JUDGMENT R.P. Yadav, J.
1. This Criminal Appeal is directed against the judgment and order dated 19th October, 1981 passed by the VI Additional Sessions Judge, Aligarh in Sessions Trial No. 174 of 1980 convicting the appellants Ram Swarup, Yad Ram, Nawab Singh alias Nabba and Chheda Lal under Section 396 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life.
2. During the pendency of this appeal, two appellants namely Ram Swarup and Chheda Lal died and their appeal has abated.
3. It is the prosecution case that the complainant Shri Balbir Singh P.W.2 has a double storied house in village Chtarsi which is situated within the circle of P.S. Gangiri at a distance of about 5 kms. The occurrence in question is said to have taken place in the moonlit night of 7/8 August, 1979 at about 1.30 a.m. when complainant Balbir Singh - P.W.-2, his brothers Inder Singh and Dharam Singh, who were killed in this incident, were sleeping on the roof of the house, whereas, the other members of his family including his mother Smt. Chameli - wife Verma Devi, Smt. Abhilash w/o Shr Dharam Singh and Prakashi were sleeping on the ground floor of the house. It is alleged that at about 1.30 A.M. about 8 or 9 miscreants armed with gun, katta, Ballam and lathies entered his house by scaling down the wall and opened the main door. They started ransacking the house.
4. Some of the miscreants went upstairs. One of them shot at Shri Inder Singh who sustained injuries and instantaneously died. The complainant Balbir Singh and his brother Dharam Singh caught hold of one of the miscreants who in an attempt to get rid of their hold fired at Shri Dharam Singh, who sustained injuries. The complainant as well as the other members of the family raised alarm, whereupon, his brother Jant Singh P.W.3 Bhagwan Singh, Ranvir and others arrived there. Complainant and his brother were having torches. The miscreants were also having torches which they had been flashing during the course of the dacoity. His brother Shri Jant Singh set fire to the heap of 'patel' kept near the house of Kitab Singh, which emanated sufficient light. The faces of the miscreants were seen in the light of the lanterns, torches, burning 'patel' and the moon light and two of them namely, appellants Ram Swaroop and Yad Ram were recognized while committing dacoity, whereas others whose faces were seen by the witnesses were not known to them. The miscreants are said to have looted a D.B.B.L. gun 70, catridges, Rs. 2000/- cash and ornaments. It is also alleged by the prosecution that daring the course of commission of dacoity, the miscreants while ransacking the house of the complainant were not only flashing their torches, they were also conversing between themselves in the local dialect and enquiring about his brother Jant Singh (P.W.3) Shri Dharam Singh who had sustained injuries in the incident died few hours alter. Shri Vidya Ram, Chameli Devi, Balbir Singh and Bagawan Singh sustained injuries in this incident, which were caused by miscreants during the course of dacoity.
5. Complainant lodged an oral report at P.S. Gangiri in the morning at about 6.15 a.m. on 8th August, 1979 which was reduced to writing by Head Constable Shri Mahendra Pal Sharma. He made entries in the G.D. Exht. Ka-3 registering a case under Section 396 IPC Investigation was taken-up by Shri Sher Singh, SO.- P.W.-6. who was then present at the police station. He, after observing formalities, left for the spot along with necessary police force and on reaching there held inquest on the dead bodies of Indar Singh and Dharam Singh with the help of S.I. Shri R.P. Singh and prepared inquest reports Exht. Ka-4 and 5. Thereafter, both the dead bodies were sent to Police Lines Mortuary for post mortem through Constable Digambar Singh and Ram Prasad. He also inspected the spot, prepared Site Plan- Exht. Ka-12. He took in his custody the blood stained and plain pieces of the floor and prepared their memo Exht. Ka-13. Five empty cartridges and wads were recovered on the spot which were kept in sealed cover after preparing memo Exht. Ka-14. Sample of the burnt ashes was also taken into police custody after preparing memo Exht. Ka-15. He also took in to his custody the bed sheet and pillows on which the deceased Indar Singh had been keeping in the night and prepared their memo. He inspected the torches of complainant Balbir Singh and Dharahi Singh and the two lanterns which were said to have been burning at the time of the incident and after preparing the memo Exht. Ka-17; handed them over in the Supurdagi of Sri Jant Singh -P.W.3. He interrogated the witnesses, made search for appellant Ram Swarup and Yad Ram. But they could not be traced out. On 10th August, 1979 when he returned to police station, he found appellant Ram Swamp in the police lockup. The appellant Yad Ram could not be apprehended and he surrendered before the Court on 6th September, 1979.
