JUDGMENT
1. All these appeals were taken up together as they arose out of a single judgment dated 12-3-1980 recorded by the IInd Additional Sessions Judge, Mathura, in S.T. No. 409 of 1976 tried along with Sessions Trial Nos. 63 of 1979, 211 of 1979, 409A of 1976 and 409-B of 1976. Twelve persons stood charged in the trial which arose out of case Crimes No. 293 of 1976 and 400 of 1976, relating to police station Virendavan, district Mathura, for different offences under Sections 396 and 412, I.P.C. Eight accused persons stood acquitted while four were found guilty. Pitambar was convicted for an offence under Section 412, I.P.C. and was sentenced to R.I. for three years. Gyasi was also convicted under Section 412, I.P.C. read with Section 25 of the Arms Act and was sentenced to R.I. for four years under Section 412 and for one year under Section 25 of the Arms Act. The sentences were to run concurrently. Hokar and Ram Saroop were convicted under Section 396, I.P.C. and each of them was sentenced to R.I. for seven years. Each individual accused filed a separate appeal, as indicated above, challenging their convictions and sentences. The State has also come up in appeal against the sentence imposed on Hokar and Ram Saroop. In the present bunch of appeals, therefore, all the questions concerning propriety of conviction and extent of sentence were open for decision.
2. In the instant case the incident in question took place at the night between 31st July and 1st August, 1976, at about 3.00. The report to Virendavan police station was made at 6.30 A.M. on 1-8-76. The place of occurrence was in village Nagla Dokri said to be 9 miles south from the police station. The F. I.R. was lodged on a very cryptic information by one Jawahar Singh and it simply stated that on the previous night at 3.00 there had been a dacoity in the house of Kacheru Singh Jat and in that dacoity Naval Singh son of Kacheru Singh was done to death. It was further indicated that a double barrel gun of the brother of Kacheru Singh was also looted away by the dacoits. Upon this F.I.R. police recorded case Crime No. 293 at Virendavan police station under Section 396, I.P.C. and went to the spot. Subsequently, a list was submitted to the Investigating Officer by Mangi Lal, brother of Kacheru Singh, indicating the materials that were taken away by the dacoits. The list indicated, amongst other, a double barrel gun bearing No. 18494 along with 32 pieces of cartridges. The list also included silver lachcha (ankle ornament), Out of the long list these two items have been indicated here as the present convicts Pitambar and Gyasi have been found guilty for allegedly having been in possession of these materials. It was the case of the prosecution that certain pieces of silver lachchas were recovered from Pitambar and the same were identified subsequently as property stolen in the dacoity. It was stated further that the concerned gun was sbsequently recovered from Gyasi and it bore the same number as indicated in the list. For Gyasi there was no valid license for holding a fire arm and as such, in addition to the charge under Section 412, I.P.C. he was further charged for an offence under Section 25 of the Arms Act.
3. For Ram Saroop and Hokar it was the prosecution case that after their arrest they were put in test identification parade wherein seven witnesses had identified Ram Saroop as a dacoit participating in the dacoity and five persons had identified Hokar attributing a similar role to him. For Ram Saroop the date of arrest was 13-9-76 and the date of alleged identification in test identification parade was 31-10-76 while the dacoity was committed at the night between 31st July and 1st August, 1976. For Hokar the date of arrest was 15-10-76 and the test identification pa rade was held on the same date with Ram Saroop i.e. on 31-10-1976.
