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Rajbir v. State Of U.P. - CRIMINAL APPEAL No. - 1100 of 1983 [2007] RD-AH 17688 (13 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No.54.

Criminal Appeal no. 1100 of 1983

Rajbir . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .Appellant.


State of U.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent.


Hon'ble K.S.Rakhra,J.

Hon'ble R.K. Rastogi,J.

This is an appeal under section 374(2) Cr.P.C. against the judgment and order dated 18.4.1983 passed by VII Addl. District & Sessions Judge, Agra in Sessions Trial no. 275 of 1981, whereby the trial court convicted the appellant Rajbir under section 396 I.P.C. and sentenced him to life imprisonment.

The incident relates to a dacoity which was committed in the night of 18/19.7.1980 at about 12 O'Clock in village Berichahar police station Khairagarh district Agra in the house of P.W.1 Rajendra Kumar. In this dacoity about 8 or 9 dacoits participated and during the course of dacoity they opened fire injuring the first informant and also causing death of Om Prakash. Report of this incident was lodged by Rajjo alias Rajendra Kumar on 19.7.1980 at 4 A.M. On the basis of which a case under section 396 I.P.C. was registered at police station Khairagarh district Agra. No one of the dacoits was named in the F.I.R.

The police, however, took up the investigation and during the course of investigation witnesses named Ram Bharosey and Nek Ram amongst the dacoits. These two persons are of the same village where dacoity was committed. The names of two other persons Ramvir and Sarnam also came to light but these two persons died during pendency of the trial.

The police claimed that during the course of investigation Ram Bharosey was apprehended on 3.8.1980 along with some stolen property and the complicity of appellant Rajbir, who is resident of Mathura, also came to light on the basis of the information collected by the police and the police then apprehended Rajbir, Babu, Shanker, Pepey alias Pritam. The witnesses claimed that they had seen the incident of dacoity in the light of torch and lantern etc. The dacoity was committed for about half an hour.

Those accused, who were not named by the witnesses even during their interrogation under section 161 Cr.P.C., were subjected to test identification parade on 5.9.1980. Appellant Rajbir was one of them. He was arrested by the police on 3.8.1980 itself on the disclosure made by co-accused Ram Bharosey. Eight witnesses participated in the test identification parade and out of them appellant Rajbir was rightly identified by P.W.1 Rajendra Kumar, P.W. 2 Onkar Singh, P.W. 4 Lala Ram, and Laxami Narain. On the basis of test identification performance by the witnesses, the appellant along with Babu, Shanker, Ram Bharosey and Nek Ram were charge sheeted. They pleaded not guilty to the charges framed under sections 396 and 412 I.P.C. etc.

In the trial, seven witnesses were examined by the prosecution in order to bring home the charge. They were P.W.1 Rajendra Kumar ( informant ), P.W.2 Onkar Singh, P.W.3 Padam Singh, P.W.4 Lala Ram, P.W.5 Shanti Devi, P.W.6 Jaddo and P.W.7 S.I. Gyan Singh. Except P.W.7 Gyan Singh all these witnesses are witness of dacoity or the witness of test identification parade.

In defence D.W.1 Ram Singh was examined by the appellant with a view to show that Rajbir has been falsely implicated on account of enmity between Rajbir and Dr. Radhey Shyam. He stated that appellant was apprehended by the police at the instance of Dr. Radhey Shyam.

The trial court acquitted all other accused persons on one ground or the other but has convicted the appellant Rajbir on the ground that he was identified in test identification parade by two good identifying witnesses and he was also identified by the witnesses in the court itself.

We have heard Sri I.N. Mulla, learned counsel for the appellant and Sri Kamlesh Kumar Tiwari, learned A.G.A. appearing for the State and have also gone through the evidence on record as well as the reasons given by the trial court in its judgment for convicting the appellant and acquitting other accused persons.

The argument of Sri Mulla is that the appellant was shown to the witnesses prior to test identification parade and that he was identified by only two good witnesses out of whom one i.e. P.W.1 Rajendra Kumar had committed a mistake while identifying the accused persons before the court. Out of the two persons on whom he placed his hands for identification of the accused, one person was wrongly identified in court. The argument of the counsel is that this reduces the value of Rajendra Kumar's identification to 50% and so it is to be ignored. As per his argument before this Court the appellant has thus been left with only one identification and that is not sufficient to award conviction.

We have also been taken through the attending circumstances. The learned counsel for the appellant submitted that the so called disclosure made by co-accused Ram Bharosey ( on the basis of which the appellant was allegedly arrested ) is itself doubtful because Ram Bharosey, who is resident of the same village where dacoity was committed was not named in the F.I,.R., although the witnesses claimed to have seen and identified him during the course of commission of the crime. The witness who had seen and identified Ram Bharosey at the time of dacoity had accompanied the first informant upto the police station, but even then he did not disclose the name of Ram Bharosey in the F.I.R. itself. Not only this, the police claimed to have recovered a Bush Transistor- a stolen property, from Ram Bharosey but the trial court has not found sufficient evidence to establish that the transistor recovered from Ram Bharosey was in fact stolen property.

