DULAREY Vs. THE STATE
LAWS(ALL)-1955-11-51
HIGH COURT OF ALLAHABAD
Decided on November 21,1955

DULAREY Appellant
VERSUS
THE STATE Respondents

JUDGEMENT

H.P. Asthana, J. - (1.) THIS is an appeal by one Dularey who has been convicted by the learned Addl. Sessions Judge, Etawah, Under Section 395/397 I.P.C. and Section 19(f) Arms Act for committing a dacoity along with five or six other persons on the night between the 21st and the 22nd December 1951 at the house of Sheo Balak in Nagla Manno, which is a hamlet of Kanno within police station Phaphund, in the district of Etawah, and for being in possession of a kanta during the commission of the aforesaid dacoity.
(2.) THE evidence against the applicant mainly consist of his identification by five witnesses, namely, Sheo Balak, Ram Parshad, Hira Lal, Chaturi and Matadin. The accused was arrested on the 8th January 1952 and his identification proceedings were held in the District Jail, Etawah, on the 18th March 1952. It appears from the identification memo (Ex. P -27) that each of the five witnesses who identified him in the test identification in the jail committed one mistake, with the result that each of those witnesses committed 50 per cent mistakes during the identification. The learned Sessions Judge, in spite of the unsatisfactory nature of the identification evidence so far as this accused was concerned, has considered it fit to rely on that evidence and has convicted him of the charge Under Sections 395/397 I.P.C. In view of the mistake committed by each of the above witnesses I am of opinion that they can hardly be called good witnesses and it will be very unsafe to convict the accused on such evidence. The other kind of evidence which has been relied on by the learned Addl. Sessions Judge is that one of the accused, Wazira, who is said to have been arrested on the spot at the time of the dacoity and whose name is mentioned in the first information report, stated at the time of his arrest that this accused as well as four other persons, namely, Nawabsingh Chhoteysingh, Balwantsingh and Bhajan Singh, were among his companions at the time of the commission of the dacoity. It may be mentioned here that the accused Wazira during his statement in the court of the committing magistrate and in the court of the learned Sessions Judge, denied the fact that he had mentioned any of the above persons as his companions in the dacoity. In fact, he denied that he himself had committed any dacoity Chhoteysingh, Balwantsingh and Bhajansingh were also accused in this case and in spite of the fact that it was mentioned in the first information report that they had been named by the accused Wazira as his companions in the dacoity, they have been acquitted by the learned Addl. Sessions Judge. Nawabsingh does not appear to have been sent up for trial in this case. I am somewhat surprised that the learned Sessions Judge has relied on this kind of alleged statement which in fact is no legal evidence at all. There is no other evidence against the Appellant.
(3.) IN my opinion the evidence on the record which has already been referred to above is wholly insufficient for the conviction of the Appellant either Under Sections 395/397 I.P.C. or Under Section 19(f) Arms Act. It may be mentioned here that the convention Under Section 19(f) Arms Act is not based on the recovery of the kanta from the possession of the Appellant on his arrest. It is based on the fact that the prosecution witnesses while identifying the Appellant stated that he was the person who was armed with the kanta. The other evidence in respect of this charge was that in the first information report it was mentioned that the accused Wazira had stated that the Appellant was armed with a kanta. I have already held above that the evidence of identification is of a very unsatisfactory nature and cannot be relied on in support of the conviction of the Appellant Under Sections 395/397 I.P.C. When the conviction of the Appellant Under Sections 395/397 I.P.C. cannot be maintained in view of the unsatisfactory nature of the identification proceeding, the conviction Under Section 19(f) Arms Act, which is based on the same evidence, is also not sustainable.;


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