Holding

The conviction under Section 396 IPC cannot be sustained as the prosecution failed to establish the identity of the appellants beyond reasonable doubt.

Summary

The case concerned a dacoity that occurred on the night of 5-6 April 1970 at the house of Dhaniram Singh (PW‑11) in Awadhiya village. The prosecution alleged that five of the accused, including Munni Singh, participated in the robbery and murder of the victim's uncle. Four sets of eyewitnesses were produced, but three sets were either not examined, irrelevant, or failed to identify any dacoits. The conviction rested solely on the testimony of PW‑2 and PW‑11, who claimed to have identified the appellants by the light of their torches despite being unarmed and outnumbered by the gang. The Supreme Court found their identification unreliable, noted the absence of any corroborative material such as recovered weapons or looted goods, and held that the prosecution had not proved the appellants' identity beyond reasonable doubt. Consequently, the Court acquitted the appellants and allowed the appeal.

Issues considered

Whether the prosecution proved the identity of the appellants as dacoits beyond reasonable doubt under Section 396 IPC.
Whether the testimony of PW‑2 and PW‑11 is reliable for identification of the accused.
Whether the lack of corroborative evidence (recovery of weapons or looted articles) defeats the conviction.

Legislation cited

Indian Penal Code, 1860s. 396

Subjects

dacoityidentification of accusedeyewitness testimonySection 396 IPCacquittalreasonable doubtevidence reliabilitycriminal law

Judgment

MUNNI SINGH AND ORS. A
v.
STATE OF BIHAR

APRIL 21, 1992

(MADAN MOHAN PUNCHHI ANDS. C. AGRAWAL, ~J.] B
Penal Code, JB{J()-Section 396-Dacoity--Conviction-Appreciation
of evidence-Four sets of prosecution witnesses-Evidence of three sets not
reliable-Reliability of the fourth set-Conviction basing on the evidence of
P.Ws.2 and JI-Legality of-Identity of accused not established-Effect of C
The appellants, the victims of the dacoity and. other prosecution
witnesses were residents of the village, where the crime took place in the
house of P.W.11.

The accused were closely related. P.W. ll's cousin and uncle were D
P.W.3 and the deceased, respectively, and P.W.2 was also a close relative
of P.W.11.

There was a simmering discontent between the family of P.W.11 and
the family of the accused, Sukhari Singh. The accused-Sukhari Singh
claimed that a pond was bestowed on him by the erstwhile Zamindar before E
the coming into force of the Zamindari Abolition Act. As the tank was
under the control of the accused, he prevented the cattle of the villagers
from drinking water from .it.

3/4 days prior to the occurrence of dacoity, the Panchayat of the
village suggested to the accused-Sukhari Singh to surrender the tank in F
the name of a Shiva temple~ The accused suggested to the Panchayat the
place constructed and occupied by the complainant party, (the deceased
and his relatives) for tying their cattle on the unsettled lands at the bank
of the pond also should be likewise given to the Shiva temple. The
Panchayat was not aggreeable to the counter suggestion of the accused. G
It was the case of the prosecution that the dacoity was mastennined
and made at the house of the complainant with a sole purpose to avenge.

On the night intervening 5th-6th April, 1970, the P.W.11, the first
informant and his cousin, P.W.J·and his uncle, the deceased were sleeping F
605

I
606 SUPREME COURT REPORTS (19<J2) 2 S.C.R.

A on the cots lay spread in the outer courtyard of their house. P.W. 11 was
awaken by some noise as if some persons were coming. He stood up and
switched on his five-cell torch and saw 20-25 dacoits armed with lathis,
bhallas, garasas, and guns coming toward~ his house. On his focussing the
torch they stopped. Then the dacoits also switched on their torches. P.W.11
recognised in the torch light the accused inclusive of 5 appellants. Accused·
B Sukhari Singh shouted, "kill-kill." Accused- Munni Singh fired with his gun
at P.W.11 but the gun fire did not hit him. While P.W. 11 was running, one
of the dacoits hit him with a stick with an iron ring. There was some oozing
-0f blood but it· was not profuse. He ran for about 30 steps to get to his
wheat field, which was about 2 to 3 feet below the level of his courtyard.
c From there he saw the remaining part of the_occurrence.

