they recovered amount of Rs. 7340.00 from the house of Ramashish Rai and a saving pass book in which Rs. 9,990.00 was deposited by P.W.16 Fakarud-din Ahmad had gone with appellant Abbimanyu Mishra and had recovered the amount of Rs. 2200.00 from his house. The statement of P.W.17 A.S.I. Muktinath Singh is also there. From these evidences the recoveries of the amounts from the possession of the accused have been established by the prosecution.
41. Their evidences are further corroborated by the recovered amounts, which are said to be of this very bank. A pack of recovered from a box, contained an amount of Rs. 541/- which had packs of one rupee, five rupees notes and out of them the pack of one rupee notes, was stitched and pasted with slips of the State Bank of India with the signature of U. Mishra (P.W. 8) and S. A. Siddiqui (P.W. 9). It has been said that there is the practice in the Bank that the notes, that are received at receiving counter, are stitched in bundles and labels with check slips pasted and the same are signed by the Head Cashier with their entry into the register and are kept in the vault. The notes are taken out from the strong room and after transaction necessary entries are made. Thus the slip contained seals, signature of the Bank of officials, stitching by the Bank have been proved by these witnesses. Thus from these evidences, not only the recovery but also its identity as the amount looted in this very dacoity have been established, which can be considered as a reliable corroboration to the identification of the accused as having committed dacoity in the bank.
42. After considering the evidence of identification of person, and the evidence of recovery of the amount and also identity as the looted amount of the bank, let us consider the prosecution evidence further as to whether it inspires confidence otherwise. Shaukat Ali Siddique Head Cashier (P.W.9) has said that accused Akhilesh Kumar Singh was seen by him on 27.5.1978 sitting on the bench of the Bank's Waiting Hall along with another from 11 A.M. to 1.30 P. M. and watching the working of the Bank. He stated that he was on duty on 27.5.1978 upto 2 30 P.M. and after handing over the charge to Sri Lallan Pandey he came out of the Bank. While he was taking tea in the hotel on the road near the Bank, he heard alarm that dacoity being committed in the Bank and heard some sound coming from the room of the Bank Manager and there was also commotion in front a the Bank. He proceeded towards the Bank and then he saw a man coming down stairs running,, away and he was the person whom he had seen two days before in the Bank. Lateron the identified this man as Akhilesh Kumar Singh one of the appellants.
43. As regards Shyam Babu, P.W. 13 Rajendra Prasad, who was sitting in the Bank Hall near the Head Cashier, has stated that there was alarm by the canteen boy that dacoits had come and he went into the room of the Branch Manager. Thereafter he saw dacoits armed with pistols entering into the Bank and they started looting. In the meanwhile the Field Officer B. D. Sarkar on hearing came to the Bank hall and enquired from the dacoits standing at the gate as to why there was hue and cry, A dacoit gave him stab blow on his chest and another blow on his back and then the victim after pressing his wound fell down near the table of the Head-cashier. He identified Krishna Prasad Yadav, Shyam Babu and Birendra Raut. This witness did not identify Abhimanyu Mishra in court. So far as Krishna Pd. Yadav is concerned he had been identified by P.W. 10 Nirsu Narayan Singh as well as P.W.13 Bajendra Pd. Both of them have been subjected to lengthy cross-examination but nothing has come out from their statements which may create doubt, Nirshu Narayan was employed as Record Keeper in the Bank and at the relevant time he was posting two cheques in the current ledger and at that time his attention was drawn by P.W.2 Ram Balak that dacoits had come and then he also saw the stabbing of the deceased and three dacoits coming towards the cash Department with pistols. Out of them one went near the Head Cashier and the other went to the payment counter and the third to the receiving counter. Besides them there were two others doaming with pistol in the hall and asked the employees to keep quite and raise their hands. He identified those person as Krishna Pd. and Rajesh Kumar (the absconting accused). P. W. 13 Rajendra Pd. is an employee of the Bank as J. S. No. 4 and he was sitting near the Head Cashier in the Banking Hall when he heard the cry of Rambalak that dacoit has come and as he saw the two dacoits entering into the gate with pistols and three dacoits entering into room and looting the cash and in the meantime when B.G.D. Sarkar came to enquire he was stabbed twice in chest and back where after he fell down near the table of the Accountant. This witness has identified Birendra Pd. Yadav, Shyam Sah and Birendra Raut a lengst the dacoits. These form the evidence of these witnesses the identification of those three appellants Akhilesh Kumar Singh, Shyam Babu and Krishna Pd. Yadav were established.
