JUDGMENT
R.P. Awasthy, J.
1. This judgment shall also govern the disposal of Criminal Appeal No. 1259 of 1986 (Mukund v. State of M. P.) and Criminal Appeal No. 1231 of 1986 (Kallu alias Hari Narayan v. State of M.P.).
2. Appeal filed by accused/appellant Kadhora registered as Criminal Appeal No. 1258 of 1986, appeal filed by accused/appellant Mukund registered as Criminal Appeal No. 1259 of 1986 and appeal filed by accused/appellant Kallu alias Harinarayan registered as Criminal Appeal 1231 of 1986 arise out of the judgment dated 8-10-1986 delivered by the Special Judge, Damoh, holding the accused/appellants guilty for committing offences punishable Under Sections 396 and 365 of the Indian Penal Code and sentencing them each to undergo imprisonment for life and rigorous imprisonment for five years respectively on both of the said counts. All of the said appellants have challenged the said findings and sentences in the said appeals. Since they arise out of a single judgment, they are being disposed of simultaneously by this single judgment.
3. Prosecution case is that in the night intervening 20th and 21st October, 1983, at about 9.00 P.M., Shriram (P.W.10) accompanied by his four companions, was going from village Jhamar to village Dhooma. When he crossed the rivulet in the way, he noted 14 persons who were armed with guns and were wearing dresses of olive green (Khakhi) colour. All of the said fourteen persons surrounded Shriram (P.W.10) and after telling him that they were members of police, they asked Shriram to take them to the house of the Patel of village Dhooma. On being forced to take them to the Patel of village Dhooma, Shriram (P.W. 10) brought them to the house of Mathura Prasad in village Dhooma. The said dacoits asked Shriram to call Mathura Prasad. When even after being called twice or thrice the door of the house of Mathura Prasad was not opened, the said dacoits made Shriram to climb on the roof of the house and to jump inside the said house.
4. When Shriram entered the house of Mathura Prasad, he told him (Mathura Prasad) that fourteen dacoits, armed with guns, were present in front of his house. On receiving this information, Mathura Prasad (P.W.15) sent members of his family to the house of his brother Janki Prasad (P.W.19). Mathura Prasad kept his son Bajjnath in hiding in the room in which husk was stored. Mathura Prasad and Shriram entered in yet another room of the said house and remained there.
5. At that time, four dacoits entered the house of Mathura Prasad by climbing on the roof of the said house and jumping inside it. They looted the ornaments in the said house and thereafter they entered the house of Janki Prasad (P.W.19). The said dacoits tried to get the doors of the house of Janki Prasad (P.W.19) opened but when the doors of the house of Janki Prasad were not opened, they entered in the said house from the side of the house of Mathura Prasad (P.W.15). There in the house of Janki Prasad (P.W.19), the said dacoits looted the ornaments and gave beating to Janki Prasad and other inmates of the said house. They took Janki Prasad (P.W.19) to the house of Girja Prasad but when they found that no one was present in the said house, they went to the house of Purushottam (P.W.20). There they gave beating to the ladies residing in the said house and snatched ornaments which they were wearing.
6. The said dacoits brought Janki Prasad (P.W.19) and his wife Awadhrani again to the house of Janki Prasad, where they broke open the boxes and took away the ornaments. Thereafter, they went to the house of Ganga and gave beating to the ladies residing in the said house. The four dacoits entered the house of Ramcharan and where also they beat the inmates of the said house and looted ornaments. From there all of the dacoits went to the house of Parasram where one of the dacoits caused gun-shot injury to Parasram. In the house of Parasram they looted ornaments etc.
7. Komal went to village Deogaon where he informed Ratansingh Sarpanch regarding dacoity being committed in the houses of village Dhooma. Ratansingh came along with the members of his family from the house situated on his field to the house situated in village Deogaon. At about 4.00 A.M. Ratansingh accompanied by Komal and other residents of his village Deogaon went towards his house which was situated in the field. While going towards his field, Ratansingh and others found Parasram lying injured near a tree on the way. After some time, Parasram died at that very place. Ramcharan, who is brother of Parasram, had gone in search of his brother Parasram and he also found him lying near the said tree. Thereafter, Ramcharan lodged the first information report Ex. P-17 at the Police Station Hatta.