P.W.ll's uncle was shot by the accused Munni Singh and he fell
down. Other dacoits who were near him started hitting him with spears.

·one of the dacoits held a ladder in his hand, through which he
D climbed up to the roof of the inner house, from where he jumped into the
female apartment and opened the outer door. Then the dacoits ent~red the
house and started looting and plundering. Two dacoits scolded his cousin
P.W.3 to keep lying down on his cot. In the occurrence, P.W.3, received no
injury. The dacoits were active for about 15 to 20 minutes. On hearing the
E noise and commotion of the villagers, the dacoits decamped with the looted
goods. Some of the villagers followed them to some distance but the dacoits
kept firing on them. With the result that some of them were injured.

P.W.ll's llncle and other injured persons were removed to be taken
to the hospital, but P.W.'s uncle died on the way. Then P.W.11 proceeded
F to the Pol.ice Station, taking the dead body of his u~cle with him, and
lodged F.I.R.

P.W.12 went to the spot and saw the evidence of dacoity in the form
of things lying scattered and some of the articles left behind by the dacoits.
G He had the injured ·persons examined medically. He arrested .the accused
persons. Finally investigation was completed by a.nother officer and the
accused persons were put up for trial.

The matter went to trial under the old Code of Criminal Procedure
before the First AddiUonal Sessions Judge against the 6 named persons
H and one other. There were commitment proceedings before a Magistr~te
MUNNI SINGH v. STATE 607

in which evidence was recorded. At the commitment stage, 10 persons were A
pqt to face the enquiry, out of which three accused died. There remained
6 of the original accused named in the F.l.R. and one more, not so named,
to face trial.

The trial coJJrt convicted all the 7 accused under Section 396, IPC
and imposed on them a sentence of life imprisonment. B

On a peal, the High Court acquitted two of them, namely Ram Narain
Singh, the one unnamed in .the F.I.R. and one Charittar Ahir, one of the
so named and maintained the convictions of other accused.

This appeal by special leave was by the other accused challenging the
c
judgment of the High Court,

Allowing the appeal of the accused, this Court,

HELD : 1.01. The prosecution had four sets of witnesses which could D
establish identity of the dacoity. Three sets became redundant and only on
the basis of one set was identity of the appellants established. The first set
consisted of three injured persons who were not examined at the trial by
the prosecution. This set did not help the prosecution at all. The second
set consisted of the evidence of P.W.3, P.W.4 and P.W.9. The names of E
P.Ws.4 and 9 were not mentioned in the F.I.R. and their evidence was left •
out of consideration by the Courts below. Statement of P.W.3 was left aside
by the High Court. In the third set was the evidence of P.W.1. P.W.S and
P.W.8, who did not identify any of the dacoits. None of these witnesses was
declared hostile. Thus their evidence rather goes adverse to the prosecu-
tima. The fourth set consisted of evidence .c_>f P.W.2 and P.W.11 whose F
evidence has been relied upon by the High Court to identify the S appel-
lants and on the basis of the very same evidence two co-accused, were
acquitted because P.W.2 named one and excluded the other and P.W.11
named the other one an'!, excluded the former giving rise to a doubt about
the complicity of those two. [611 H-6120]
G
1.02. Seeing the formidable force of the dacoits and their number,
the two P.Ws.2 and 11 would have been so non-pulsed that they would not
have dared to betray their presence by switching on and off their torches
. especially when they were unarmed and were no match to the might of the
dacoits. These two witnesses do not claim that they could identify the H
608 SUPREME COURT REPORTS · (1992] 2 S.C.R.

