JUDGMENT N.S. Gupta, J.
1. Accused appellants Rajveer, Dammo and Roop Ram named above were convicted by Sri K.K. Sharma, the then IVth Additional Sessions Judge, Mathura vide his judgment and order dated 5-9-1980 under Section 395, I.P.C. and were sentenced to undergo R.I. for a period of five years each. Aggrieved of the said judgment and order they have come up in appeal before this Court.
2. Since both these appeals arose out of one and the same judgment, they are being disposed of by this judgment as follows:-
The prosecution claimed that on the intervening night of 31 -1 -1979/1 -2-1979, at about 12.30 a.m., an armed dacoity was committed at the house of Om Prakash, P.W. 1 in village Chandpur, Police Station Nauzhil, District Mathura, in which cash, clothes, gold and silver ornaments were looted away by the bandits. A lantern was burning inside the house of Om Prakash, PW 1 at the time of occurrence. Hearing the" noise of commission of dacoity, villagers arrived at the spot who had torches in their hands. The heap of straw was burnt at two places by the villagers which created sufficient light at the spot and which enabled the villagers to see the faces of the bandits. The prosecution further claimed that an encounter between the villagers and dacoits had also taken place while dacoits were running after committing dacoily. In order to threaten the villagers the bandits had thrown away hand graned which exploded and caused a number of injuries to the various villagers. The dacoits made good their escape. The prosecution maintained that the Kanchan son of Revti of village Chandpur was one of the bandits.
3. The First Information Report about this occurrence was lodged by Sri Om Prakash, PW 1 'at police station Nauzhil on I -2-1979 at 9.50 a.m. The police station Nauzhil lay at a distance of about five miles from village Chandpur, the place of occurrence. The accused Kanchan (who has been since acquitted by the trial judge himself) was named as an accused person in the FI.R. No description about the facial expression etc. of any other bandits who was 7.0 mark were mentioned in the F.I.R.
4. Investigation of the case was immediately taken up by S.I. Sri Nathu Singh Yadav, PW 11, who was then working as S.H.O. at police station Nauzhil. He immediately rushed to Nauzil hospital and recorded statement of Om Prakash, PW 1, Virendra, PW 6 and Hukum Chand, PW 9 and other injured witnesses of the occurrence. He there after rushed to the scene of occurrence viz. village Chandpur at about 1.00 p.m. S.H.O. Sri Nathu Singh Yadav reached on Dharashala of village Baroth where he saw two persons sitting in the Varandah of Dharanshala. One of whom was accused appellant Dammo, who was arrested along with a Potli containing some looted clothes. His other associate Sukhi ran away from the spot. Dammo revealed is the complicity of accused appellant Rajveer and Roop Ram in the occurrence of this case. On the bais of the statement of the accused appellant Dammo, the Investigating Officer, S.H.O. Nathu Singh Yadav arrested the accused appellant Rajveer and Roop Ram from the Gher of Dharampal. All these three accused appellants were immediately made Baparda and were sent to jail.
5. Identification' proceedings in respect of all these accused appellants were conducted by Sri L.P. Gupta, PW 5, Special Executive Magistrate, Mathura on 27-2-1979, wherein on Prakash, PW 1, Virendra, PW 6, Hukum Chand, P.W 9 as also Mahendra had correctly identified the accused appellants. After needful trial into the matter, the learned trial Judge acquitted the mainted named accused Kanchan. He also dis-believed recovery of looted clothes from the possession of accused appellant Dammo and acuitted him under Section 412, I.P.C. However, placing reliance upon the identification evidence of the aforesaid witnessess the learned trial Judge convicted and sentenced the accused appellants as aforesaid. Hence the appeal.
6. I have heard Sri P.N. Misra, learned Senior Advocate and Sri S.V. Goswami, Advocate for accused appellant Rajveer and Sri Brijesh Sahai, learned counsel for accused appellants Damma and Roop Ram and Sri Jitendra Singh, learned Addl. Government Advocate for State, considered their contentions and have gone through the facts and circumstances of the case. The factum of dacoity in question was not disputed before this Court by the learned counsel for the appellants.
