JUDGMENT
R.K. Saksena, J.
1. Heard Sri P.C. Sharma, Advocate, Learned Counsel for appellants and Sri Kamal Krishna, Counsel for the State.
2. Each of the above named three appellants stands convicted Under Section 396 of the Indian Penal Code with a sentence of rigorous imprisonment for a period of ten years, per judgment and order dated 22-2-79, passed by the then V Additional Sessions Judge, Etah, in Sessions Trial No. 70 of 1978.
3. Briefly put, the prosecution story is that prem Das P.W. 2 son of Bhopal used to run his sweet stall at the bank of Gangas in village Lehara. Near about sun-set, when the Mela was almost over and he was winding up his business, 10-11 persons came to his shop and asked him to surrender whatever he possessed and give sweets, when Prem Das did not accede to the demand and refused to part with his belongings, one of the criminals moved towards him for making an assault. Thereupon, Bhopal, father of Prem Das took up a lathi to attack that miscreant and then one of the miscreants fired a shot, thereby killing Bhopal and all ran away.
4. The report of the incident was made at the police station Soron. The crime was registered Under Sections 147 & 302/149 I.P.C. Nobody was named in the report as culprit. The police arrested these appellants on 17th February, 1977. They were put up for identification in District Jail on 17th April, 1977 and after getting the result of the identification parade, the Investigating Officer submitted a charge-sheet against them, as a consequence whereof they were committed to the Court of Session. The Learned Sessions Judge in the first instance, framed charges Under Sections 147 & 302/149 IPC against these appellants, and later on, after having entertained a feeling that the provisions of 396 of the Indian Penal Code were attracted, a charge Under Sections 396 of the Indian Penal Code was also framed.
5. All the accused denied the accusations and pleaded not guilty, attributing their false implication in the crime at the instance of police.
6. Accepting to identification evidence of Prem Das, Tika Ram and Balli, P.W. 1 to P.W. 3 respectively, the Learned Trial Judge found that the appellants were participants in the commission of the crime of dacoity and, therefore, he has convicted and sentenced them as stated at the outset. Feeling dissatisfied with the decision, all the accused have come up in appeal.
7. The case rests solely on the evidence of identification, which was held 49 days after the occurrence and also the arrest of the appellants. On the basis of the decision of the Supreme Court, reported in 1982(3), Supreme Cases, page 368 (1) Soni v. State of U.P. It was contended on behalf of the appellants that the evidence of identification loses its value and importance in view of the delay that has occurred in holding the test parade. Their Lordships have, in the said case, observed that delay in holding identification parade after such a long time throws grave doubts on the genuineness or reliability of the evidence, for reason that the witnesses could not remember the features of the culprits after this long gap.
8. This was, in my opinion, an observation on the facts of that case and it is, I feel, idle to contend that it lays down a principle universally applicable to all cases based on evidence of identification. If there are some special and outstanding features, which enable a person to carefully mark the visages of a culprit, he can, in my opinion, identify him, even after a long gap. The value to be attached to identification evidence would depend on the facts of each case.
9. However, in the instant case, I find no special features which can be said to have enabled the witnesses to remember the visages of the culprits, even after a long gap of more than 40 days. The evidence on record shows that the whole incident ended within no time. The demand by the culprits was followed by a denial and then shot was fired. There is no evidence that there was exchange of hot words and altercation which consumed some time. Therefore, the witnesses had no ample opportunity to make a mental note of the features of the culprits and to retain them for such a long time. Further, the evidence shows that most of the culprits had muffled their faces obviously to screen their identity. I am not prepared to accept that some of them had not taken any such precaution before committing the crime. Furthermore, the evidence of Tika Ram (PW 2) shows that the shot fired by one of the culprits attracted his attention. It follows that he did not see as to what had happened before the firing of the shot and the evidence is that immediately thereafter the culprits bolted away. It would, therefore, not be unreasonable to conclude that the witnesses had no ample and sufficient opportunity to make a mental note of the features of the culprits and therefore I do not find description of features of the bandits before the Investigating Officer. On an analysis of the evidence, I would put this case in the category of hit and run type crime,’ where the features of an unknown assailant could not, by any stretch of imagination, be noted or kept in mind. The Learned Trial Judge has not scrutinised the evidence from a correct angle of vision and, therefore, he has erred in accepting the indentification evidence. The performance of the witnesses at the identification parade was obviously the result of some external aid and no implicit reliance can be placed on such a weak evidence. The prosecution has, in my opinion, failed to establish the charge/charges framed against the appellants.
10. In the result, the appeal succeeds. The conviction and sentence awarded to each appellant are set aside and each is found not guilty and acquitted on the charges stated above.
11. They are on bail. They need not surrender. Their sureties are discharged.