A dacoits by means other than their torches. This part of the story of the
prosecution obviously does not inspire confidence. It is also worthy of
notice that P.W.11 was injured on the head before he ran for safety. That
was enough to shake and frighten him. But before the receipt of such injury
he claims to have switched on his torch first and to have seen in the first
glimpse the appellants and others. But his Dash of tlae torch was met
B instantaneously with numerous torch Dashes by the dacoits and it was like
day light as said by P.W.1. (613 F-H)

1.03. It is difficult in this situation to belie".e P.W.11 that he could
in a split second have such a perception so as to identify all the five
C appellants and some others. It is obvious and natural that behind a lit
torch darkness prevails hiding the identity or the torch bearer and persons
situated close. So identity of the dacoits was not possible by P.W.11.
(613 .H-6i4 A]

J.04. In the facts and circumstances of the case, there is a grave
D doubt about the participation or the appellants in the crime because of the
failure of the prosecution to lead convincing evidence about the identity of
the appellants as dacoits. There is even no corroboration worth the name
in the form of recovery of fire arins and other weapons, or of the looted
articles from the appellants, so as to lend some assurance to the participa-
~ tion of the appellants in the crilf!~· It may well be that the motive asserted
by the prosecution relating to the dispute about the pond may have given
cause to P.W.11 to assume that the appellants were responsible for the
dacoity committed in his house and for P.W.2, to entertain that belief in a
sweep. (614 C-E)

F CRIMINAL APPELLATE JURISDICTION : Criminal .A ppeal No.
572 of 1981.

From the Judgment and Order dated 26.8.1980 of the Patna High
Court in Criminal Appeal No. 15 of 1976.

G Ranjit Kumar for the Appellants.

D. Goburdhan for the Respondent.

The Judgment of the Court was delivered by

H PUNCHHl 0 J. This appeal -by special leave is against the judgment
I

MUNNI SINGH v. STATE [PUNCHHI, J.] 609

and order of the High· Court at Patna dated August 26, 1980 passed in A
Criminal Appeal No. 15 of 1976.

The facts giving rise to this appeal are that a dacoity took place at
about midnight on the night intervening 5th-6th April, 1970 in the house
of Dhaniram Singh, P.W.11, in village Awadhiya. According to the prosecu-
tion 25 to 30 persons armed with guns, lathis, bhalas and gharasa etc.
B
committed the dacoity and apart from looting away belongings of
Dhaniram Singh, his uncle Khobari Singh was shot dead and as many as 8
persons including Dhaniram Singh, P.W.11, received injuries. The First
Information Report wac; lodged by Dhaniram Singh, P.W.11, at 6.30 a.m.
on April 6, 1970 at police station, 8habhua at a distance of about 7 miles c
from the place of the occurrence. In it he could name 7 persons specifically
as being members of the gang of dacoits. The remaining dacoits were left
unnamed. The investigating agency when set into motion took steps as
necessary. But at this stage, it would be sufficient to mention that neither
could the investigation recover the looted property valued by the con- D
cerned P.Ws. at about Rs. 8,000 nor could it get the particular!> of a large
number of other participants in the dacoity. When the matter went to trial
before the First Additional Sessions Judge, Arrah; against the 6 named
persons and one other, the old Criminal Procedure of 1898 governed the
trial and before-hand there were commitment proceedings before a
Magistrate in which evidence was recorded. At the commitment stage, 10 E
persons were put to face the enquiry. One accused named Kanhiya Singh
in the meantime died. Two other accused Sukhari Singh and Guiab Gosain
also died. There remained 6 of the original accused named in the F.I.R.
and one more, Ram Naresh Singh, not so named to face trial and bear the
conviction. The Learned Additional Sessions Judge convicted all the 7
F
accused under Sectio;1 396 1.P.C. and imposed on them a sentence of life
imprisonment. On appeal to the High Court two of them namely Ram
Naresh Singh the one unnamed in the F.I.R. and Charittar Ahir, one of the
so named, were acquitted but the convictions of Munni Singh, Fekoo Singh,
Behari Singh, Dadan Singh and Guput Singh, the appellants herein, were
maintained. G

The appellants are residents of village Awadhiya where the occur•
rence took place. The victims of the crime and other prosecution witnesses
are also from Awadhiya. The village appears to be a small one consisting
.-4, only of 26-27 houses comprising of various castes like Brahmins, Rajputs, H .
610 SUPREME COURT REPORTS ·(1992] 2 S.C.R.

