JUDGMENT U.S. Tripathi, J.
1. This appeal has been directed against the judgment and order dated 17-2-1981, passed by Sri D.C. Srivastava, the then Addl. Sessions Judge, Gyanpur, district Varanasi in S.T. No.9 of 1980, convicting the appellant under Section 396 IPC and sentencing him to undergo R.I. for a period of seven years and to pay a fine of Rs. 500/-. In default of payment of fine he was further sentenced to undergo one year's R.I.
2. The prosecution story, briefly stated, was as under :-
Raj Narain (PW4) had his house at village Pandeypur, P.S. Suriyawa, district Varanasi. Ram Adhar deceased was uncle of Raj Narain (PW4). On the night of 16-10-1979, Raj Narain was sleeping in his verandah of Dalan. Ram Adhar, deceased was sleeping outside the house under a Neem tree. Ladies of his house were sleeping inside the house. At about 10-11 p.m. 10-11 dacoits armed with country made pistols, lathis and torches came to the house of Raj Narain, (PW4). The dacoits caused injuries to Raj Narain (PW4). On his alarm Ram Adhar, deceased woke up and tried to save him. One of the dacoits caused lathi injury on him and other one fired country made pistol. Thereafter the dacoits broke open the main door of the house and by entering into the house started looting the household properties including the ornaments of the ladies and clothes. Hearing the alarm Jagdamba (PW1), Ram Singar (PW3) and others came to the spot, flashing their torches. One Harihar set fire in the nearby hut, which emitted sufficient light. The inmates of the house and the witnesses recognised the faces of the dacoits in the light of the torches and flames of burning hut. When the accused left the spot. Raj Narain (PW4) came to Ram Adhar and found him dead.
3. Raj Narain (PW4) prepared report Ext. Ka-1 of the occurrence and came to the police station Suriyawa in the same night at 4.00 a.m. and lodged the report. Chick F.I.R. Ext. Ka-10 was prepared by constable Shri Nath, who made an endorsement of the same at GD report, Ext. Ka-11 and registered a case under Section 396 IPC against unknown persons.
4. Raj Narain (PW4) was sent to Primary Health Centre Suriyawa for medical examination, where he was medically examined at 7.30 a.m. on 17-10-79 by Dr. Rajendra Mani Tripathi (PW12), who found one incised wound on the left side of root of neck, two lacerated wounds on left side of chest and right side of chest respectively, five abrasions and one contusion.
5. The investigation of the case was taken up by Sri Ram Sanjeevan Singh (PW13). The I.O. proceeded to the sopt along with the police force. The dead body of Ram Adhar was lying on the spot. Inquest of the dead body was conducted and inquest report and other relevant papers were prepared. Thereafter the I.O. went to Primary Health Centre, Suriyawa, where he interrogated Raj Narain (PW4). He again came to the sopt and interrogated Smt. Ganga Devi (PW2) and other witnesses. He inspected the place of occurrence and prepared site plan Ext.Ka-12. He also took into possession blood stained and simple earth and prepared recovery memo Ext.Ka-14. He inspected the lantern and prepared recovery memo. Sample of burnt ashes of hut was also taken into possession and recovery memo Ext. Ka-16 was prepared. The I.O. also recovered empty cartridge and blasted cracker from the spot and prepared recovery memo Ext. Ka-17 and 18. He also inspected the boxes from which articles were looted and prepared recovery memo Ext.Ka-19. The I.O. also inspected the torches of Laxmi Narain and Om Prakash and prepared inspection memo Ext.Ka-21. A bag and a lungi left by the dacoits were also found on the spot, which were taken into possession by the I.O. vide recovery memo Ext. Ka-22. On 18-10-79, the I.O. interrogated Jagdamba Prasad (PW1) and Ram Singar (PW3).
6. The autopsy on the dead body of Ram Adhar was conducted on 18-10-79 at 7.30 a.m. by Dr.J.S. Pawar (PW10), who found the following ante mortem injuries on the person of the deceased :-
7. Gun shot wound of entry 7 cm x 6 cm x chest on right side of chest 1 cm to the right of nipple. No blackening and charring.
8. The internal examination showed 4th and 5th ribs below injury No. 1 ruptured. The right lung and membrane were also ruptured 27 small pellets and one wad were recovered below injury No. 1 In the opinion of the Doctor cause of death was shock and haemorrhage as a result of ante mortem injuries. The Doctor prepared post mortem report Ext. Ka-8.