4. On the question of recovery, it was the defence of Pitambar and Gyasi that no recovery as alleged was ever made from any one of them and the allegedly recovered articles were not properly identified by the alleged owners thereof. Concerning recovery of the gun it was stated that the gun must have been recovered, if at all stolen, earlier and it was planted on Gyasi only to book him in the present case. On the question of identification it was argued that although the witnesses spoke of a source of light, the positions of the electric lights were not such as to enable identification possible. It was further stated that the witnesses were admittedly scared and were busy in hiding themselves and as such there was no scope for them to see the miscreants. It was also argued that the test identifica tion parades were held about three months after the alleged incident and the impression of the details of the miscreants in the minds of the witnesses must be presumed to have faded away with the passage of time. It was argued that at no earlier point of time the witnesses had given any description of any one of the miscreants. It was also contended that the lest identification parade, wherein the witnesses allegedly identified Hokar and Ram Saroop, was held by a Magistrate but the Magistrate was never examined at the trial and only his report was tendered and its genuineness was not challenged. It was contended that in the absence of examination of the Magistrate the claim of identification could not be read even as a corroborative piece of evidence.
5. The factum of dacoity was not challenged at the trial nor in these appeals. It is, therefore, not necessary to go through a detailed description of the incident barring such description as may be necessary to meet the cases of the four persons involved in these appeals. For this purpose we shall take up the case of each concerned accused separately together with the evidence led and the judgment of the trial Court on that point. Pitambar, as indicated above, was charged and convicted for an offence under Section 412, I.P.C. for having received and retained stolen property with the knowledge that the possession thereof was obtained by the commission of dacoity. The first witness on this point is P.W. 1, Mangi Lal, brother of Kacheru Singh, who spoke of looting of gold and silver ornaments and clothes and a gun. He claims to have come to the Court for identifying the recovered articles and he stated that he had identified 8 pieces of silver lachcha, a dhoti (in fact a sari, a ladies wear) and a ladies kameej. He claims that these materials were seen by him in his house prior to the dacoity and were seen again before the Magistrate only and never in between. His cross-examination indicates that he had come to identify the materials on several occasions but identification proceedings could not be taken up. He admitted that in the list he had indicated the weight of the ornaments but he could not remember what were such weights. According to him, the stolen sari was printed in red and he picked up the concerned cloth in the test identification parade as there was no other sari with like print there. Concerning the Kameej only one other Kameej was there coming close to the description of the stolen Kameej. Concerning the identity of ornaments in the test identification parades the suspected ones were mixed up with new ones also and amongst the old ones there was some difference between his ornaments and the others. There was no special mark of identification on them. These ornaments belonged to a girl named Kela who was alive and was present in the village and the witnesses claim that this girl was his niece in-law and he had seen the ankle ornament worn by her. The sari and the Kameej belonged to another niece-in-law named Bhuri and she too was alive and was in the village but none of these two girls was examined.
6. P.W. 2 is a son of Kacheru Singh. He too had come to the Court for identification of the stolen materials and he claims to have identified the lachchas and a Kameej. He admitted that in the test identification parades he identified only two materials properly and four of them were identified wrongly. There was no special mark of identification on the lachchas and the Kameej. This lachcha was used by kela but the witnesses never saw them closely. P.W. 3, Mohan Singh, also claims to have identified the stolen and recovered materials (lachcha, sari and Kameej). The sari, according to him, was purchased only two weeks prior to the dacoity and he had never seen anybody using it nor did he see the Kammej being worn by anybody. The lacchas, however, were being used occasionally by Kela but bore no special mark of identification. P.Ws. 4, 5 and 6 are not on the point of identification of the materials. P.W. 7 does not say anything on this point and such is the version of P.W. 8 on the point of identification of the clothes and ornaments. P.W. 9 is the Investigating Officer, Sri Suresh Chandra Katara. On 6-9-76 he had arrested Pitamber along with the materials allegedly stolen in the dacoity. In fact the arrest