A .Kahars, Ahirs and Kurmis. This is what Hira Singh, P.W.2 has deposed at ·
the trial. The first informant suggested that there was a simmering discon-
tent between his family and the family of Sukhari Singh accused. Munni
Singh, appellant is the son of Sukhari Singh, Fekoo Singh and Behari Singh,
appellants are the nephews of Sukhari Singh and Guput Singh, appellants,
is the brother of Sukhari Singh. Thus they are closely related. There was a
B pond measuring about 3 acres in the village, which Sukhari Singh claimed,
had been bestowed on him by the erstwhile Zamindar before the coming
into force of the Zamindari Abolition Act. He had taken control of the
Tank but some time before the occurr.ence had sown "singhara" in it and
had prevented people to let their cattle come there to drink water from it.
C The Panchayat of the village when approached had taken note. of it and
had 3/4 days prior to the occurrence suggested to Sukhari Singh that he
should rather surrender the Tank in the name of the Shiva Temple. But,
he had correspondingly suggested to the Panchayat that the plaee con-
structed and occupied by the complainant party Khobari Singh and others
D for. tying their cattle at the bank of the pond, which was pa1 t of unsettled
lands, should also be likewise given to the Shiva Temple. The Panchayat
was not agreeable to the counter suggestion because the possession and
usage of that land by Khobari Singh was very old. With such grudge in
mind, it is the case of the prosecution, that the assault was masterminded
and made at the house of the complainant with the sole purpose to avenge
E and to commit dacoity.

The details of the occurrence are provided by Dhaniram Singh,
P.W.11, the first informant. He stated that on the day of the occurrence he
was in his village having come on a month's leave from his posting as a
F Weapon Senior Engineer in District Kanpur. On the night of the incident,
three .cots lay spread in the outer courtyard of their house. He was sleeping
on one of them, and on the remaining two individually were his cousin
Baliram Singh, P.W.3, and his uncle Khobari Singh (deceased). He was
awaken by some noise as if some persons were coming. He stood up and
switched on his five-cell torch and saw 20-25 dacoits armed with lathis,
G bhallas, Garasas, and guns coming towards his house. On his focussing the
torch they stopped. Then the dacoits also switched on their torches.
Dhaniram Singh then claims that he recognised in the torch light the
accused inclusive of 5 appellants. Munni Singh and Fekoo, appellants had
guns and the remaining 5 had some other arms. Sukhari Singh shouted
H kill-kill. Munni Singh then fired with his gun towards Dhaniram Singh but
MUNNI SINGH v. STATE [PUNCHHI, J.] 611