7. It was vehemently argued by the learned counsel for the accused appellants that the accused appellants were in fact not kept Baparda. They were shown by the police to the witnesses. The identification evidence of the three witnesses of fact relied upon by the learned Judge was a got up one and the learned judge grossly erred in convicting the accused appellants on the basis of the said evidence.
8. Sri P.H. Misra learned Senior Advocate appearing on behalf of the accused appellant Rajveer relying upon the preposition of law laid down by the Apex Court in Satrughana Alias Satrughana Parida v. State of Orissa reported in 1996 Supp (4) SCC 448 has reemently argued before him that the identification parade of the accused appellalnts was admittedly held after 27 days of the occurrence. It was argued that there was not an istaor evidence, on record to prove that the accused appellants were brought Baparda after the first remand and were kept Baparda till the date of their identification. The learned appellant counsel argued that it was for the prosecution to adduce cogent evidence before the trial judge that right up from the date of arrest till the date of identification proceedings, the accused appellants were kept Baparda. Since no explanation was forthcoming from the side of prosecution much less the evidence on record that the accused were kept Baparda after the first remand, the contention of the accused appellants that they were shown by the police to the witnesses prior to the identification parade should be believed.
9. It is apparent from the record of the case that the witnesses of fact examined before the court below viz. Om Prakash, PW 1, Virendra, PW 6 and Hukum Chand, PW 9 did not reveal either in their statement before the police or in the F.I.R. any special feature of the accused appellants. It was, therefore, not possible for these witnesses to have laid hands- upon the accsued appellants during the course of identification, but for the fact that they were shown by the police to the witnessess prior to identification . It was rightly argued by Sri P.N. Misra that the accused appellants must have been produced before the concerned Magistrate after 15 days of their arrest for second remand. Since the prosecution did not adduce any evidence that after first remand the accused appellants were kept Baparda, the contention of the accused appellants that they were shown by the police to the witnessess should have been believed by the trial Court and the judgment of the Court below on this score alone is bad in law. Their Lordships of the Supreme Court in the aforesaid ruling were pleased to observe that there was no explanation or evidence on record to show that while when taking the accused to and produce them before the Court for the purpose of remand the identity of the accused appellants was not revealed. The conviction based upon the evidence of the identification evidence could not be sustained. It was a clear case of the accused appellants before the trial Judge that they were shown by the police to the witnesses before identification. That apart,' the accused appellants had adduced cogent evidence of Shi v Ram, D. W. I. Amar Chand, DW 2 and Tej Pal, DW 3 that the accused appellants were arrested from their houses without making them Baparda.
10. The circumstances that the learned trial Court himself disbelieved the direct evidence of Om Prakash, PW 1, Virendra, PW 6 and Hukum Chand, PW 9 with regard to the complicity of the named accused Kanchan and acquitted him, I am of the opinion that the learned trial Judge grossly erred in convicting and sentencing the accused appellants on the basis of the identification evidence of these witnessess for the obvious reason that as compared to the direct evidence, the evidence of identification is a weak type of evidence.
11. In these circumstances, since there is no other corroborative evidence and the conviction of the accused appellant solely rests on the value of identification evidence, I find it difficult to place implicit reliance upon the evidence of Om Prakash, PW 1, Virendra, PW 2 and Hukum Chand, PW 9 and consider it safe to give benefit of doubt to accused appellants and to acquit them.
12. I accordingly held that the conviction of the accused appellants was bad in law. The appeals are hereby allowed and the order of conviction and sentence passed by the learned trial Judge against the accused appellants is hereby set aside. It is directed that the accused appellants if in jail shall be set at liberty forthwith, if on bail their bail bonds shall stand cancelled.