JUDGMENT
Prasun Kumar Deb, J.
1. All the four appeals have been heard analogously and are going to be disposed of at a time as all the four appeals have arisen out of the same and common judgment of conviction passed by Shri Jiwan Tigga 7th Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 512 of 1988 convicting all the eight accused appellants under Section 395 of the Indian Penal Code and the accused appellant Baldeo Singh [Criminal Appeal No. 19/90 (R)] and accused appellants Rajdeo Singh, Prabhu Singh, Birbal Singh, Sunil Singh alias Dhirendra Singh [Criminal Appeal No. 340 of 1989(R)] and accused appellant Bikrama Singh [Criminal Appeal No. 342 of 1989(R)] have further been convicted under Section 412 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life under Section 395 of the Indian Penal Code and above six accused appellants have been sentenced to undergo rigorous imprisonment for ten years under Section 412 of the Indian Penal Code. All the sentences have been ordered to run concurrently.
2. A road robbery was alleged to be committed on 15-2-1988 at 9-15 a. m. at village Ramkanda Nawadah Road in Harhi Jungle within Chainpur police station in the district Palamau.
3. The prosecution story as revealed from the first information report (Ext. 11) lodged by the informant Raghubir Sao (PW 7) on 15-2-1988 at about 11 a. m. at Chainpur Police Station was that on 15-2-1983 at 945 a. m. while he was going to his Bhandar at village Kuadaga on his Motor Cycle carrying his D. B. B. L. Gun, he found that the road was blocked with holders at Harhi Jungle and a man was found standing at the spot. While he tried to cross the road by the side of holders, the man who was standing there gave a, Lathi blow on the head as a result of which he fell down on the ground and then several dacoits came from the hide out of the Jungle, snatched away his gun and assaulted by fists and blows and a knife was burried on him causing injury just above his neck. The dacoits also had taken away his cash to the tune of Rs. 482 out of his pocket. According to him, there were nine dacoits having been armed with big guns and country-made pistol, knife etc., and were young m age. Some dacoits were wearing Lungi, Fullpant, Sweater, Chust Pajama and some of them were having covered their faces with Towels and Shawls and they were speaking in local language. It had further been alleged that the dacoits had also looted the passers-by about 20 to 25 in numbers and after robbing them all got them seated behind the bush by the side of the road and from the conversation of the dacoits it could be understood that they were waiting for bus to come so that they could have a big robbery. The informant further claimed that he could identify some of the dacoits. Chainpur Police Station registered a case on the basis of the Fardbeyan and started investigation.
4. From the materials on record it reveals that on 18-2-1988 from the informer the police could get some clues regarding the dacoits and their names even and, accordingly the police party raided the houses of those persons and recovered booties of dacoity, namely D. B. B. L. gun and several watches etc. Except the accused Rabindra Singh alias Thikedar Singh, Sideshwar Singh alias Shakti Singh and Prabhu Singh, all other accused persons were arrested on 19-2-1988 and have been produced before the Court on 21-2-1988. Accused Rabindra Singh alias Thikedar Singh, Sideshwar Singh alias Shakti Singh and Prabhu Singh surrendered themselves before the learned Chief Judicial Magistrate, Palamau at Daltonganj on 23-8-1988. The other accused Rameshwar Singh could not be apprehended.
5. Test identification parade was held in respect of the identification of the docoits on 9-3-1988 and on 25-3-1988 another Test Identification Parade was held in respect of the articles recovered from some of the accused persons. After investigation, charge-sheet was submitted against all the accused persons under Section 395/412 of the Indian Penal Code.
6. On commitment of the case to the Court of Sessions, the prosecution examined in total 16 PWs, including the Magistrate who held Test Identification Parade and also the Investigating Officer. The defence examined two witnesses, namely, Achuta Nand Tiwary (DW 1) who happens to be a Typist in the Civil Court at Palamau and accused Sunil Singh alias Dhirendra Singh, DW 2. The defence case is of denial of the prosecution story and their case is that they have been falsely implicated in the case.
7. The whole prosecution story and the conviction arrived at is based on the Test Identification Parade which was held on 9-3-1988 being conducted by PW 12, Munsif Magistrate. The Test Identification Chart has been exhibited as Ext. 8.