he rolled down and by the fall hurt himself on the thigh and the gun fire A

- did not hit him. Then he got up and started running. One of the dacoits
hit him with a stick with an iron ring. There was some oozing of blood but
it was not profuse. He ran for about 30 steps to get to his wheat field, which
was about 2 to 3 feet below the level of his courtyard. From there he claims
to have seen the remaining part of the occurrence. He saw that when his
uncle Khobari Singh had been awakened Munni Singh appellant fir~d at
B
him and he fell down. Other dacoits who were near him started hitting him
with spears. One of the dacoits held a ladder in his hand, through which
he climbed up to the roof of the inner house, from where he jumped into
the female apartment and opened the outer door. Then the dacoits entered
the house and started looting and plundering. Two dacoits scolded. his c
brother Baliram, P.W.3 to keep lying down on his cot. In the occurrence,
however, Baliram Singh, P.W.3, received no injury. The dacoits were active
for about 15 to 20 minutes. On hearing the noise and commotion, other
villagers then started collecting. The dacoits then decamped with the looted
goods. Some of the villagers followed them to some distance but the dacoits D<
kept firing on them. With the result that some of them were Injured.
Khobari Singh and other injured persons were removed to be taken to the
hospital but Khobari Singh died on the way and then Dhaniram Singh
proceeded to the Police Station, Bhabua, taking the dead body of his uncle
with him where the Office-in-charge, P.W.12 Ram Nagad Tiwari, recorded
his statement at 6.30 a.m. on 6.4.1970. Shri Tiwari went to the spot and saw E
the evidence of dacoity·in the form of things lying scattered and some-of
the articles left behind by the dacoits. He had the injured persons examin!fd
medically. He arrested the accused persons. Finally investigation was coqi-
pleted by another officer and the accused persons were put up for trial ~s
mentioned earlier.
F
Before the High Court, as also here, it is admitted that there was
commission of dacoity in the house of the first informant on the day as
alleged, in which Khobari Singh was killed and others were injured. It is
-~
also not disputed that the dacoity being a conjoint act all persons par-
ticipating in the crime would be equally liable for the killing of Khobari G
Singh. Thus the only exercise before the High Court, as also here, is to
determine who were the persons who took part in the commission of the
dacoity. ·

It is note-worthy that the prosecution had four sets of witnesses . H
612 SUPREME COURT REPORTS (1992] 2 S.C.R.

A which could establish identity of the dacoity. Three sets became redundant
and only on the basis of one set was identity of the appellants established.
The first set consisted of three injured persons Ramadar Singh, Dinanath
Singh and Dhirja Singh who were not examined at the trial by the prosecu-
~-
-
tion. This set did not help the prosecution at all. The second set consisted
of the evidence of Baliram Singh, P.W.3, Rambali Singh, P.W.4 and Jhuri
B Singh, P.W.9. The names of P.Ws 4 and 9 were not mentioned in the F.I.R.
and their evidence was left out of consideration by the Trial Judge as well ~
as the High Court. Even the statement of P.W.3 was left aside by the High
Court. So thi!' set too did not further the prosecution case. In the third set
was the evidence of P.W.1 Bishwanath Chaubey, P.W.5 Jokhan Bind and
c P.W.8 Chirkut Singh who did not identify any of the dacoits. None of these
witnesses was declared hostile. Thus their evidence rather goes adverse to
the prosecution. The fourth set consisted of evidence of P.W.2 Hira Singh

D
and P.W.11 Dhaniram Singh whose evidence has been relied upon by the
High Court to identify the 5 appellants and on the basis of the very same
evidence two co-accused, that is, Ram Naresh Singh and Charittar Ahir
~ -
were acquitted because P.W.2 named one and excluded the other and
P.W.11 named the other one and excluded the former, giving rise to a
doubt about the complicity of thos_e two. Thus we are left to see whether
the conviction of the appellants can be based on the evidence of these
eye-witnesses P.Ws 2 and 11. ......
E
We have already given a condensed version of Dhaniram Singh,
P.W.11. Now according to the Hira Singh P.W.2, his house is 4-5 houses ~
away from the house of the complainant and when he became awake on ~

hearing the noise he went to see the occurrence taking a torch which kept
F lighting. According to him he hid himself behind a Bahaya tree and from
where he could keep watching the activities of the dacoits whose faces he
saw. As he says he could identify 8 dacoits. These were Munni Singh, Fekoo
Singh, Dadan Singh, Guput Singh and Behari Singh appellants as respec-
tively armed. In addition there were Sukhari Singh (since deceased), Ram
~-
Naresh Singh and Kanhiya Singh who are no longer in the picture. After
G the departure of the dacoits he went close to the scene and found Khobari ~
Singh to have been hit by gun shots and that his condition at that time was
serious. Then he went in the company of P.W.11 firstly towards the hospital
and .then to the Police Station. Acc91ding to this witness though he
focussed the torch for 3 or 4 minutes before he went in hiding, the focus
,>-.~
H did not fall on the faces of the dacoits and after having gone in hiding he
MUNNI SINGH v. STATE [PUNCHHI, J.) 613