6. Shri Vidya Ram, Balbeer, Bhagawan Singh and Smt Chameli were medically examined at District Hospital, Aligarh on 8th August, 1979 between 4 p.m. to 4.35 p.m. and a number of injuries were found on their person. Some of them were caused by blunt object and some of them were as a result of the fire anus. Post mortem on the dead body of Indar Singh and Dharam Singh was conducted by Dr. R.A. Singh on 8th August, 1979 at 3 p.m. and 5 p.m. respectively. In the opinion of the doctor, the death of the aforesaid both the deceased had taken place on account of anti mortem injuries which were caused by fire arms. These reports are Ext. Ka-20 to Ka-24.
7. According to the prosecution case, appellants Nawab Singh alias Nabba and Cheda Lal along with four others were apprehended by a police team headed by Shri Surendra Kumar, S.O.-P.W.7. in the night of 18/19th October, 1979, when they are said to have been making preparation for committing dacoity near Bhata Purana within the circle of village Ghilawali. During the course of their interrogation, complicity of the said two appellants in this crime came to be known. So their faces were covered and in the same condition they were brought to the police station lock-up. Relevant entries were made in the G.D. Ext. Ka-18 of PS. Gangiri at 4.45 a.m. on 19th October, 1979. The said two appellants were informed that they were to be put-up for identification tests.
8. Test identification parade of the said two appellants namely Nawab Singh alias Nabba and Chedda Lal was held on 27.11.1979 in the District Jail, Aligarh under the supervision of Shri Shamshul Islam-P.W. 1 who was the then Pargana Magistrate, Atarauli. On receipt of the identification result, charge sheet Exht. Ka-19 was submitted against all this appellants by Shri Surendra Kumar, S.O.-P.W-7.
9. The appellant abjured the guilt and pleaded not guilty to the charge. Appellants Nawab and Chedda Lal asserted that they were falsely implicated by one Nathi Singh of his village on account of enmity and that they were arrested from their houses/shop and shown to the witnesses and photographed at the police station.
10. The case of the other two appellants was that Shri Baboo Ram, Vidya Ram, Balwant Singh and Jai Ram were real brothers. Shri Vidya Ram is the father of the complainant Balbir Singh, whereas, Balbant Singh is the father of Ram Swaroop, appellant. Their uncle Shri Baboo Ram had died. His wife Smt. Maya Devi got the name of her daughter Smt. Reshma Devi mutated over the land left by him. Shri Vidya Ram objected to the mutation but appellant Ram Swamp supported the case of Maya Devi and has been helping her as well as her daughter Smt. Rashma Devi in cultivation of the land. Shri Yad Ram is 'Sarhu' of Ram Swarup and he is alleged to have been assisting Smt. Rashma Devi in cultivation of her land. According to them they have been falsely implicated on account of said enmity.
11. To substantiate the charge, the prosecution examined Shamshul Islam. Pargana Magistrate- P.W. -1, complainant Balbir Singh -P.W.2 Jant Singh- P.W.-3, Smt. Hansa Devi- P.W.-4, Hakim Singh, P.W. 5, S.I. Sher Singh P.W.-6 and Inspector Sureudra Kumar Inspector- P.W.-7, Shri Jai Dayal and Sri Hari Mohan, Constables were examined as C.W.1 and C.W.2. Appellants Chheda Lal had examined Gopal Kant,-D.W.1.