44. As regards Abhimanyu Mishra, he had been identified in the test identification parade by P W. 13. but he could not identify the accused in court. Though from the house of Abhimanyu Mishra Rs. 2202.00 the looted a amount was recovered and he was identified in the test identification parade alone not but not in the court, the identification in the identification parade is no indemnification in law, as it is only the identification in court which can be relied on and the identification in the identification parade is only a corroborative evidence. In the case of Budhsen and another v. State of U.P. it was observed ;-
As a general, rule the administrative evidence of a witness is a statement made in the court. The evidence of mere identification of the accused person for the first time is for its very nature independently of a weak character. The evidence in order to carry conviction should ordinarily be as to now and under want circumstances he came to pick out the particular accused and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of prior test identification, therefore seems to be to test and strengthen the trustworthiness of the evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who were strangers to witness (sic) in us from of earlier identification proceeding. There may, however, be exceptions to this general rule, when, for example, the court is impressed of a particular witness on whose testimony it can safely rely without such or other corroboration.
In the case of Hasseb v. State of Bihar it was said at page 286 :-
As observed by this Court in Vaikuntam Chandarappa v. State of Andhra Pradesh A.I.R. 1980 S.C. 1340 the substantive evidence is the statement of a witness in Court and the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Courts to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the dacoits when PW. 10 saw them on January 28,1983, then the T I. parade as against him cannot be of any assistance to the prosecution....
45. Thus on account of no identification of this accused in Court and only identification being in test parade, then there is no identification against him in the eye of law.
46. Now the evidence of recovery of Rs. 2200.00 from his possession is to be considered. P.W. 16 Fakhruddin Ahmad A.S I. has stated that he had gone to village Bhoj Pandual with appellant Abhimanyu Mishra after examining this appellant on 12.6.1978, wherein he had stated that the money was with his brother, Indra Kant Mishra (since acquitted). He further stated that Rs. 2200-00 were recovered from the room of the house at the instance of Inder Kant Mishra, for which seizure list (Ext. 6/14) had been prepared. In the cross-examination Pi W. 17 has denied the suggestion that when Inder Kant Mishra was assaulted when his mother borrowed Rs. 2200,00 from the villagers and handed over the same to P.W.17. ' But appellant Abhimanyu Mishra in his statement Under Section 313 Cr.P.C. has given the explanation that Rs 1600/- was his arrears of pay and Rs. 600.00 had been saved by him, which amount (Rs. 2200.00) he had sent to his mother in the village for the repair of the house. It appears that after the arguments had been heard and the case was fixed for judgment, this appellant had filed an application for calling for the papers from the office of Barahia Firing Commission in the Pattu Secretariat showing that the appellant had received Rs. 1632.00 e. g. areas , of his pay as a driver in the Commission. This application was rejected by the learned trial court, on the ground that no specific details had been given in the application about the required papers, and that it appeared that the application had been given to further delay the trial of this, there is no evidence, fixing this amount of Rs. 2200.00 as looted item, as no seal, slip, stitching marks have been found. So considering that this appellant Abhimanyu Mishra not having been identified in Court though identified in parade, and further the amount of Rs. 2200 00 not having been said to be the amount of the looted, cannot be held to be guilty of the charge of dacoity and murder. Therefore, he is entitled to be acquitted.
