JUDGMENT P.P. Gupta, J.
1. This is a criminal appeal filed by Gujroo against the judgment and order dated 1-5-1991, passed by the Special Additional Sessions Judge, Rae Bareli, in S.T. No. 389 of 1990, convicting the accused-appellant, Gajroo, under Section 395, I.P.C. and sentencing him to undergo R.I. for five years.
2. The present appellant along with three others, viz. Ramgulli alias Ram Charan, Tulsi and Munnilal, was committed to the Court of Sessions. The co-accused, Tulsi and Munnilal were discharged under Section 227, Cr. P. C. by the Court of Sessions at the stage of framing charge. The trial, therefore, took place against the present appellant, Gajroo and the other Ramgulli alias Ram Charan. The second accused Ramgulli alias Ram Charan was however, not found guilty to the charge under Section 395/397, I.P.C. and was accordingly acquitted.
3. The prosecution story, in brief, is that in the night between 20/21-6-1990 at about 1.00 a.m., in villages Nakdaiyapur, Kashimpur and saray Sukh Mangal a dacoity took place in the same transaction. There were 12/13 dacoits in the dacoity, one of whom was armed with a country made pistol and remaining with lathis. According to the prosecution story as disclosed in the First Information Report lodged by informent Ram Prasad, son of Mahroo Pasi, residnet of village Nakdaiyapur, the dacoit armed with country made pistol was identified as Jai Prakash alias Sohan Lal Pasi of informant's village Nakdaiyapur. A written report of this occurrence, which is Ex. Ka-2 on record and which was scribed by one Ram Naresh Tripathi, Pradhan, on the dictation of informant Ram Prasad, was lodged with the police of police station Jais on 21-6-1990 at 8.15 a.m. on the basis of which a case under Section 395/397 of the Indian Penal Code was registered against one named accused and 12/13 unnamed miscreants. The prosecution allegation is that the dacoits had looted wearing ornaments of ladies and had inflicted injuries to them. Smt. Nanka, Ram Nath, Raghu Nath, Visram, Sarjoo Dei and Barka alias Jhumman wife of Ram Prasad and two more injured were got medically examined and injury reports were obtained, which are Exts. Ka-6 to Ka-11 on record. It is also alleged that it was on 30-6-1990 at about 10.30 p.m. that Sub-Inspector Kashi Ram Gupta Posted at Police Station Bachhrawan, on the basis of information happened to arrest 8 miscreants, who had collected and had made preparation for committing dacoity. The present accused Gajroo and Ram Gulli alias Ram Charan were among them. Information regarding their arrest was given to other Police Stations through Police Control Room including Police Station Jais, whereupon the present two accused persons along with others, who were kept. Bapardah were subjected to test identification in connection with dacoity of the present case. This test identification parade was held in the District Jail, Rae Bareli on 7-8-1990, which was conducted by Special Magistrate Sri Ganga Bux Singh. During this identification parade 10 suspects including present two accused persons were subjected to test identification proceeding by 10 witnesses. A memo of test identification parade prepared in this connection is Ex. Ka-3 on record. Accused Gajroo was correctly identified by witnesses Shitlu son of Sanau, resident of Saray Sukh Mangal, Raghu Nath son of Visram, resident of village Kashimpur, and Ram Raj son of Ram Dayal, resident of village Kashimpur. Out of these witnesses, Shitlu and Raghu Nath committed no mistake but witness Ram Raj committed 7 mistakes.
4. The prosecution examined nine witnesses in all in support of its case, viz. P.W. 1 Shitlu, P.W. 2 Raghunath, P.W. 3 Ram Prasad, P.W. 4 Ganga Bux Singh, Special Magistrate, who had conducted test identification parade on 7-8-1990 in the District Jail, Rae Bareli, P.W. 5 Head Constables Ram Asrey Tiwari, P.W. 6 S.I. Kashi Ram Gupta, P.W. 7 Girish Chand, S.H.O., Jais, P.W. 8 S.S.I. Quazi Sirajuddin, I.O., and P.W. 9 Ram Raj.