8. Charge was framed against all the eight accused persons under Section 395 of Indian Penal Code and individually against Sunil Singh alias Dhirendra Singh, Birbai Singh, Bikram Singh, Prabhu Singh, Baldeo Singh and Rajdeo Singh under Section 412 of the Indian Penal Code.
9. The main contention of the appellants is regarding the identification of the alleged dacoits. It has been submitted on behalf of the appellants that the whole test identification parade conducted in this case is devoid of all formalities as required under Section 9 of the Evidence Act and Rule 236 of the Bihar Police Manual, Vol. I. According to the appellants, the test identification parade is invalid on the face of it on the following ;
(i) That the accused persons had already been shown to the witnesses before the test identification parade ;
(ii) That inordinate delay in holding the test identification parade has not been explained by the prosecution and such delay is fatal to the last identification parade itself ;
(iii) That in conducting the test identification parade, the irregularities are rampant, as on the face of it, it is therefrom the records that some of the dacoits were covered their faces with towels and shawls but when these accused persons were intermingled with other persons during the test identification parade, no attempts were made to have the faces covered by Shawls and Towels.
10. The accused persons except accused Rabindra Singh alias Thikedar Singh, Sideshwar Singh alias Shakti Singh and Prabhu Singh were taken into custody on a tip off in the early morning of 19-2-1988 which is evident from the evidence of the Investigating Officer, PW 16 in paragraph 21 that after the search of the. houses, the accused persons were taken into custody and they were taken from villages to village in search of the other accused persons and as such this possibility cannot be brushed aside that the alleged dacoits could be seen by the witnesses who were robbed off because in a village when such raids are made, rustic villagers and others definitely go to the place to have a look over the whole incident. It is the specific case of the accused persons that they have been shown to the witnesses before the teat identification parade was held and they went to the extent that their photographs were taken at Sangam Studio as Daltonganj by the police before the test identification parade was held. There is only a simple denial to that effect from the side of the Investigating Officer but the defence has proved through DW 1 that a petition filed by the accused Rabindra Singh alias Thikedar Singh and Sideshwar Singh alias Shakti Singh on 7-3-1988 before the learned Chief Judicial Magistrate that they had been shown to the identifying witnesses on 2-3-1 83 on the date of their remand to police custody and that afterwards their photographs were taken by the Investigating Agency at Sangara Studio at Daltonganj. This petition was sent to the investigating agency before the test identification parade was held but it seems that the Magistrate concerned was not informed of the fact at the time of test identification parade or conducting the same, PW 6 has also stated that he had met the accused persons when he went to the police station along with two other PWs before the test identification parade was held. Thus the identification parade had lost definitely all its sanctity on this score.
11. Some of the accused persons had been arrested on 19-2-1988 and they were produced before the court on 21-2-1988 and the other three accused persons namely, Rabindra Singh and Sidheshwar Singh surrendered before the Chief Judicial Magistrate on 25-2-1988 while accused Prabhu Singh surrendered before the Chief Judicial Magistrate on 23-2-1988. The surrendered accused, namely, Rabindra Singh and Sideshwar Singh were taken into police custody from 2-3-1988 to 3-3-1988 while Prabhu Singh was taken to custody from 23-2-1988 to 24-2-1988. The reason as to why the test identification parade was held at such a belated stage on 9-3-1988 i. e. after about 15-16 days has not been explained from the side of the prosecution. The surrenders were made by the three accused in the open court and it is the specific allegation by accused persons before the test identification parade was held that they had been shown to the identifying witnesses on 2-3-1988 and that their photo- ‘ graphs wore taken by the investigating agency before, the test identification parade was held creates grave doubt regarding the sanctity of the identification parade.