47. After marshalling the entire evidence about the factum of dacoity, participation of the accused looting of the amount, taking away of the amount by the accused and killing of the victim in the bank premises it is established that these facts by themselves are sufficient for conviction of the appellants except Abhimanyu Mishra,
48. Now, there remains the confession statement (Ext 8) of Birendra Raut, which has been referred to in details earlier. It is shown that it very much corroborates the other material evidence of identification and recovery and identity of the recovered amount as one looted in this very bank dacoity. It is further worthy of reliance and also of consideration, as it is self-inculpatory. The accused Birendra Raut has not absolved himself from the offence. He by his own confession has created against himself further evidence of serious and grave nature of causing stab wound to the victim who succumbed to those injuries. He also says that when he wanted to avoid to commit the offence then in the meanwhile Krishna Pd. got injury in his plam, which injury was found in his hand, when he was arrested and for which medical evidence is there on the record. He also said about looting and the sharing of the looted amount. He then surrendered before the police. There is evidence that there was no pressure, coercion or temptation. It was recorded before a Magistrate under Section 164 Cr.P.C. in the same words of the accused. Though on its basis alone conviction cannot be made, yet it is an element, which has got weightage for consideration.
49. Learned counsel for the appellant has argued that the statement Ext.8) is not to be relied on as the trial of the confessing accused had been separated and he has not been jointly tried in trial case. As to this contention, the Section 30 itself provides for confessional statement, if made during the same and joint trial and not in separate trial. In the case of Ramdeo Aiyer v. Emperor I.L.R. 72 Mad. 538 : 1923 Mad. 365 it has been stated that the statement made by one of the two accused should not be used against the other where later on their cases are tried separately and that if such statement is to be relied on as evidence, the accused, who made it, must be examined as a witness in the other case. In the case of Rai Mathura Prasad v. State of Bihar 1978 P.LJ. R. 694 at page 700 it has been observed as follows :-
It is really strange that the learned Additional Sessions Judge seems to be completely ignorant about this legal position even in 1981 when he delivered the impugned judgment. In view of this legal position, it was only fit and proper for him to consider the case of non-confessing accused persons separately from that of the confessing accused and to find out if other materials on the record are sufficient to lead him to the conclusion regarding their guilt as well, and then only he could press the confession into service in order to receive assurance to the conclusion of the guilt of other accused persons which the judicial mind was about to reach on the other evidence. If the judicial confession is excluded from consideration so far as the non-confessing accused persons are concerned, there would remain very little evidence in the nature of circumstances which are quite insufficient to lead the judicial mind to the conclusion of guilt so far these accused persons are concerned.
50. In the present case it appears that after making his confessional statement under Section 164 Cr.P.C. Bhendra Raut was tried jointly with all the appellants The order sheet dated 4,8.1983 of Session Trial No. 563/81., out of which these appeals arise, show that P.Ws. 15,16 and 18 had been examined out of the 18 witnesses produced by the prosecution. An application for bail of Birendra Raut was rejected as he had already been refused bail by all the courts including the High Court. P.W. 18 (the investigating officer) was examined on 5.8.1983, 6.8.1983, 10.8.1983 add 13.8.1983 and he was discharged after further cross-examination and the statement of the accused persons under Section 313 Cr.P.C. were to be recorded, except that of Ramasish Rai and for that 20th August, 1983 was fixed.
51. Further the ordersheet dated 20th August, 1983 shows that accused Birendra Raut was not produced from jail while other accused were in court and that a letter was received from the Superintendent Jail, Bankipur that Birendra Raut had escaped from the jail custody. The court observed that three accused were in custody for over three years and that accused Lakhsrai (acquitted) who was on bail, had been taken in custody in connection with some other case and the disposal of the case had been delyed on account of the accused having jumped the bail and that there was no immediate prospect of the arrest of Birendra Raut and so in the interest of justice the trial of Birendra Raut may be separated and a separate file be started against him and warrant of arrest, non-bailable be issued against him and that the case of other accused should proceed. The joint trial continued upto the stage of statement under Section 313 Cr.P.C. and thereafter the trial was separated on account of his absconding. If from the very beginning the trial had been separated, then it could be said that as the trial was separated and so a confessional statements could not be looked into and, if at all, the statement has to be considered then the person making statement should be called to give evidence as a witness. In this case the confessional statement above is not the basis of the conviction here. It is only 'an element and additional evidence created by Birendra Raut himself. When the evidence of factum of dacoity, looting, killing, recovery and identity in every detail has been found to be worthy of reliance, and these evidences are finding corroboration from the confessional statement then the confessional statement cannot be discarded on the ground that the trial has been separated. There is no bar to consider the confessional statement along with the other reliable evidence, which alone is being considered as sufficient proof of guilt against the appellants. In such a situation, the confessional statement can be treated as a good piece of evidence. It will be stretching too far and giving of lever to an accused to set at naught and destroy the evidence which is admissible under law which is not the spirit of Section 30 of the Evidence Act.