8. After recording the report lodged by Ramcharan, Sub-Inspector of Police C. S. Rajput (P. W. 27) posted at Hatta came to village Dhooma, where he conducted usual death inquest as per memo Ex. P. 14. The dead body of Parasram was sent for post mortem examination being conducted and the persons, who were injured in the said incident of dacoity, were also sent for medical examination. On conducting the post mortem examination of the dead body of Parsaram, Dr. J. C. Patni (P.W.6) found a gun shot entry wound on front portion of left upper arm and exit wound on the anterior side of his upper arm. The pellets had entered the chest also causing injury to axillary artery. In the opinion of Dr. J. C. Patni (P.W.6), Parasram had died due to excessive bleeding from the said wound. Other victims of the incident of dacoity were also- medically examined by other doctors, who found multiple injuries on their persons.
9. On 6-12-1983 accused Puran, on 8-2-1984 accused Mukund and on 9-3-1984 accused Kallu were arrested. One 12 bore country-made pistol, 50 grams of gun powder and 12 caps of cartridges were seized from accused Kallu as per seizure memo Ex. P-26. On 30-3-1984, test identification proceeding was conducted by Vishnu Prasad Singh, Executive Magistrate, Hatta, in respect of accused Mukund and Kallu, in which identification proceeding, Baijnath son of Mathura (P.W.30), Mathura Prasad (P.W.15), Janki Prasad (P. W. 19), Ramcharan (P.W.16), Purushottam (P.W.20) identified accused Mukund alone.
10. On 21-6-1984, accused Rajau alias Devi Khinna alias Ballu, Dharampal and Kadhora were arrested and were put to test identification on 6-7-1984. In the said test identification Komal identified accused Dharampal and Baijnath identified accused Kadhora. After completion of investigation, a report Under Section 173 of the Code of Criminal Procedure (challan) was filed in the competent Court. After the said report being filed, the other accused also surrendered in the Court. In all, ten accused were tried in the said sessions Trial.
11. On the charges for the alleged commission of offences punishable Under Sections 396 and 365, Indian Penal Code being framed and explained, the accused denied the said allegations and pleaded not guilty. After recording evidence in the case, the trial Court acquitted seven accused. Only present accused appellants were held guilty and sentenced as detailed above.
12. It has been argued for accused Kallu that Mathura Prasad (P.W.15) and Purushottam (P.W.20) identified this accused. Out of the said three witnesses, Baijnath (P. W.30) categorically deposed in para 11 of his statement that he was not sure as to whether accused Kallu had accompanied those dacoits, who had committed dacoity in his house and had abducted him. Looking to the remaining testimony given by other witnesses, it has to be seen that the diary statements of Baijnath and Purushottam were not supplied to the counsel for the accused. It is inconceivable that the diary statements of such material eye witnesses of the incident would not have been recorded by the investigating officer. Therefore, an adverse inference has to be drawn against the credibility of these witnesses.
13. Identification proceeding was not conducted in a fair manner. This accused was arrested on 9-3-1984. The incidents had taken place in the night intervening 20th and 21st October, 1983. Thus, this accused was arrested after a lapse of about four months and a half. Thereafter, test identification proceeding Ex. P-l was conducted on 30-3-1984, that is, after about 21 days of the arrest of this accused.
14. Normally identification proceeding is convened in jail premises. But, in the present case, the said proceeding was convened in the Court Room of Executive Magistrate Shri V. P. Singh. This accused was admittedly having pock marks (please see para 13 of the statement of Purushottam). There is nothing on record to indicate that persons having pock marks on their faces were made to stand in the said identification proceeding along with accused Kallu. Therefore, it is not in the least safe to accept the testimony given by the said three witnesses Mathura Prasad (P.W.15), Purushottam (P.W.20) and Baijnath (P.W.30). Therefore, it has been argued, the appeal deserves to be allowed and accused deserves to be acquitted.