5. On an assessment of the entire evidence led by the prosecution the learned Judge found the present appellant guilty of the charge under Section 395, I.P.C. and convicted and sentenced him as above. The other accused Ramgulli alias Ram Charan was, however, not found guilty and was acquitted of the charge under Sections 395, 397, I.P.C.
6. Feeling aggrieved from the aforesaid judgment and order, the accused-appellant, Gajroo, has come up in appeal before this Court. Since the accused-appellant expressed his inability to engage a counsel at his own expense, Begum Sabiha Kamal was appointed Amicus curiae to defend the appellant by this Court.
7. Learned Amicus curiae and the learned A.G. A. were heard at length and the record of the case was perused. Smt. Begum Sahiha Kamal argued the case on behalf of the appellant extremely well and thoroughly prepared the case on questions of fact and law involved therein.
8. The first point that was argued on behalf of the accused-appellant was regarding delay in holding test-identification parade. It was submitted that the appellant Gajroo was not put up for test-identification parade promptly. The test-identification parade was held 47 days after the occurrence and 37 days after his arrest. No explanation has been offered for the delay in holding the test-identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable identifying the witness and to make a note of his features. Moreover, there was a long interval of about 47 days from the date of occurrence to the date when the test-identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade. This delay in holding the identification parade is, therefore, full of suspicion.
9. The conviction of the appellant is based solely with reference to his identification at the identification parade by three witnesses, viz. P.W. 1 Shitlu, P.W. 2 Raghu Nath and P.W. 9, Ram Raj. Since there is no other incriminating evidence against the appellant, this evidence of identification has to be scrutinised very carefully and cautiously. The learned Addl. Sessions Judge himself has not proved the testimony of P.W. 9 Ram Raj on the ground that his evidentiary value at the test identification parade comes to 30% which in his opinion cannot be given much credence. This witness out of 10 parades had correctly identification only three suspects and committed mistakes in the remaining seven parades. This performance, therefore, does not inspire confidence and the trial Court has rightly discarded his testimony.
10. There is yet another reason to discard the evidence of Ram Raj. During trial he stated that he had identified two witnesses during identification parade. He, however, did not state and point out at the trial for as to who amongst the accused persons were those two miscreants whom he had identified during identification parade. As such, identification of two witnesses during the identification parade has no value.
11. There are now left two witnesses, viz, P.W. 1 Shitlu and P.W. 2 Raghu Nath.
12. Admittedly no dacoity was committed in the house of P.W. 1 Shitlu. It was committed in the house of his neighbour P.W. 9 Ram Raj (P.W. 4). According to this house, which is in the east, he claims to have seen the miscreants through the window of his house which is situated in the north. The house of Ram Raj P.W. 4 is situated in the west of the house of this witness. He claims to have seen the miscreants through this window when they were committing dacoity in the house of Ram Raj. From the topo-graphy given by him, it cannot be believed that this witness could have seen and identified the miscreants throught the window, situated in the north, in the light of chimni which was burning in the east of his house while the dacoity was committed in the west, in the house of Ram Raj. Further this witness has stated in his cross-examination that he had received the news from the Police Station regarding the arrest of the dacoits. Police Jeep had arrived and he was first taken to the Police Station. Subsequently, however, he retracted from this part of this statement, but if his statement is read as a whole, it becomes abundantly clear that there was not sufficient light in which he could have seen and identified the miscreants. The reason for his correctly identifying the appellant should be that he was first taken to the Police Station in a Police Jeep where he was shown the arrested dacoits including the appellant on account of which he could correctly identify him at the test identification parade. For this reason, I do not think that he is a reliable witness on whose testimony any credence can be placed.