9. On 19-10-79, the I.O. Sri Ram Sanjeevan Singh (PW13) got information that one dacoit was coming from side of Janghai Railway Station, who was having illicit arms. Believing on the above information he collected the witnesses and laid ambush in the Nali towards south of Primary Pathshala Harhua. At about 7.30 a.m. the appellant was seen coming with a bag in his hand. On the pointing out of the informer he was intercepted and apprehended. On his personal search he was found in possession of one country made pistol and two live cartridges. Recovery memo was prepared on the spot and the appellant was made Baparda. He was taken Baparda to the police station, where he was kept Baparda and was sent to jail in Baparda condition.
10. The identification of the appellant was conducted by Shri Noor Mohammad, (PW14), the then SDM, Gyanpur, district Varanasi on 20-11 -79 at sub Jail Gyanpur. The appellant was correctly identified by Jagadamba Prasad (PW1), Ganga Devi (PW2), Ram Singar (PW3), Lalita Devi and Kashi Prasad out of seven witnesses who had gone to identify him. The SDM prepared identification memo Ext. Ka-26.
11. On receipt of the identification memo and on completion of remaining investigation, the I.O. challaned the appellant through charge sheet Ext.Ka-34 under Section 396 I.P.C.
12. The case of the appellant was committed to the Court of Session and he was charged and tried for the offence punishable under Section 396 I.P.C. He pleaded not guilty and contended that he was falsely implicated on account of enmity with the police as he was once acquitted in another dacoity case.
13. The prosecution in support of its case examined Jagdamba Prasad (PW1), Smt. Ganga Devi (PW2), Ram Singar (PW3), Raj Narain (PW4) and Kashi Prasad (PW9) as witnesses of fact, besides, S.I. Shankar Das (PW5), Constable Ram Bachan Yadav (PW6), Constable Bhibani yadav (PW7), Constable Raj Narain Singh (PW8), Dr. J.S. Pawar (PW11), Dr. Rajendra Mani Tripathi (PW12), Ram Sanjeevan Singh, I.O. (PW13) and Noor Mohammad, SDM, (PW14) as formal witnesses. The appellant did not adduce any evidence in his defence.
14. The learned Sessions Judge on considering the evidence of the prosecution held that the prosecution succeeded in establishing beyond doubt that the appellant was one of the dacoits in the dacoity in question in which one of the dacoits killed Ram Adhar during the commission of dacoity. Therefore, his guilt for the offence punishable under Section 396 I.P.C. was fully established. With these findings he convicted him under Section 396 I.P.C. and sentenced as mentioned above.
15. The appellant has challenged his above conviction and sentence in this appeal.
16. Heard Sri P.N. Mishra, learned Senior Counsel for the appellant, learned A.G.A. for the respondent and perused the record.
17. According to the prosecution on the night of 16-10-79 at about 11.00 p.m. a dacoity took place in the house of Raj Narain (PW4) and during course of dacoity one of the dacoits killed Ram Adhar, deceased. The appellant has not disputed the factum of dacoity in the house of Raj Narain (PW4) on the night of the occurrence and death to Ram Adhar in the said dacoity. The prosecution examined Jagdamba Prasad (PW1), Smt. Ganga Devi (PW2), Ram Singar (PW3) and Kashi Prasad (PW9) as witnesses of fact. All the above witnesses have categorically stated that on the night of occurrence 10-11 dacoits raided the house of Raj Narain (PW4), caused injuries to Raj Narain and Ram Adhar and by breaking open the main door entered into the house and looted the household properties. The I.O. Shri Ram Sanjeevan Singh (PW13), visited the sopt on the next morning and found the dead body of Ram Adhar on the spot, Dr. Rajendra Mani Tripathi (PW 12) examined the injuries of Raj Narain on the next morning. Dr. Pawar (PW13) conducted the autopsy on the dead body of Ram Adhar and found gun shot injuries on his person, which resulted into his death. The I.O. also found blood, broken boxes, one empty catridge and one blasted cracker on the spot. The recovery of above things on the sopt and the medical evidence fully corroborated the evidence of ocular witnesses on the factum of dacoity and death of Ram Adhar in the said dacoity. Therefore, the prosecution successfully proved the factum of dacoity on the night of occurrence in the house of Raj Narain and death of Ram Adhar during the course of dacoity.
18. The evidence against the appellant is only that of identification, therefore, it is to be considered whether there was sufficient light on the sopt and the witnesses had opportunity to recognise the face of the dacoits.