12. On an appraisal of the entire evidence, learned Sessions Judge, held all the aforesaid appellants guilty of the offence with which they stood charged He accordingly, convicted and sentenced them to the imprisonment for life. It is against this judgment and order that the present appeal has been filed.
13. As already mentioned earlier, appeal of the two of the appellants namely - Ram Swarup and Cheeda Lal has already abated on account of their death and so the matter is now confined to Yad Ram and Nawab Singh only. Evidences against these two appellants can be divided into two categories- one who isnamed in F.I.R. and other whose case is based on identification evidence. Appellant Yad Ram is named in the F.I.R. whereas, the case against Nawab Singh is based on identification evidence.
14. It is undisputed than an armed dacoity was committed by 8 or 9 miscreants at the house of complainant Balbir-P.W.2 in the night of 7/8.8.79 in which two of his brothers died and other family members sustained injuries. It is also undisputed that valuable ornaments, cash, a gun and cartridges were looted from his house by the dacoits. It is only participation of the appellants that was challenged.
15. It is submitted by the learned counsel that there is solitary testimony of complainant Balbir Singh -(P.W.2) against appellant Yad Ram and there being no overt act having been specified on his part or the recovery of any incriminating article and the only witness against him not being truthful and honest, his conviction can not be sustained. He also submitted that the learned Sessions Judge did not appreciate the evidence against him in the proper perspective.
16. Out of the seven witnesses examined by the prosecution, only three witnesses namely Balbir Singh -P.W.2, Jant Singh -P.W.3 and Suit. Hansa Devi -P.W.4 have given an eye account of the incident. P.W.-3 Jant Singh and Smt. Hansha Devi-P.W.4 did not cite the name of Shri Yad Ram - appellant as one of the miscreants. It was only complainant Balbir Singh-P.W.2 who stated that amongst the miscreants, he had recognized appellant Yad Ram and Ram Swarup. During the course of cross examination, he admitted that appellant Yad Ram is 'Sarhu' of the deceased appellant Ram Swarup. He further stated that Baboo Ram was his uncle. He was not awars of the name of his wife but his daughter was Smt. Reshuma Devi. He feigned ignorance about any litigation regarding the mutation of name of Smt. Reshama Devi over the property left by his uncle Baboo Ram. He denied the defence version that they had wielded pressure over the appellant Ram Swarup to depose in his favour in the matter of litigation with Smt. Rashama Devi. But instead of giving evidence in their favour, he appeared as a witness for Smt. Rashuma Devi. He denied his knowledge that the property of Smt. Reshama Devi is being supervised by appellant Yad Ram and Ram Swarup. To the contrary to the aforesaid evidence of complainant Balbir Singh-P.W.2, his brother Jant Singh-P.W.3 stated in the cross examination that his father Vidya Ram and uncle Jair Ram had filed objection in the mutation case of Smt. Rashama Devi. However, he also denied that Ram Swarup had appeared as a witness for Smt. Rashama Devi in that case. Appellants Ram Swarup and Yad Ram filed copy of a written statement filed in Revenue Case No. 77/75-76 Rashami Devi v. Ram Swarup and Jai Ram and Vidya Ram, which shows that the appellant Ram Swarup had supported the case of Smt. Rashama Devi. The occurence in question had taken place in the year 1979, just within 2-3 years of that litigation. Complainant Balbir Singh was then aged about 25 years, It could not be said that he was hot aware of the litigation between Smt. Reshama Devi and his father and uncle It appears that he has tried to suppress this fact. Appellant Ram Swarup was his first cousin and appellant Yad Ram, being his relative, both were well known to the witnesses. There is no recital in the F.I.R. that they had taken any precaution to conceal their identity. In the cross examination, complainant Balbir -P.W.2 stated that both the aforesaid appellants - namely Ram Swarup and Yad Ram had not covered their faces. However, he had not made any conversation with them. Although it can not be held as a rule that no person of the same village or a known person will commit dacoity in his own village without taking precaution to conceal his identify, yet the criminals also, unless they are in the category of dare - devil or reckless have to be attributed with the common sense, although, the situation in the present day times have changed, when the young lads do trot hesitate in committing crimes on the highways in the day light without caring for the public or the police. But when this occurrence had taken place, the situation was undoubtedly different However, P.W.-1 Balbir Singh, having tried to suppress the factum of litigation and consequential enmity with Ram Swarup and Yad Ram - appellant, he can not be said to be an honest and truthful witness. There being no recovery of any looted article or any specific act having been assigned to appellant Yad Ram, in our opinion, Ipse dixit of PW.2 Balbir could not be held sufficient to warrant his conviction. It can not be said in the circumstances of the case that the complainant had no animus or axe of his own to grind against the said appellant Yad Ram. His participation was, therefore, not established by clinching, cogent and trust worthy evidence.