15. Adopting the same arguments, regarding doubtful nature or shaky credibility of identification proceeding due to delay in arrest of accused appellant after the incident and due to delay in identification proceeding after arrest and further not convening the said identification proceeding regarding accused Mukund in jail premises, it has further been argued for the two remaining accused/appellants Kadhora and Mukund Singh that the testimony given by the said witnesses suffers from inherent infirmity and does not inspire belief. Therefore, the appeals filed by these appellants deserve to be allowed and they also deserve to be acquitted.
16. In reply, the learned Govt. Advocate fully supported the finding given and sentence awarded by the trial Court.
17. From the testimony given by the victims of the incident viz. P.Ws. 10, 13, 15, 16, 17, 18, 19, 20 and 30, it is conclusively established that offence of dacoity coupled with murder of Parasram was committed in village Dhooma in the house of the witnesses referred above, in which dacoity ornaments of the inmates of the house of the persons referred above were looted and after committing dacoity and murder of Parasram, the said dacoits abducted Baijnath. Therefore, the main point for determination was and is as to whether the prosecution succeeded in establishing that these accused/appellants were amongst the dacoits who committed offences referred above.
18. We totally agree that on account of delay in arrest after the incident, of the present accused appellants and on account of delay in convening identification proceedings after their arrest, the credibility of identification proceedings has been shaken to a great extent and it is not in the least safe to accept the testimony given by the said 3 witnesses regarding complicity of the 3 accused/appellants in the said incident.
19. Out of all these accused appellants, accused Mukund was arrested on 8-2-1984 and accused Kallu on 9-3-1984. The incident had taken place in the night intervening 20th and 21st October, 1983. Thus, accused Mukund could be arrested after a lapse of about 3 months and a half and accused Kallu could be arrested after four months and a half. Accused Kadhora could be arrested on 21-6-1984, that is, after about 8 months of the incident. Test identification was convened on 30-3-1984 as per memorandum Ex. P-1. There is no explanation available regarding delay in convening test identification proceedings. Out of the said three witnesses, diary statements of Purushottam and Baijnath were not recorded by the investigating officer. As the diary statements of the said two witnesses were not recorded, defence of the accused was greatly prejudiced and, therefore, acceptability of the testimony given by the said two witnesses is also shaken to a great extent.
20. There appears to be no reason as to why test identification proceeding was not convened in jail premises where the said proceedings can be conveniently conducted in a more fair manner. Purushottam (P.W.15), whose diary statement was recorded, did not give any description about the identity of the dacoits in his diary statement.
21. Mahesh (P.W.I) has categorically stated that on 30-3-1984, he had taken Mukund and Kallu from police station Hatta to the office of Executive Magistrate, Hatta. There appears to be no cogent reason as to why the said two accused Mukund and Kallu were brought to police station Hatta after having been remanded to judicial custody.
22. As far as Kadhora is concerned, he was arrested after a lapse of about eight months after the incident and identification proceeding pertaining to him was conducted on 6-7-1984 as per identification memo Ex. P-22. In the said identification proceeding, only Baijnath identified accused Kadhora. As has already been observed, diary statement of this witness was not recorded. Though he had identified Kallu in identification proceeding conducted as per memo Ex. P-1 on 30-3-1984, he has categorically stated that he was not sure as to whether the said accused/appellant was or was not there amongst the dacoits who committed dacoity in his house and abducted him. In view of the reasons of delay in arrest of this accused Kadhora and delay in conduction of identification proceeding as well as non-recording of diary statement of Baijnath, it is unsafe to set upon the testimony given by Baijnath regarding him. It is correct that according to Baijnath, he was kept in the captivity of the dacoits for about a month and a half. However, he has deposed in para 4 of his statement that out of 13 dacoits, he could identify only three or four, as the dacoits, who had abducted him, used to take precaution of keeping him away from them.
23. In view of the said reasons, the appeals filed by the accused/appellants is allowed and being given benefit of doubt, all of the accused appellants are acquitted of the charges framed-against them.
24. Order passed by the trial Court regarding disposal of articles produced in the Court is, however, confirmed and maintained. It is pertinent to mention here that not a single article looted in the said dacoity could be recovered in the present case.