was made not by P.W. 9 but by the Head Constable Darbari Singh and others. This Investigating Officer recorded the statement of Darbari Singh and other person as also of Pitambar. He arranged for a test identification parade for the recovered materials, P.W. 14 Constable Chandra Pal Singh stated that on 6-9-76 at about 10.00 A.Mr an informer gave a hint that Pitambar would come to sell stolen materials looted in the concerned dacoity. This information was entered in a G.D. and the Head Constable Darbari Singh deputed Chandrapal and Than Singh for intercepting Pitambar as there was no time to collect witness. Only police personnel gave mutual search to each other and lay in wail near a garden. They saw a person with a bag and stopped him and when he tried to run away he was arrested after use of necessary force. Arrest was made at about 10.15 A.M. This man was Pitambar and from him eight pieces of silver lacchas were recovered. The materials were sealed at the spot itself and a list was prepared. There no claim by him that a copy of the seizure list was made over to Pitambar and his signature or mark was obtained on the seizure list. Although he spoke of a G.D. entry concerning the information received from the informer, the G.D. was not proved. P.W. 22 is Darbari Singh who was the Head Constable (Head Moharril) at police station Vrindavan. He, however, proved the G.D. that was made on the basis of information from the informer. He too spoke of recovery from Pitambar. he admitted that no independant witnesses could be collected although it is a busy road. He did not call anybody to attend the search or seizure. After arrest he took the materials and the accused to the police station and lodged another G.D. which too was brought on record through this witness, but no assertion has been made that a copy of the seizure list was made over to the accused Pitambar. P.W. 25 is the Magistrate who held the test identification parade for the stolen materi-als. The Magistrate admitted that he did not mark the suspected materials by any special mark or sign. The memo of identification appears to have been made on two dates, 25-11-76 and 27-5-77. The entries dated 25-11-76 were not written by this witness. He could not say as to who had filled in column one and two wherein description or the suspected materials were given.
7. Concerning the recovery, it appears that police sprang to action only on an information from an informer after recording a G.D. The place of the alleged occurrence, so far Pitmabar is concerned, was an open road in Vrindavan and there is no reason why no independant witness was called to be present at the contemplated search and seizure. There is no reason again why the witnesses have kept silent about giving a copy of the seizure memo to the person from whom seizure was allegedly made.
8. Section 165, Cr.P.C. empowers the Police Officer to make a search in the course of an investigation. This power has been given,fo the officer incharge of the Police station or a police officer making an investigation. When such a search is made the procedure under Section 100 Cr.P.C, as far as may be possible, should be followed. It is the duty of the officer conducting search to call upon two or more independent and respectable inhabitants of the locality to be witnesses to the search. Section 100(7) Cr.P.C. requires that when a person is searched a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. In the instant case, according to the statement of the witnesses, who had arrested Pitambar, they had an information that materials looted in this dacoity were to be taken by Pitambar for sale. Thus it was a search, during investigation. Even for a search on warrant of arrest it is incumbent upon the Police officer to give to the accused a receipt of the properties taken in possession by the police officer at the time of search. The Head Constable was not the Officer-in-charge of the Police station and even if it is considered lawful for him to conduct search under Section 102, Cr.P.C, it may not be interpreted that the rigor of Sections 51, 100 or 165, Cr.P.C. would not be applied and a copy of the list of the materials or receipt thereof would not be made over to the person so searched.
9.The conduction of the test identification parade is also not above suspicion as part of the parade was arranged in November, 1976, and it was completed a few months thereafter by another Magistrate. The persons who had been us ing the stolen materials had not come they were the females of the house hold. Their ornaments were identified by the male relations who admittedly never looked to the ornaments closely and regarding use of the clothes. There was difference in their statements, one witness has stated that the clothes were used by one lady while the other witness has stated that they were newly purchased and he did not see anybody using them.
10.The evidence against Pitmabar, both on the point of recovery as well as on the point of the identification in test identification parade, is thus not above doubt and Pitambar must, therefore, get the benefit of such doubt.