We have given a careful thought to the argument raised by the learned counsel for the appellant and also the claim of the learned A.G.A. that appellant Rajbir was identified during test identification parade by four witnesses. In our opinion, the circumstances which have been pointed out by the learned counsel for the appellant have great bearing in examining the link of the appellant with the crime in question. The facts that Ram Bharosey, who has named the appellant as co-accused, was himself not named in the F.I.R. and that Ram Bharosey's complicity in the crime could not be established before the trial court, makes the claim of the prosecuting agency, that he disclosed the name of appellant Rajbir as co accused, very weak.

The test identification report shows that four witnesses P.W.1 Rajendra Kumar, P.W.2 Onkar Singh, P.W. 4 Lala Ram, and Laxmi Narain had correctly identified Rajbir as a person who was amongst the dacoits and committed this offence. Out of these four witnesses, Laxmi Narain had identified Rajbir without committing any mistake and he was a good identification witness and had given 100% performance, but for the reason best known to the prosecution he was not examined in the court. It is well settled law that test identification parade is not a substantive piece of evidence and it is only an assurance for the satisfaction of the Investigating Officer that investigation is proceeding in right direction. Reference can be made to the case of 'Ayyub etc. Vs. State of U.P.' AIR 2002 SC 1192. Substantive evidence which can be read and relied upon against the accused is an evidence given by the witness before the court where he is subjected to cross examination to elicit the truth. That being the position, we are left only with three identification witnesses deposing against the appellant. Out of these three witnesses who have deposed against the appellant in the trial court, Lala Ram, although he rightly identified Rajbir, had committed a mistake in identifying Shanker. His performance in the test identification is 50% and, therefore, such a witness in the eye of law is not dependable.

After eliminating Lala Ram we are left with only two identification witnesses, namely,. P.W.1 Rajendra Kumar and P.W.2 Onkar Singh. Both these witnesses rightly identified two accused and wrongly identified one co-accused. Their performance is, therefore, 66% correct. Such a witness who has 66% correct performance in test identification parade can be treated as good identification witness and the court has to evaluate his testimony in the light of his performance. A good identification witness does not mean that only on his statement the court must record conviction. His good performance in the test identification parade only shows that he had probably seen the occurrence and the culprits and this claim of the witness has to be considered by the court in the light of the attending circumstances and totality of the evidence.

On examining the testimony of P.W.1 Rajendra Kumar , who is first informant also,we find that he was required by the trial court to identify the persons whom he had seen committing dacoity and whom he did not know from before. The witness placed hands rightly on the appellant, but in an attempt to identify an other person named Shanker whom he had identified during the test identification parade, he placed his hand on some wrong person. His performance in the court, therefore, amounts to identifying one correct and one wrong person, and so the value of his identification is 50% only. Therefore, reliance on the statement of such a witness ( P.W. 1 Rajendra Kumar )cannot be placed safely.

If we exclude the testimony of P.W.1 Rajendra Kumar and Lala Ram P.W.4, the only testimony which can be read against the appellant in the case is that of P.W.2 Onkar Singh, who had rightly identified the appellant Rajbir and Babu in the test identification parade and had also rightly identified them in court. However, conviction cannot safely be made on the basis of single identification witness.

Further no explanation has been given as to why the appellant was subjected to test identification as late as on 5.9.80 when the incident is of 19.7.80 and he was arrested on 3.8.80. In the case 'Shatrughan Vs. State' (1995) 4 Spp. SCC 488, delay of one and half month in test identification was found to adversely affect the value of test when delay went unexplained.

The trial court while recording conviction on the basis of performance of P.W.1 Rajendra Kumar and P.W.2 Onkar Singh was misled by the performance in the test identification parade alone. The trial court has not discussed the effect of wrong identification of one of the accused by P.W.1 Rajendra Kumar before the trial court. It has also not discussed the effect of circumstance that name of the appellant was brought to light by Ram Bharosey whose complicity in the crime could not be established by the prosecution and so he has been awarded acquittal. The trial court also did not keep in mind the circumstance that Ram Bharosey, although resident of same village ,was not named in the F.I.R. It also did not consider the effect of delay in holding test identification.

This is the way in which the prosecution case was developed during investigation. No one was named in the F.I.R. but subsequently witnesses started claiming that they had seen and identified Ram Bharosey and Lala Ram resident of the same village. This improvement in the statement of the witnesses also raises doubt about the credibility of their testimony.

Although the appellant stated that he has been implicated falsely in this case on account of enmity with Dr. Radhey Shyam, we are of the opinion that even if defence evidence is ignored, the prosecution has failed to establish the link of the present appellant with this crime. The evidence adduced by the prosecution was wholly insufficient and unsatisfactory for the purposes of recording conviction.

We, therefore, allow the appeal and set aside the order of conviction of appellant Rajbir under section 396 I.P.C. and sentence of life imprisonment awarded thereunder. He is acquitted of the said charge. He is on bail. He need not surrender. His personal and surety bonds are discharged.

A copy of this judgment be certified to the trial court for information and execution.




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