NEBI DUSADH Vs. STATE

JUDGEMENT

(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.