Patna High Court
Nebi Dusadh vs The State on 5 April, 1953
Equivalent citations: AIR1956PAT39, 1955(3)BLJR428, 1956CRILJ95
JUDGMENT
1. This appeal has been sent to me as there has been, a difference of opinion with regard to one out of three appellants who had been convicted by the 1st Additional Sessions Judge of Purnea under Section 395, I. P. C., and sentenced to eight years' rigorous imprisonment each.
2. Briefly, the prosecution case was that certain traders were returning on bullock carts from Dhanaha Hat on 23-8-1952, when, at about 9 P. M., when the carts reached a place known as Kharra. Dhar, they were attacked by a number of persons including the appellant, Nebi Dusadh. These traders were, assaulted with lathis and were relieved of cash and bundles of cloth. It is said that Hari Ram Sao (P. W. 1) identified Nebi Dusadh and, immediately, after the miscreants had left the spot, disclosed his name to his companions.
The traders then went to a neighbouring village called Lachmipur and took shelter at the house of one Chutaharu Mandal (P. W. 9), and there also P. W. 1 reiterated that he had identified this Nebi Dusadh. Later on a 'fard-beyan' was recorded which was treated as the first information report of this case, and in this also P. W. 1 said that he had identified Nebi Dusadh. Nebi Dusadth, with other suspects, was put on a test-identification parade, and another witness, Gulabchand (P. W, 3), identified Nebi as one of the raiders on that night. The evidence of this witness was not accepted by my learned brother Misra J., but he accepted the evidence of P. W. 1 as it was corroborated by his statement immediately after the occurrence, to his companions and to P. W. 9 and to the police afterwards.
He was inclined to rely on the sole testimony of P. W. 1 on additional grounds also, which were that he had no grudge to make any false statement against this accused and there was no possibility of obstruction to the view in that locality which was an open space. He has observed that he is not prepared to take it as a mechanical rule that in every case, even where the testimony of a prosecution witness against this accused person inspires confidence in the mind of the Court and the circumstances surrounding the matter cannot be said to be erring, his evidence must be discarded and the accused necessarily acquitted.
On the broad principle that there can be a conviction on the uncorroborated testimony of one person in a case of dacoity, my learned brother Imam J. has not differed. But he has come to the conclusion that, in the circumstances of the present case, it will be hazardous to fix the guilt on this accused as the lighting condition for proper identification of a person was neither good nor sufficient and, as P. W. 1 was passing through a mental condition caused by fear, his sense of perception cannot be implicitly relied upon.
Both my learned brothers have discussed at length the observations of Bucknill J. in -- 'Golam Mohammad Khan v. Emperor', AIR 1925 Pat 536 (A) and have construed them in a way which appears to be a little opposed to each other. A number of other cases referred in the judgment of learned brother Imam J. in support of his view lay down that identification in dacoity cases should be examined with great caution; that Courts should always search for corroboration to justify the conviction of an accused on the basis of the testimony of a single person and that they have further to explore the possibility of mistake on the part of a witness when he is terror-stricken and when the visibility is poor due to lack of proper illumination.
3. On the broad principle, whether it is either legal or proper to case a conviction on the sole testimony of one witness, there appears to be no difference. Indeed, the rule of law has been expressed in Section 134, Evidence Act which says that no particular number of witnesses shall, in any case, be required for the proof of any fact. The result is that in any case the testimony of a single witness", if believed, is sufficient to establish any fact. The section merely follows the maxim that evidence is to be weighed and not counted.
As a rule of prudence, however, a Judge should seek for corroboration to fortify himself about the guilt of the accused if there is a speck of doubt in his mind relating to the testimony of that particular witness. One can visualise cases where it is impossible to expect any witness other than the complainant, and it would be unwise and against public policy for any Court to insist on the production of more witnesses.
When the evidence, however, is open to doubt or suspicion, the Judge should naturally ask for corroboration. Otherwise, if the Judge is in a position to hold definitely, without any hesitation on his part, that a certain person is guilty, although the evidence against him is comprised of the statement of only one person, there is nothing in law to prevent him from going further and declare the accused guilty.
4. It is true that dacoities are usually committed in dark nights and the persons involved in the crime are apt to take precaution to conceal their identity, and their endeavour is always to risk as little exposure to identification as possible. The Court should always be conscious, therefore, of the limitations which are inherent in the evidence of witnesses who depose about the identification of suspects in such cases.
But no hard and fast rule can be laid down that in every such case, if there is identification by only one witness, that identification should never be accepted. Every instance of identification in circumstances which usually accompany a case of dacoity has to be judged on the facts of that particular case presented by the prosecution, and, if, after a careful scrutiny, there is the slightest hesitation in the mind of the Court that there was possibility of a mistaken identification or that the statement of the sole witness was influenced by some other cause, the accused, in that view of the matter, is entitled, as a matter of course, to the benefit of a reasonable doubt.