12. On the third point, there is much force as it is evident from the first information report and also from the evidence of some of the eye-witnesses that three four dacoits were covering their faces either with towels or with shawls, So it was definitely necessary at the time of conducting the test identification parade that some of the dacoits and the persons intermingled must have been covered of their faces with towels and shawls before they were produced and, exposed to the identifying witnesses. It has been held by our High Court in the case of Bandhan Nayak v. State of Bihar 1985 PLJR 745, that strict provisions for holding a fair and impartial test identification parade to avoid innocent person being falsely implicated should be followed and unless there is flawless and no-faulty procedure adopted during the conduct of test identification parade, such test identification parade cannot be considered to provide trustworthy evidence to warrant conviction. On inordinate delay in holding the test identification parade, the Apes Court in the case of State of Andhra Pradesh v. M.V. Ramana Reddy 1991 Cr LJ 2703, hold that delay in holding the test identification parade without valid explanation cannot be the basis of conviction as the same infers a grave doubt regarding the sanctity of the test identification parade itself. Similar view has been taken by the Hon’ble Supreme Court in Samappa Vamanappa Madar Shankarappa Ravanappa Reddi v. The State of Mysore and Bali Ahir and Ors. v. State of Bihar 1983 SCC (Cri) 312.
13. The learned Additional Public Prosecutor in support of his contention that the test identification parade was properly done has referred to the case in Bharat Singh v. State of U.P. , wherein it was held by their Lordships that unless the Magistrate and the Police Officer who conducted the test identification parade have not been cross-examined on the ground of irregularity in the manner of holding test identification parade, the test identification parade can be safely taken into account for the purpose of conviction but the present case in hand is totally different from the facts and circumstances of the referred cases. Here, at the very beginning, when the test identification parade was not held even objection was raised by the accused persons to the effect that they had already been shown to the identifying witnesses and that both the Magistrate and the Investigating Officer had been thoroughly cross-examined regarding the irregularities contained in the test identification parade. Thus, on close scrutiny of the materials available on record, we find that no conviction can be based on the teat identification parade (Ext. 8) when the same is full of irregularities and has not been done as per Rule 2.36 of the Bihar Police Manual. Hence we find that the accused persons cannot be convicted on the basis of the sale test identification parade not being supported by any other evidence and as such- the conviction under Section 395 of the Indian Penal Code against all the accused persons is held to be illegal and hence set aside.
14. Regarding the conviction under Section 412 of the Indian Penal Code, there is no evidence of recovery against the accused Rabindra Singh alias Thikedar Singh and accused Sideshwar Singh alias Shakti Singh, From the possession of accused Sunil Singh alias Dhirendra Singh, it is alleged that a Maurya Watch No. 050486 was recovered. Accused Sunil Singh alias Dhirendra Singh has examined himself as DW 2 and has stated that the watch recovered from him was a gift from his Sasural at the time of marriage, and he claimed the same. It is said that one Michel Larks was robbed off his watch and he identified the same but that Michel Larks has not been examined in this case and the watch in this connection has also not been produced in the Court. The witness who was present at the time of seizure has also not been examined, so the prosecution has totally failed to prove the recovery of stolen watch from the possession of accused Sunil Singh alias Dhirendra Singh and it could also not be proved that the watch recovered from Sunil Singh was really robbed at the time of dacoity, hence, his conviction under Section 412 of the Indian Penal Code is also not sustainable.
15. From the possession of accused Prabhu Singh, H. M. T. Kohinoor Watch No. 2092/21 was seized and that has been produced and marked as material Ext. 1 but the seizure witnesses Mahabir Baitha and Anbach Baitha have not been examined in this case but there is no claim from the side of the accused as to the ownership of the watch. But PW 1 (Sukhram Munda) had produced the wrist watch before the Court along with the cash-memo and guarantee card and therefore, it was taken to his custody after the test identification parade with the order of the learned Chief Judicial Magistrate. It has been proved to the (sic)hilt that the watch in question was recovered from the accused Prabhu Singh in presence of seizure witness and was properly identified by the owner of the same. But we must say that the investigating agency committed error in the process of seizure as there was specific evidence available as it revealed from the case diary regarding Section 27 of the Evidence Act. However, ignoring deficiency we found that it could be proved that the stolen booty (Kohinoor Watch) was recovered from the accused appellant Prabhu Singh.
16. From the possession of accused Birbal Singh, one Alwyn Watch No. 097293 was seized during the raid from his house. This watch belonged to PW 6 who identified the same at the test identification parade of the articles and had taken in possession by the order of the learned Chief Judicial Magistrate. Amongst the two seizure witnesses, PW 8 had supported the prosecution case while PW 10 became hostile. However, the evidence of PW 8 inspires much confidence as there is no demand from the side of accused Birbal Singh regarding the ownership of the watch concerned, This had been accepted in the Court as material Ext. II. So the charge under Section 412, I.P.C. against accused Birbal Singh had also been proved.
