JUDGMENT Wali Ullah, J.
1. Dhaja Rai and Jitan Ahir appeal against their conviction of an offence under Section 395, Penal Code, and the sentence of seven years rigorous imprisonment passed upon each of them by the leaned Sessions Judge of Ghazipur at Ballia. (After stating the facts his Lordship proceeded:)
2. The evidence against these appellants consists entirely of the testimony of identifying witnesses. No property taken away by the dacoits appears to have been recovered from the possession of any of the two appellants. Therefore the ¦case against the appellants rests entirely on the testimony of these witnesses. Each one of the appellants has been identified as mentioned above by five witnesses. If these witnesses are not believed, it necessarily follows that the case against them will fail.
3. The leaned Sessions Judge has written a very careful and elaborate judgment discussing the evidence of each one of the witnesses. He has, further considered the various points urged by the defence and to my mind has written a very careful and well balanced judgment. He has believed the five prosecution witnesses against each one of the appellants. Leaned Counsel for the appellants has laid the evidence of these witnesses before me and has submitted exhaustive arguments regarding the same. The main contention of the leaned Counsel is that, in the circumstances prevailing at the time of the commission of the dacoity, particularly in the conditions of light then available, it is hard to believe that these witnesses could have had sufficient opportunity of marking the features of the culprits. Leaned Counsel contends that the evidence in the case indicates that it was a dark night and that the only light available was that produced by the flashes of the electric torches in the hands of the dacoits. It is said that in these circumstances the witnesses specially some of them who were lying on takhats in one of the cattle sheds, could not be expected to see much of what was going on and particularly to notice the features of any of the culprits. Again, leaned Counsel has emphasized the fact that the identification in Jail by the witnesses took place some 10 or 11 months after the commission of the dacoity. It has been argued that after the if lapse of such a length of time the witnesses, even they had seen the culprits at work during the progress of the dacoity, could not be expected to identify any of them. Lastly it has been contended, as was contended before the leaned Sessions Judge, that the circumstances of the case clearly suggest that the witnesses must have had an opportunity of seeing the accused before the identification parades, which, as mentioned above, were held in October 1945 and January 1946. Leaned Counsel has further contended that some of these witnesses, namely, Gajalhar Misir, Brijraj Misir, Chandrika Rai and Ram Kripal are witnesses who figured among the prosecution witnesses in sessions trial No. 46(B) of 1945 in which six persons were put upon the trial, but they were all acquitted by the leaned Sessions Judge on 22-9-1945. The argument of the leaned Counsel is that these witnesses must be deemed to have been disbelieved so far as those six persons were concerned. It may, however, be noted here in passing that so far as this case is concerned there is nothing on the record to give any t indication as to the specific part actually played by these witnesses in the course of the earlier trial. We do not know if any of these witnesses was definitely disbelieved on the ground that he was a witness of untruth. It may be that in the case of those persons the evidence of these witnesses may have been considered to be insufficient for the reason that perhaps one only may have identified an important accused person. Unless some more facts are placed before the Court, obviously it is impossible to attach any importance to the criticism beyond the bare fact that these witnesses too appeared as prosecution witnesses in the earlier trial which ended in the acquittal of the accused persons.
4. The crucial question in this case, as in most cases where identification evidence alone is available is obviously a question whether in the circumstances prevailing at the time of the dacoity the witnesses could be reasonably expected to notice the features of the culprits whom they saw. I have considered the evidence of the witnesses and have given very careful consideration to the arguments urged by the leaned counsel. Gajadhar Misir is a person in whose house the dacoity took place. Ram Kripal is his cousin. Baijnath Kandu is a servant of Gajadhar Misir. These three witnesses were the inmates of the house dacoited. According to the evidence, the dacoity continued for quite a long time and property worth a very substantial amount, which is described in the list, Ex. P-2, was taken away by the dacoits. Again, according to the prosecution evidence, a number of electric torches were used by the culprits at the time of the commission of the crime. It is perfectly true, as the leaned Counsel for the appellants has contended, that if an electric torch is flashed on the faces of the victims, obviously those persons (victims) would be unable to identify the person or persons flashing the electric torches; but there is nothing to indicate that that is what actually happened in this case. One would expect that such an incident would be very rare. Electric torches or any other light carried by the culprits, who proceed to commit a dacoity on a dark night, is taken by the culprits in order primarily to help them in finding their way about both outside and inside the house dacoited. It would, therefore, be flashed to discover the things inside the house or inside the room or rooms. It follows, therefore, that if a number of electric torches are simultaneously used by quite a number of persons while the dacoity is in progress, the witnesses who are in close proximity to the culprits can and may very probably have noticed the features of the culprits. It seems, therefore, that unless reasons are indicated Which would show that a particular witness in spite of such light was unable to identify, there would hardly be any reason for distrusting his testimony on this ground alone. Leaned Counsel has very strongly pressed that, in view of certain rulings given by High Courts other than our own, it is wholly unsafe to accept the testimony of witnesses who go to the identification parade after the lapse of a period of some months from the date of the commission of the dacoity. Leaned Counsel has referred me to the case in Dwarka Singh v. Emperor ('47) 34 A.I.R. 1947 Pat. 107 Again reference has been made to Hazara Singh v. Emperor ('47) 34 A.I.R. 1947 Pat. 157. Reference has also been made to Chanan Singh v. Emperor ('33) 20 A.I.R. 1933 Lah. 299. These are all cases which, to my mind, do-not purport to lay down any principle which t divorced from the facts of those individual cases, can be of any help in deciding whether or not a certain set of witnesses who say that they have-identified a particular accused or a group of accused persons should be believed. It is obviously a question of believing or not believing a set of witnesses. Again, this must obviously be a question depending upon the facts and circumstances of each case. The leaned Judges, who have decided the cases to which my attention has been drawn, felt that in the circumstances of those-cases as disclosed by the evidence, they were unable to place any reliance on the testimony of those witnesses. To say the least, to lay down a hard and fast rule, with regard to the period of time which may elapse between the commission of a crime and the identification of the culprits, would be to impose an arbitrary rule which neither common sense nor the statute of law of evidence can or would justify. If there were such. a rule, it would be the easiest thing for a culprit to avoid his arrest for a certain period of time and then turn up with confidence that he can go with impunity because of the lapse of the requisite period of time.
5. I have considered the evidence of these five witnesses against each one of the appellants and I am fully satisfied that the leaned Judge has very rightly believed this evidence and convicted the appellants. The sentence of seven years rigorous imprisonment passed upon each of the appellants is, in my opinion, in no way excessive inasmuch as it was a very serious case of an armed dacoity.
6. The result, therefore, is that the appeal of both the appellants is dismissed.