5. Let me now examine the facts of this case and find out if the prosecution has been able to bring home the charge of dacoity against this appellant on the sole testimony of P. W. 1. Both my learned brothers have held, & I see no reason to differ from them, that there was a dacoity as alleged and the witnesses in this case nursed no malice against the appellant to see him involved in a case. The evidence of P. W. I, as already discussed above, has been accepted by brother Misra J. because he was disinterested; because there was facility for proper observation due to any lack of obstruction; & because of the statement made by him immediately then & there after the departure of the raiders which strengthened his claim of identification of this particular appellant.
Brother, Imam J. however, thinks that the question of enmity or disinterestedness has no relevancy in such cases where an honest mistake could be made by a witness. Existence of hostility in the form of mutual grudge or animosity cannot be wholly excluded from consideration as the same may influence an honest witness whose mind is always prepared to receive the suggestion that the act was nobody else's, but that of his enemy. An honest witness can be a victim of false perception if his mind is labouring under some misconception that his enemy, alone, was likely to assault and rob him of his belongings. The absence of such mental condition may afford a plausible ground to believe the witness's senses.
P. W. 1 has stated that he identified this appellant in the light of the torches which were flash ed by the raiders. Comment has been made by my learned brother Imam J. that, when lights are flashed on a person, he is less likely to see the physiognomy of a person flashing a torch. This is, no doubt, true, but, at the same time, there is no evidence that the raiders flashed their torches in one and the same direction. The witnesses were proceeding on four bullocks carts and the raiders, who were 15 or 16 in number, and said to have flashed their torches and surrounded the carts from all sides.
The evidence of P. W. 1 discloses that four or five of them surrounded his cart and one of them was the appellant. I am, therefore, inclined to believe that, as usually happens, torches were being flashed from several directions and it was possible for P. W. 1 to identify the appellant correctly in that light which sufficiently dissipated the surrounding darkness. It may be remembered in this connection that the appellant was known to P. W. 1 from before for about two years and he had come very close to him and, in fact, it is alleged, had wielded his lathi on this witness, Therefore, the evidence of P. W. 1 cannot be discarded as being worthless because there was no strong light such as one gets from a petromax lantern or of any other lamp with, similar brilliance.
6. In almost similar circumstances in 'In re, Rama Muppan', 11 Cri LJ 623 (Mad) (B) a Division Bench of the Madras High Court found the accused guilty under Section 395, I. P. C. In that case their Lordships found the offence clearly established on the evidence of one person only, who knew the accused previously and who had ample opportunity of observing the accused at the dacoity and who immediately named him to the villagers as one of the dacoits.
7. I may also refer to the evidence of the other witnesses who have deposed that they, too, flashed their torches on the raiders. Although P. W. I has not deposed about torches being flashed by his companions, I see no reason to discard their testimony when there is nothing in their evidence to indicate that they were deposing falsely. Another aspect may also be considered. The faculty which is to be taken into account for evaluating the sense of perception of any one is his memory, and the function of memory is dependant on the fact observed, producing an impression, which impression can be recalled and recognised as identical with the fact observed.
The degree of precision with which a fact has been perceived can be judged if the impression received is capable of being recalled and reproduced without any delay. The three operations of the mind should be tested to find if a witness is trustworthy so far as his sense of perception is concerned. In the present case, P. W. 1 had the opportunity to see a known man from close quarters and this impression which he received through his senses was reproduced without any delay, and there is no material to hold that his sense perception was falsely interpreted due to ill will or, to certain mistake or mistakes.
In this connection one should not lose sight of the fact that the power of vision in a man of the town, accustomed to brilliant electric lights, and in a man of the village, accustomed to darkness, is not on the same level. The light of a kerosene lantern or of a torch may be sufficient for a villager, but of very little help to the dweller of a town. I am convinced, therefore, that, in the circumstances, the witness was not suffering from any illusion of his senses when he claimed identification of the appellant at the very spot.
8. Brother Imam J. has noted another reasoning for rejecting the evidence of P. W. 1, which is that he was terror-stricken due to the sudden attack by the raiders and by the blows that he received. There is no discussion about the witness being in a state of fear in the judgment pf brother Misra J. There is no evidence in the deposition of the witnesses to show that P. VV. 1 and his companions became agitated in mind due to this sudden rush of the invaders and their attack.
It has been said in the case of AIR 1925 Put 536 (A) that, when as an individual is passing through circumstances of strain and terror accompanying violent crimes, it is not safe to convict a person on the identification of that individual alone. I need not refer to a large number of cases of other High Courts as well which have held that, when blows are struck and people terrorised during, an occurrence at night, the identification is generally of very little value. With every great respect to the observations made in all these cases, I am inclined to vanish such an idea which appears to have received popular favour.