had not lit his torch. Yet he claims that he had identified the dacoits in the A
torch light. He is also certain that no dacoit had muffled his face. The
appellants, according to him, had painted their faces but were not in a
position to conceal their identity. He admitted that 3 or 4 days prior to the
incident, a Panchayat had been convened in which Sukhari Singh was asked
to surrender the Tank but he said he would if Khobari Singh demolishes
and surrenders the house built on the bank of the Tank first. And further
B
that when the Panchayat told Sukhari Singh that the house having been
there for a long time, could not be demolished and even Khobari Singh
was not agreeable to do so, all were angry with the accused persons on
account of the Tank.
c
So far as Dhaniram Singh, P.W.11 is concerned, he too admits about
the convening of the Panchayat 3 or 4 days earlier on which account
Sukhari Singh had nursed an angry feeling due to the happenings in the
Panchayat. With regard to the actual ocurrence, P.W.11 says that when the
first shot aimed at him had not hit him, and the second shot had been fired D
at his uncle, he then ran 25-30 steps and hid himself in the field of the
wheat crop and while running he heard the firing of the third shot. At that
juncture he claimed to have kept lighting his torch now and then from the
place of his hiding to see what was happening. The point which rises for
consideration is whether P.Ws.2 and 11 could individually, with the aid of
their respective torches, identify the dacoits which were 25-30 in number E
and would the dacoits let them be identified by letting them switch on their
torches off and on as claimed ? Would these two witnesses not have
attracted attention of the dacoits to be taken care of in priority in their
place of hiding ? It seems to us that seeing the formidable force of tl:_ie
dacoits and their number these two P.Ws. would have been so non-pulsed F
tha~ they would not have dared to betray their presence by switching on
an~ off their torches especially when they were unarmed and were no
match to the might of the dacoits. These two witnesses do not claim that
they could identify the dacoits by means other than their torches. This part
of the stdry of the prosecution obviously does not inspire confidence. It is
,T also worthy of not.ice~hat P.W.11'was injured on the head before he ran G
for safety. That was enough to shake and frighten him. But before the
receipt of such injury he claims to have switched on his torch first and to
have seen in the first glimpse the. appellants and others. But his flash of
the tore~ was met instantaneously with numerous torch· flashes by the
dacoits and it was like d~y light as: said by,P.W.1 Bishwanth Chaubey. It is H
614 SUPREME COURT REPORTS (1992] 2 S.C.R.

A difficult in this situation to believe P.W.11 that he could in a split second
have such a perception so as to identify. all the five appellants and some
others. It is obvious and natural that behind a lit torch darkness prevails
hiding the identify of the torch bearer and persons situated close. So
identity of the dacoits was not possible by P.W.11. Moreover it is ununder-
B standable that when the dacoits had chosen dark hours for committing the
dacoity, obviously to take advantage of the darkness, and when they were
25-30 in number, most of them unknown persons, where was the need for
the appellants to be in the forefront to risk themselves for identification..
This view we are entertaining apart from what the High Court has opined
that muffling of faces and concealment of identify by dacoits is not univer-
.C sally paractised. Thus in the facts and circumstances of the case, we
entertain a grave doubt about the participation of the appellants in the
crime because of the failure of the prosecution to lead convincing evidence
about the identity of the appellants as dacoits. There is even no corrobora-
tion worth the name in the form of recovery of fire arms and other
D weapons, or of the looted articles from the appellants, so as to lend som·e
assurance to the participation of the appellants in the cirme, It may well
be that the motive asserted by the prosecution relating to the dispute about
the pond may have given cause to Dhaniram Singh, P.W.11 to ass_ume that
the appellants were responsible for the dacoity co111!Jlitled in his house and
for Hira Singh, P.W.2, to entertain that belief in ;a sweep.
E
For the foregoing reasons, we find it difficult to sustain the conviction
of the appellants. Accordingly, they are acquitted of the charge. The appeal
is accepted.

V.P.R. Appeal allowed ..