11.So far the charge against Gyasi is concerned, his involvement has been put forth on the ground of alleged recovery of a gun from him that was stolen from the affected house. In this case both the charges under Sections 412, I.P.C. and 25 of the Arms Act rest basically on the proof of recovery. If recovery is proved then and then only it would be probed if the accused Gyasi had the requisite knowledge that it was a property obtained by dacoity or if he had been holding the gun without any license. The gun has been identified by its number and thus there was no necessity of any further identification of the same. The evidence of theft of the gun had come in the F.I.R. by a simple statement that the gun of Mangi Lal was taken away by the dacoits. The witnesses on the point of the theft and recovery were (P.W. 1) Mangi Lal (P.W. 6) Soran Singh (P.W. 8) Fauran Singh (P.W. 9) Suresh Chandra Katara and (P.W. 24) Babu Ram Yadav. P.W. 1 had stated about theft of the gun. It was a licensed gun and his nephew Naval Singh was holding it to guard the house. The dacoits decamped with ornaments, clothes etc. and the gun. He gave the number of the gun as No. 18494 and he produced the gun in Court and claimed that after recovery the gun was made over to him for intermediate custody. The first infromation report did not disclose the number of the gun, but the number was given through a separate list submitted during investigation. It was marked Exhibit Ka. 1. In item No. 1 the number of the gun was indicated. The report, although in writing was made during investigation and could at best be a statement under Section 161, Cr.P.C. only and it could have been used solely for the purpose as indicated in 162, Cr.P.C. and it was not proper for the trial Court, therefore, to mark it as an exhibit and thereby accepting the same as a documentary evidence. Witness Mangi Lal, spoke of making over the paper to the Investigating Officer during investigation. Witness S.C. Katara also admitted that this list was given to him during investigation. There is no challenge regarding the ownership of the gun but there is every challenge if it was really stolen or if it was really recovered in the manner stated by the prosecution.
12 The alleged recovery of the gun was made on 21-10-76. The police acted on a tip off from the informer and went to Jait outpost. Force was collected from S.I. Babu Ram Yadav of the Outpost. Witnesses Soran Singh, Fauran Singh and Chibram were also asked to accompany the police party and they lay in wait near a culvert.The witnesses and the police officials gave their search to each other. It is stated that after some time Gyasis was seen coming. When he was asked to stop he started running away. He was apprehended after use of necessary force at about 6.00 A.M. and an immediate search was made in presence of the witnesses near the culvert and a gun No. 1894, made in the Ordinance Factory, was recovered from him. Rust had collected on it. It was a 12 bore double barrel gun. The accused had with him (en cartridges in a leather case. An Inland letter bearing a date 18-9-76 and addressed to accused Gyasi was also recovered from him. A seizure list was prepared by Sri S.C. Katra the Investigating Officer. The witnesses also signed on it. There is no claim by Sri S.C. Katra that a copy of the seizure list was made over to Gyasi or that his signature was obtained on the seizure list. The Inland letter that was recovered from him was produced in Court but its contents were not legally proved. The information from the informer was entered into a G.D. no doubt, but there is nothing in the statement of Sri S.C. Katra regarding any entry in the records of Jait Outpost concerning his arrival and collection of force and witnesses with the help of S.I. Sri Babu Ram Yadav.
13. This Babu Ram Yadav was examined as P.W. 24. According to him, he was an S.I. at Jait Outpost. On 21 -10-76 at about 4.00 A.M. Sri Suresh Chandra Katara along with other police personnel came to the Outpost. Sri Katara expressed his intention for a raid and sought the help of Sri Babu Ram Yadav and other officials. They also collected Chibram and Soran Singh as witnesses. He also spoke of the arrest and recovry. His cross-examination indicates that at the Jait Outpost a general diary is maintained. Arrival of Sri Katara at 4.00 a.m. on that date was not recorded in the G.D. of the Outpost. He could not say if his departure with Sri Katara was noted in the G.D. After the recovery he had accompanied Sri Katara to police station Vrindavan and he came back to his outpost only after mid-day. The witnesses on the point of recovery were three, only two of them were examined by the prosecution in Court. They were P.W. 6 Soran Singh and P.W. 8 Fauran Singh. Chibram was not examined in Court.