To quote an American author on this subject, the sense of perception is sharpened to a razor's edge when confronted with a smashing emotional impact, and, unless one is frozen with fear, his mental faculties under terrific mental stress are more acute and his claim of identification more reliable. The claim of identification by a witness situated in these circumstances should not be lightly brushed aside on the sole ground that he had reasons to be afraid and that he entertained fear of his safety. Fear, terror and pain are likely to produce mistake on their own account, but it has to be judged in all such cases whether those were sufficient to create a condition which was equivalent to a morbid state. It has to be examined whether the witness was a victim of terror and his state of mind was wholly unsettled and unbalanced.
In the case before me, I am not in a position to say that such was the condition of this witness. Although the raiders were 14 or 15 in number, he and his companions constituted a fairly large party. The night had not advanced much and there was a village at a distance of only half a mile. There is no evidence that P. W. 1 identified the appellant after he has been assaulted. From his statement that he received eight or nine blows, whereas the medical officer found only two, it cannot be inferred that the witness was perplexed in his mind due to fear and terror. The other blows might have as well fallen on those parts of the body which were covered and, accordingly, I see no reason to hold, on the facts pf this case, that possibility of a mistake was necessarily very great and that his senses proved fallacious and deceptive due to the alleged fear.
I am inclined to believe, on the other hand, that, whatever fear might have been caused by the sudden attack of the raiders, it was not sufficient to disturb the mental condition of P. W. 1 in, sueh 'a manner as to produce a state of hallucination in his mind. In view of this finding, it is not necessary to deal with the interpretations given by my learned brothers regarding the observations made by Bucknill J. in AIR 1925 Pat 536 (A).
9. There is another consideration for which I am impelled to believe conclusively that this 'appellant had participated in the dacoity. P. W. 3 also claims identification of this appellant Brother Misra J. has discarded the evidence of this witness who identified the appellant in a test-identification, parade held on 14-9-1952, because of certain admissions made by him during cross-examination. Brother Imam J. has not referred to this evidence and, obviously, he, too, was not inclined to look at the evidence of this witness with favour. It may be recalled that the occurrence took place on 23-8-1952, and the test identification parade was held on 14-9-1952.
There was no delay, therefore, in holding the test identification parade. The image or eidolon which was imprinted in the mind of this witness (P. W. 3) could hardly be said to have been blurred by the passage of time. In the test identification parade, I find from the evidence of P. W. 4, the Sub Deputy Magistrate, that seven suspects including the appellant were mixed up with 88 under-trial prisoners similarly dressed and similar in status and appearance as tar as possible. Every precaution was taken to avoid collusion, and P. W. 3 successfully identified the appellant, Nebi, from amongst this host of under-trial prisoners. The reason for discarding the evidence of P. W. 3 rests upon the following admission made by him in cross-examination, which runs as follows:
"We used to attend the Court on each date since the dacoits were caught. I do not remember if I saw these accused persons in the court of the S. D. Order 3 to 4 days before the T. I. parade. Hari Ram Sao and Lakh Ram also used to come to court with me. Now says-- I never saw the accused persons after the dacoity and before the T. I. parade."
Brother Misra J. has observed that the answer of this witness was evasive which shakes the value of the identification made by him at the test identification parade. With very great respect, I am unable to agree with him. First of all, it appears that the witness was a little confused in what he was saying as he was giving evidence after about a year from the date of the occurrence and the date of the test identification parade. He might have attended the Court on eaeh date after the arrest of the accused, but this does not mean that he and the other witnesses had opportunity to see them.
It was never suggested to any witness that the police showed the suspects to this witness and the other witnesses before the test identification or that they were present when the accused were produced before the Sub-divisional Officer or that they had looked through the window or the bars of the Court 'hajat'. On being asked if he had seen the accused in the Court of the Subdivisional Officer three or four days before the test identification parade, the witness frankly answered at first that he did not remember.
He, however, stated immediately that he never saw the accused before the test identification. From the order-sheet it appears that the suspects were taken to the Court only on one day, that is, 10-9-1952, before the test identification on 14-9-1952. The attendance thereafter of the suspects is of no importance. From this fact alone, therefore, that the witness at first said he did not remember if he saw the accused in the Court of the Sub-divisional Officer three to four days before the test identification, it would be going a little too far to reject his testimony.
He was likely to give an answer like the one given by him when he was making the statement after such a long time. In view of the fact that this witness had been able to pick out this appellant from amongst 88 under-trial prisoners, I cannot get away from the impression that his identification was correct. In view of this finding, the evidence against the accused, depends, on the testimony of two identifying witnesses who can safely be relied upon.
10. As I concur with the opinion expressed by brother Misra J. the conviction and sentence passed on this appellant, Nebi Dusadh, which cannot be said to be harsh, are both maintained. The appeal is, accordingly, dismissed.