13. The learned Addl. Sessions Judge also appears to have some doubt regarding the identification of the miscreants by this witness. He has stated in his judgment that evidence of the other witness, viz. Raghu Nath, alone is sufficient to prove the charge of dacoity against the accused-appellant Gajroo because according to his deposition it was the accused-appellant Gajroo, who had caught hold of his five years' old infant child, during the course of dacoity, for which this witness had prayed for mercy.
14. I have carefully gone through the statement of P.W. 2 Raghu Nath. He has stated that a dacoity was committed in his house also on the date of occurrence. There were about 10/11 dacoits in the dacoity. According to him the dacoits had caught hold of his five years' old child. He prayed for mercy and only then the dacoits left his child unhurt. According to him, the accused-appellant Gajroo had lifted his child and had threatened to kill him. These facts prevailed upon the learned Addl. Sessions Judge for holding that the evidence of Raghu Nath alone is sufficient to prove the charge of dacoity against the present appellants, Gajroo. In his estimate, this witness, Raghu Nath, have had ample opportunity to see and identify the appellant, Gajroo, who had caught hold of his infant child.
15. I find from the record that this story that the dacoit Gajroo, the present appellant had lifted the child and threatened to kill him? is not supported by any other cogent and reliable evidence. Raghu Nath claims to have gone to the Police Station the next day at 7.30 a.m. He was accompanied by Bhartiya Vakil also. He claims to have lodged a written report at the police station. A copy of it was given to him by the Mohorrier, who had prescribed the report. No such report has either been filed or proved in the case. No explanation has been given for not bringing this report on record. In the absence of this report, it is difficult to ascertain as to what were the facts alleged in the F.I.R. It cannot be presumed that Raghunath had alleged in his F.I.R. that his five years' old child was lifted and threatened to be killed by one of the dacoits. No such statement was ever given by him to the I.O. under Section 161, Cr. P. C. All these circumstances go against this witness Raghu Nath and it is difficult to believe his statement that has come for the first time during trial regarding lifting of his child and threatening to kill him by the dacoits. It appears that some improvement has been made in the case by the prosecution just to make the Court believe that this witness had ample opportunity to identify the appellant. In my opinion, the testimony of this witness regarding identification is also not free from doubt.
16. There is yet another reason for not giving credence to the witness Raghu Nath. In his cross-examination he has stated that he had not seen the dacoits committing dacoity with his own eyes since he was overpowered by them. Thus on his own admission he have had no opportunity to see and identify the dacoits. As such the question of his identifying the present accused-appellant at the time of dacoity cannot be accepted as true.
17. Thus, out of three witnesses, allegedly identified. The appellant during the identification parade, the testimony of none of them is beyond suspicion. It will therefore, not be safe to base the conviction of the appellant on the testimony of these identifying witnesses.
18. There is yet an extremely important aspect of this case. The F.I.R., Ex. Ka-2, lodged by Ram Prasad mentions that one Jai Prakash alias Munna, son of Rohan Lal Pasi, belonging to his village, was also amongst the dacoits who was identified by him during the daocity. He had put a country made pistol against the chest and so he had come very close to him, thereby giving an opportunity to identify him. The I.O., however, found as a fact that this Jai Prakash alias Munna was not involved in the dacoity and so a final report was submitted against him. This leads me to the conclusion that the witnesses have had no opportunity of identifying the miscreants. The possibility that a false F.I.R. against him was lodged can also not be ruled out. The case against the named accused, viz. Jai Prakash alias Munna was found totally false by the I.O. This fact again casts a very serious doubt on the authenticity of the prosecution case.
19. As a discussion of the entire evidence laid by the prosecution, I am satisfied that the only evidence of identification against the present appellant is not satisfactory to base his conviction on it. There is no other incriminating evidence against the present appellant to hold that he was amongst the dacoits who had committed the said dacoity in the houses of Raghu Nath and others. He is, therefore, entitled to acquittal.
20. For the reasons given above, the appeal is allowed and the conviction and sentence of the appellant, Gajroo are set aside. He is acquitted of the charge under Section 395, I.P.C. and is ordered to be released forthwith.