14. So far P.W. 8 is concerned, he has stated on oath what he was with the police party in an operation wherein a culprit was arrested near the culvert on minor canal (irrigation) at Jait. The culprit was identified as Gyasi. On the question of recovery, however, this witness stated that immediately after the arrest Gyasi was taken to a Jeep and was driven to the police station. This witness saw the gun at Jait Outpost. In presence of this witness nothing was recovered. The State Counsel was allowed to cross-examine this witness and he denied to have stated to the police that any recovery was made in his presence. The cross-examination by defence indicated that he had appeared as a witness on behalf of the police in three cases and it was argued that he was a henchman of the police. P.W. 8 Fauran Singh was also produced by the prosecution to prove the recovery of the gun. He admitted to have accompanied the police in the operation in which Gyasi was arrested. He has stated that he did not see, if he was carrying anything. When this man came up on the culvert, police men arrested him, took him on the jeep and he loo saw the gun only at the Outpost and then the papers were written and signatures were obtained. This witness was also declared hostile and was allowed to be cross-examined by the prosecution. He clearly stated that he had no knowledge where from the gun had come. He had denied to have made any statement regarding the recovery of the gun from Gyasi. He too accepted in cross-examination by defence that he had been a witness on behalf of the police on an earlier occasion also.
15. Discussions have been made earlier to show that the arrival of Sri S.C. Katar at Jai Outpost, the departure of Babu Ram Yadav with him and the information given by Sri S.C. Katara were not noted in the G.D. of the Outpost. Babu Ram Yadav stated that after recovery they drove to Vrindavan police station with the accused and the gun. The independant witnesses, however, stated that the gun was first seen by them at the Jait Outpost where the papers were written. No corresponding G.D. of that Outpost has been proved. Law requires presence of independant witnesses when any search is to be made. Law does not say that a police officer would he disbelieved on the point of recovery simply for his being interested in the prosecution. But the denial by the independant witnesses of the alleged recovery vis-a-vis the claim of the police officials that the gun was recovered puts the Court on guard to cross-check the claim of the police officials from the attending circumstances. The contemporaneous entries in the G.D. at Jait Outpost would have lent support to the claim of the police officer and absence of such entry certainly puts a big question mark on the veracity of the claim of the recovery as made by the police of-ficer.
16. There is yet another point to be seen. The information from the informer was received at about 3.15 A.M. and a G.D. was entered. The police officials had an information that the stolen gun would be dug out and would then be taken towords Vrindavan for sale. It is not appreciated why some of them did not get the spot where it was allegedly kept and why all the police officials lay in wait till 6.00 A.M. Another crosscheck to verify the credibility of the claim of re covery was proper adherance to the procedure of recovery by giving a copy of the seizure memo to the person from whom seizure was made. There is no claim either by Sri S.C. Katara or Sri Babu Ram Yadav that the copy of the seizure memo for the gun was ever made over to Gyasi. A reasonable doubt, therefore, remains in the mind of the Court, if at all the theory of recovery of the gun from Gyasi, as alleged by the prosecution, could be accepted. The benefit of this doubt must go to Gyasi.
17. We shall not proceed to the question of claim of identification so far Hokar and Ram Saroop are concerned. On this point the evidence relevant for consideration would be the F.I.R. and the statements of the inmates of the house concerning how the incident took place, what was the source of light, whether identification was possible, what was their statement during investigation claiming identification or descrbing the features of the miscreants and what were their versions in the test identification parades in Court. We are also to see the effect of non-examination of the official who had held the test identification parade.