17. Similar is the case of accused Rajdeo Singh. From his possession during the raid, H. M. T. Vijay No. 040106 was seized in presence of PWs 8 and 10. The watch belongs to PW 4 who identified the same at the test identification parade of the articles and took the same in his possession by the order of the learned Chief Judicial Magistrate, Palamau. This has been produced at the time of trial and marked as Ext. V.
18. During the raids, one D. B. B. L. Gun No. 8002783 belonging to PW 7 and H.M.T. Janta No. 140178 were seized from accused Bikrama Singh The said watch belongs to PW 11 who identified the same at the test identification parade of the articles and the gun was also identified by the informant, PW 7 and were marked as Ext. III and the watch was material Ext. III, in this case seizure has been proved by PW 8, a seizure witness. Thus, the charge against Bikrama Singh for retaining robbed articles could be proved beyond all reasonable doubts.
19. Against accused Baldeo Singh, the allegation was that during the raid, H.M.T. Janta No. 140173 was seized from his possession which has been proved during the course of trial as material Ext. VI. The seizure list have not been proved by the seizure witnesses. From the evidence of the Investigating Officer and the Anchal Adhikari (P W 13), it is clear that the watch in question was seized and on recovery from the possession of accused Baldao Singh on the early dawn of 19-2-1988, The said watch belonged to PW 5 (AH Ahmad) who identified the same and took possession of the same by the court’s order and produced the same at the time of trial. Hence, we find that the charge under Section 412 of the Indian Penal Code has also been proved against accused Baldeo Singh.
20. Thus, on the basis of the foregoing discussions, we find and hold that the charge under Section 395 of the Indian Penal Code could not be proved beyond all reasonable doubts against any of the eight accused persons appellants and as such they are acquitted from the charge under Section 395 of the Indian Penal Code and the sentence passed against them under that section is also set aside. As regards charge under Section 412 of the Indian Penal Code is concerned, the prosecution could be able to prove their case against the five accused persons, namely, Prabhu Singh, Birbal Singh, Rajdeo Singh, Bikram Singh and Baldeo Singh and their conviction are upheld. But in respect of sentence, we find that ten years rigorous imprisonment is too harsh for the accused persons who are young in age and within the age group of 17 to 30 years. Hence, we reduce the sentence to the period they Have already undergone as it is found from the records that since February, 1988, all the accused appellants are in custody i.e. they are in custody for more than six years.
21. In the result, Criminal Appeal No. 327 of 1989(R) is hereby allowed and the judgment of conviction and sentence are hereby set aside. In respect of Criminal Appeal No. 340 of 1989(R), the conviction and sentence against the accused appellants, namely, Sunil Singh alias Dhirendra Singh is hereby set aside and the appeal is allowed in his case and in respect of other accused appellants, namely Prabhu Singh, Birbal Singh and Rajdeo Singh, the appeal is partly allowed and their conviction and sentence under Section 395 of the Indian Penal Code is set aside but the conviction under Section 412, I.P.C. is hereby confirmed but as indicated above, the sentence imposed upon them under Section 412 of the Indian Penal Code is reduced to the period already undergone.
22. In respect of Criminal Appeal No. 342 of 1989(R), the appeal is partly allowed and the accused appellant Bikrama Singh is acquitted of the charge under Section 395 of the Indian Penal Code and the sentence imposed on him under that section is hereby set aside but the conviction under Section 412 of the Indian Penal Code is hereby confirmed and the sentence imposed under that section is reduced to the period already undergone.
23. In respect of Criminal Appeal No. 19 of 1990 (R), the appeal of the accused appellant Baldeo Singh is partly allowed and the conviction and sentence under Section 395 of the Indian Penal Code is hereby set aside and the conviction under Section 412 is hereby confirmed but the sentence imposed under that section is reduced to the period already undergone.
24. In view of the aforesaid modification of the judgment of conviction and sentence, the appeals are allowed and all the appellants are directed to be released forthwith, if not wanted in any other case.
Ravi Nandan Sahay, J.
25. I agree.