19. The ocular witnesses named above had stated that inside the house a lighted lantern was emitting light; that the witnesses who came from the village, namely, Jagdamba Prasad (PW1), Ram Singhar (PW3) and Kashi Prasad (PW9) had their torches. They also stated that some dacoits were also having torches and were flashing the same during the course of dacoity. It has also come in the evidence of the above witnesses that one Hari Nath had set fire in the hut near the house of Raj Narain, which emitted sufficient light on the sopt and the faces of dacoits were seen in the said light. The I.O. also inspected the lantern and torches of the witnesses. He had also collected sample of burnt ashes from the sopt. The place where the hut was burnt was at a distance of only 13 paces from the main door of Raj Narian. It is also in the evidence of the witnesses that the dacoits were entering into and coming out of the house during the course of dacoity. The dacoits also caused injuries to Ram Narain (PW4) who had sustained lacerated wound, incised wounds, contusion and abrasions, which shows that he had come into close contact of the dacoits. The dacoits had also entered into the house and lady members had also opportunity to see the faces of the dacoits. In this way the prosecution has successfully proved that there was sufficient light on the sopt and the witnesses had full opportunity to recognise the faces of the dacoits.
20. In the identification parade, the appellant was correctly identified by Jagdamba Prasad (PW1), Ganga Devi (PW2),Ram Singar (PW3), Lalita Devi and Kashi Prasad. According to the evidence of Noor Mohammad (PW14) these witnesses had not committed any mistake. Thus, the performance of the above witnesses who identified the appellant in the test identification parade was cent percent. The prosecution has examined Jagadamba Prasad (PW1), Smt. Ganga Devi (PW2), Ram Singar (PW3) and Kashi Prasad (PW9). However, Ram Singar (PW3) stated in his evidence that prior to identification the Jail he had seen the appellant at Durgaganj Bazar. He was declared hostile.
21. Learned counsel for the appellant contended that admittedly the dacoity took place on 16-10-1979 and the appellant was arrested on 19-10-1979, but his identification was conducted on 20-11-1979 i.e. after about a month and, therefore, by that time the memory of the witnesses regarding features of the dacoits have faded from their mind, specially when there is no evidence on record to show that the witnesses identified the appellant by any special identifying feature and, therefore, the identification was due to some extraneous aid such as the appellant was shown to the witnesses after his arrest. Learned counsel placed reliance on Apex Court's decision in Satrughana alias Satrughana Parida v. State of Orissa 1995 Supp(4) C 448.
22. In the above case appellant Ravin Kandy was arrested on November 22 1982 and other appellants were arrested on November 12 1982. The identification parade was held on December, 10 1982i,e. more than 15 days after the arrest. The prosecution had not advanced any reason in not holding the identification parade promptly. Held; that unless there is good reason for delay the value regarding the evidence of identification gets adversely affected. This dilution to the evidentiary value of the identification by the witnesses who claimed to have seen the accused on the night of the occurrence almost one and half month back, who did not in their statement before the police or in the first information report reveal any special features for the identification, is a matter which weighs against the prosecution, It must be remembered that the accused parsons are required to be produced before the Court latest within 15 days of their arrest and therefore, it would be reasonable to infer that they were so produced, There is nothing on record to show that the prosecution had taken care to ensure that their identity was not revealed when they were taken to the Court and produced as required by law. In these circumstances when the prosecution witnesses had admitted in their oral statement that they had not noticed any special identifying features, it becomes unsafe to place implict reliance on the evidence regarding identification emanating from the proceedings at the test identification parade. In these circumstances since there is no other corroborative evidence, their Lordships found it difficult to place implict reliance on the identification made at the test identification parade. Their Lordships were, therefore, of the opinion that the appellants were entitled to benefit of doubt.
23. In the instant case there is no evidence to show that the prosecution witnesses had noticed any special identifying features of the appellant. They had simply stated that they saw the appellant at the time of dacoity and in the identification parade and not in between it. In the instant case as mentioned above the dacoity took place on 16-10-79, the appellant was arrested on 19-10-79 and identification parade was conducted on 20-11-79 i.e. after a month of his arrest. There is also no evidence in this case that the appellant was not produced in the Court for obtaining remand in between his lodging in the jail and conducting of identification. There is also no evidence that when the appellant was brought before the Court for taking remand, every precaution was taken to conceal his identity from the witnesses. Thus, the contingency pointed out by the Apex Court in the above noted case are fully applicable to the facts of the present case and in these circumstances I have no option but to hold that in the absence of any corroborating evidence it is difficult to place implict reliance on the identification made at the test identification parade. Therefore, the appellant is entitled to benefit of dobut and acquittal. The appeal thus, succeeds, The appeal is accordingly allowed. Conviction and sentence of the appellant under Section 396 I.P.C, is set aside and he is acquitted of the said offence, He is on bail granted by this Court. He need not surrender. His bail bonds are cancelled and sureties discharged.