18. The F.I.R. which was a very short one simply spoke of the dacoity without indicating the number of the dacoities the source of light or any description of the miscreants. We are, therefore, to fall back upon the statements of the wit nesses in Court to be tested by their previous statements under Section 161, Cr.P.C. made to the Investigating Officer as also to their state ments made before the officer holding the test identification parade. The witnesses on the point of occurrence and identifications are (P.W. 1) Mangi Lal (P.W. 2) Gopal Singh (P.W. 3) Mohan Singh (P.W. 4) Ramji Lal and (P.W. 5) Naththi. The statement of the Investigating Officer would be relevant for the purpose of proving the previous statements of the witnesses to which their attentions were drawn during cross-examination. The other materials relevant for the present point is the lest identification parade chart.
19. P.W. 1, Mangi Lal spoke of the dacoity that took place in his house at about 3.00 in the night on the relevant date. According to him, the house was having electric connection and Naval who was sitting in guard in the night had kept the lights on. Nine or ten dacoits had entered the house from the back side. They first took possession of the gun after breaking open the lock of the room. Thereafter they started looting. One of the miscreants had a gun and two three of them had “Katta” and the rest were having lathies and ballams. the dacoits were coining and going out of the house and had also opened fire on Naval and Kacheru. Seeing the dacoits Naval utttered that he could identify the dacoits and he would see on the morrow. Upon this Naval Singh was attacked. Kacheru also chased them. He was also assaulted. The miscreant holding the gun had fired on Naval Singh and killed him. The incident took place for 10 to 15 minutes and the witness claimed that he had seen their faces in electric light and had seen their feature. He claims to have identified the dacoits in the jail in a test identifiction parade and he identified Jagdish, Hokar, Govinda Ram Saroop and Kunwar Pal in Court. His cross-examination indicates that he had not indicated to the Investigating Officer the physical description of the miscreants. He comes up with an explanation that the Investigation Officer had not asked him about such description. His cross-examination further indicated that he knew Govinda and Kunwar Pal as persons from village Rall but he insted that he did not know them from before. His cross-examination further indicates that the night in question was dark and on the date of deposition he was not having proper vision. This difficulty was being felt from the summer of that year. He was examined in the month of June. His further cross-ex- amination indicates that he saw the culprits from a short disctance. Some of them had covered their faces while the others were barefaced. It was suggested to him that Ram Saroop and Hoker were known to him from before the incident. It is true that he has claimed identification and he had also spoken about source of light, but he did not give the discription of the physical features of the miscreants at the earliest opportunity and his identification in Court may be doubted upon his admission that his vision on the date of examination was not proper. In Court he did not say what part was played by each individual accused he had identified. P.W. 2 Gopal Singh also spoke of the dacoity in their house. Nine to ten miscreants had entered the house, one was holding a gun, two were having “Katta” and the rest were armed with lathis and ballams. He also spoke of electric light in the house and that the miscreants were entering into and going out of the house and were engaged in looting. He claims that he could identify the dacoits during the incident. He claims to have attended a test identification parade to identify the miscreants. In Court he had identified Hoke , Sobran Singh, Ram Saroop, Kunwar Pal, Govinda and Ranno. He claims that he had seen these persons committing the dacoity. He has stated that he did not know them from before. According to him, the night was dark and a bulb was burning on the back side of the house. He was on the roof while the bulb was there down stairs. He left the affected house in search of guns in the village and had come back again during dacoity. He had jumped out side from the roof but came back through the main door. This main door remains closed duirng night but he found it open. When he entered he did not find any miscxeant on the main door. He claims to have seen them from a distance of seven steps, one or two of them covered their faces while the others were not covering their faces. His story that he jumped from the roof and then went outside in search of gun in the village may be true but the story that he had again come back and entered the house through the main door and did not see any dacoits, appears to be not credible as normally he was not supposed to come back without getting help of any fire arm when nine to ten dacoits had come to their house. He does not say whether he saw the accused persons while he was on the roof or when he came back and entered through the main door. He also does not say as to what part was played by which of the accused whom he had identified in Court. Before the police he had stated that when miscreants had opened fire the inmates of the house had concealed themselves. He has admitted that no dacotis had come to the roof where he was there and from that roof itself he had jumped down outside the house. His attention was drawn to his earlier statement regarding the injuries caused to Naval Singh (deceased). He had stated that he did not know when he sufred the gun shot. He too accepted that he was looking to the dacoits from behind a cover of chest height. He did not give the description of the physical features of any dacoit before anybody. It was suggested to him that after arresting the accused persons police had shown them to him and accordingly, he had made the identification.