52. There is no material on the record to show that any attempt was made by the police to apprehend either Rajesh Kumar or Birendra Raut after their absconding No report has been submitted to the Court by any agency or the State as to how they escaped and why they have not been arrested. In this connection this Court called the learned Advocate General to state as to whether anything was done for the arrest of the two absconding accused, namely, Rajesh and Birendra Raut, and, whether it is possible to arrest them and produce them even before this Court The Deputy Inspector General of Police and the Senior Superintendent of Police, Patna, who appeared in this Court, stated that they would ensure the arrest and production of these two persons in Court within a month. This Court, then postponed the hearing for a month to enable them to do the needful. But even after expiry of one month they were not produced and after further hearing the case on 14.8.1987 and 17.8,1987 the Court had to conclude the hearing. Thus the persons interested have done their best to defeat the provision of law. In State v. Bhawani Singh A.I.R. 1968 Del. 208 : 1968 Cr. L. J. 1265 a case under the Contempt of Courts Act, some observation of the Full Bench are relevant to be quoted as follows:-
As observed by this Court in Criminal Org. petition No. 2/1967 dt 27.6.67 (Delhi H.C.) the offence of contempt of Court is coeval with the administration of law by the State and its paramount idea is that no tribunal can function properly unless it is allowed to keep by its dignity and unless it has power to enforce its order. The orders of the courts of law and justice in this Republic are enforced through the police agency, and indeed it is the duty of this agency to carry out and enforce such orders and also to see that there is no obstruction caused to their enforcement. Disobedience on the part of such agency of orders of courts of law and justice is, therefore, an offence which can be ignored only at the risk of rendering the courts important, which would in turn bring into ridicule the judicial process. This would result m utter confusion in the realm and the administration of justice and the Rule of law would be reduced to mockery.. ..The Chief excellence of our Republican Government, it may be pointed out, lies in the checks and balances and in this set up the judiciary has been entrusted not only with the solemn duty of administering justice between man and man and between man and State, but also in the courts of doing justice to scrutinise in accordance with law the functioning of the executive authority when the constitutional and legal rights of the citizens are m question. In the performance of this sacred constitutional duty by the courts no obstruction on the part of any agency however, nigh placed, including the police agency can be tolerated. To do so may mean an indefensible lapse of their obligation, if not also abandonment of their duties by the courts. Indeed the executive agency in illegally refusing to execute and respect the orders of the courts of law and justice should seem to us to do so with the peril of the possibility of proceeding for contempt....
52. Thus considering the entire material on the records, the case against the appellants Akhilesh Kumar Singh, Shyam Babu and Krishna Pd Yadav is made out. So their conviction under Section 396 I.P.C. and sentence of imprisonment of life awarded to them appear to be correct and appropriate.
54. As regards Ramashish Rai, the recovery of amount is well proved by the P.Ws. 12 and 17 and the amounts have been well identified by the employees of the Bank, who are witnesses in this case, as said above, and so the case under Section 412 I.P.C, for retaining the looted property is made out against him and so his conviction under Section 412 I.P.C. is upheld, but the sentence of ten years, in face of ordeal of trial is reduced to five years.
55. In the result, Cr. Appeal No. 629/1983 filed by appellant Abhimanyu Mishra is allowed and he is acquitted of the charges levelled against him and he is also discharged from the liability of the bail bonds. As regard Ramashish Rai, his conviction under Section 412 I.P.C. is maintained and the sentence of ten years is reduced to the period of five years and with this modification his Cr. Appl. No. 521/1983 is dismissed. The Criminal Appeal Nos. 828, 630 and 63 of 1983 filed by appellants Akhilesh Kumar Singh, Shyam Babu Singh and Krishna Prasad Yadav respectively are dismissed and their bailbonds are cancelled and they will be taken in custody to serve out their sentences.