17. Now we proceed to examine the case of Sri Nawab who was allegedly arrested in the night of 18/19.10.1979 at about midnight by Surendra Kumar Singh S.O. - P.W.7 when healongwith 6-7 others had assembled near the Brickclin in village Ghilawali with a view to commit dacoity at the house of one Jagdish Singh of the said village. He along with others was taken to the police station where entries were made in G.D. Ext. C-l at 4.45 A.M. They were lodged in the police lock-up. At about 9.25 a.m. same day, all the arrested accused including appellant Nawab were sent to Aligarh through Constable Hakim Singh-P.W.5 and two others for being produced before the Magistrate. Evidence of P.W.-5 constable Hakim Singh shows that they could reach the Head Quarter, Aligarh at 5.30 P.M. and by that time Courts were closed for the day. So, aforesaid appellant and the other arrested accused were taken to Civil Lines Police Station at 6 P.M. and detained in the lock-up there upto 7.30 A.M. in the morning, when they were again handed-over to the said Constable Om Prakash and Hakim Singh -P.W.5 for being produced before the Magistrate. Constable Hari Mohan -C.W.2 has deposed that the aforesaid appellant Nawab Singh and other arrested accused while on the lock-up of the Civil Lines Police Station were kept 'Bapardah'.
18. In the identification test which was held on 27.11.1979 appellant Nawab Singh was identified by complainant Balbir Singh-P.W.-2, Jant Singh - P.W. 3, Smt. Hansa Devi -P.W.4 and one Smt. Prakashi Singh.
19. Learned Sessions Judge has found the evidence of the aforesaid witnesses trustworthy and reliable and on that basis he concluded that the appellant Nawab was guilty of the offence under Section 396 I.P.C.
20. Learned counsel for the appellant has submitted that there was inordinate delay in holding the test identification parade so as to create a doubt on the genuineness on the test identification parade. He further submitted that the appellant was tried for the offence punishable under Section 399/402 of the I.P.C. for having assembled there with an object of making preparation for committing dacoity and that he was acquitted in that case and the entire prosecution case was held to be false and concocted. He further submits that the appellant Nawab Singh was arrested from his house and theory of his arrest from Brickclin of village Ghilawali was a cooked-up story and, in fact, the appellant after being arrested from his house was taken to the police station where his photographs were taken and he was shown to the witnesses and he was detained for a long time at the police station and this was the reason for sending him late to Aligarh.
21. Whenever in a case test identification parade is required, it is desirable that the investigating agency should try to hold the same at the earliest opportunity. An early opportunity to identify the suspect-tends to minimize the chances of the memory of the identifying witnesses fading away due to long lapse of time but merely because there is some delay in holding the test identification it cannot be said to be tainted if there is satisfactory reason given by the prosecution for the delay. The Hon'ble Apex Court in the case of 'Promod Mandal v. State of Bihar 2005 Supreme Court Cases (Cri) 75 has ruled that "there is no fixed rule as regards the period within which the test identification parade must be held or number of identifying witnesses. It is for the Court to decide on the facts and circumstances of the case and evidence on record whether to accept or reject the evidence of identification. When defence fail to impute any motive to the prosecution for delay in holding the test identification parade nor the defence alleged any irregularity in holding the parade held on facts, delay of one month in holding the parade was not fatal to the prosecution case."
22. In Simon and others v. State of Karnataka (2004(2) J.I.C.855 S.C.) 8 years delay in holding identification test was held not to be fatal.
23. In the present case, there is delay of about 38 days. But that itself in our opinion, is no ground for rejecting the evidence of the witnesses if they are held to be otherwise reliable and trustworthy. Invincible and insurmountable difficulty in the way of the prosecution is that the theory of arrest of the appellant on the night of 18th/19th October, 1979 in village Ghilawali near Brickclin has been disbelieved by the learned Sessions Judge, who tried him for the offences punishable under Section 399/402 I.P.C. He was acquitted of the charge (vide order dated 12.2.82) (copy on record). Said acquittal order has become final because it was not challenged before any higher court. So, it is not possible for us now in this case to endorse the view of the learned Sessions Judge that the appellant was arrested in the manner alleged by the prosecution. Further more, the circumstances indicate that the appellant was shown to the witnesses before being sent to the jail. There were seven witnesses produced for test identification - four of them correctly identified the appellant. Two witnesses did not identify any one. One witness identified wrong persons. Four witnesses who identified the two suspects including the appellant did not commit any mistake at all: Evidence is therefore too good to be believed. However, without laying much emphasis on this aspect of the case, it may be significantly noted that the appellant was present there at the police station in the morning of 19th October, 1979. He was not produced before the Magistrate and remanded to jail custody on that day. He was sent to the District Head Quarters for being produced before the learned Magistrate with delay deliberately and so he was not produced there and was lodged in the e lock-up of Civil Lines Police Station in the night. The Constables who had taken the appellant to the Head Quarter did not give anything in writing after coming back to Police Station on 21.10.79. However, during the course of cross examination they stated that the bus in which they had been traveling developed some defect on way and that could reach at the Head Quarter at 5.30 p.m. when the Courts had already been closed. They had not reported this fact to the S.O. on coming back to the Police Station. So, this explanation seems to be an after thought and unreliable. It appears that the suspects were, in fact, not sent to the Head Quarter in time only because some delay occurred in showing them to the witnesses. The appellant had already raised this plea at the earliest opportunity before the Magistrate who conducted the test identification parade.
24. It is not worthy that the distance of police station Gangiri from the Head Quarter is only 45 km. and private buses ply on this route Distance of 45 kms. could be covered, at the most, within two hours. Even if it is accepted that the bus had developed some defect, another bus could be arranged. Explanation offered by P.W.-5 is not satisfactory. In the circumstances, when the theory of arrest at the Brickclin has already been disbelieved in the earlier case and the possibility of the appellant having been shown to the witnesses at the police station not being ruled out, it would not be safe to convict the appellant Nawab Singh on the basis of the identification evidence of the said witnesses. No looted article was recovered from his possession. It was, therefore, not proper to convict him on the evidence, which was not convincing, cogent and inspiring confidence.
25. The participation of appellants namely Shri Yad Ram and Nawab Singh @Nabba in the incident in question is not proved to the hilt. They are, therefore, entitled to acquittal.
26. The appeal is allowed. Conviction and sentences imposed on appellants Yad Ram and Nawab @ Nabba are set aside and they are acquitted of the charge under Section 396 I.P.C. They are on bail. Their bail bonds are cancelled. They need not surrender thereto.
27. Material Exhibits shall be disposed of as per direction of the learned Sessions Judge.