20. P.W. 3 Mohan Singh is also another inmate of the councerned house and he too spoke of opening fire by the dacoits and of their identification in electric light. He claims to have identified Jagdish, Kunwar Pal, Ranno, Govinda, Subran Singh, Ram Saroop and Babu in Court as also in test identification parade. His cross- examination indicates that he had made a statement before the Investigating Officer that due to fear he did not see the dacoits and he would not be able to identify them even if seen again. It was stated that the Investigation Officer after coming to the spot fell asleep by his side and he must have made a wrong record. It was also suggested to him that the accused persons were shown to him prior to the test identification parade.
21. P.W, 4 Ramji Lal is a grand son of Kacheru and a son of the deceased Naval Singh. He spoke of the killing of his father during dacoity and he claims that he had seen the faces of dacoits in electric light. He further claims that he had gone to identify the dacoits in jail and he identified Hari Singh, Ram Saroop, Kunwar Pal, Govinda, Yad Ram, Babu Hoker and Ranno as persons who were in the dacoity and whom he had identified in test identification parade. He was confronted with his previous statement before the police, and he accepted that when the inmates shouted at the dacoits they opened fire and all the inmates got panicky and had concealed behind shelters. His statement indicates that during the dacoity he had seen three and four dacoits, the dacoits had opened fire for about 25 times. He had accepted that he had not stated before the Magistrate holding test identification parade that he had seen any miscreants on the roof. His further cross-examination indicates that immediately on their arrival, the dacoits started beating the nmates. He accepted that all were under a fear that the dacoits might kill them, if they found them and as such they had hidden behind a 9 feet high wall. He had also shown the place of hiding to the Investigation Officer. He did not indicate to the Magistrate as to under what circumstance he had seen the dacoits. He did not give the features of the miscreants to the Investigating Officer. When he was asked to identify the dacoits he had placed hands on eight persons although his claim was that he had seen three and four dacoits only.
22. P.W. 5 Naththi is yet another inmate of the affected house. He too claimed identification of the dacoits and had identified eight persons in Court and had claimed that he had also identified them in test identification parade. His cross-examintion indicates that he was unable to say that what dress was there on the dacoits whom he had identified in the test identification parade and What weapon each was holding. He did not say to the Magistrate regarding their dresses and weapons on the date of the identification. Nor he did say as to what each of the identified miscreants was doing.
23. The Investigating Officer had examined him on the date of the incident itself but he did not give the physical features of the dacoits, but he claims to have given the description of their dresses and weapons to the Investi gating Officer. This description was, however, not given in Court. According to his evidence, he was hiding behind a wall whenever the miscreants were firing and again he was coming out to see them. The Investigating Officer accepted that witness Mohan had stated to him that due to fear he could not identify any accused. When asked as to why this Mohan was sent for identifying the dacoits in the test identification parade the investigating Officer stated that as he was an inmate and had got up during the incident and as such as too was sent in the test identification parade. The cross-examination of the Investigat ing Officer indicates further that he had asked about the description of physical feature of the miscreants from the witnesses but he could not get any barring a claim that they would be able to identify them if seen again. The Investigating Officer accepted that a site plan was prepared by him but he did not indicate wherefrom the witnesses had claimed to have seen the dacoits.
24. The test identification parade was held by a Magistrate who was not produced in Court and his reports in different pages were marked exhibit. It is worth note that all the witnesses including Mohan who had not claimed identifica tion of any person due to fear and the witness Ramji Lal who claimed to have seen only three or four dacoits, had uniformly identified the accused-persons in the test identification parade. In the absence of examination of the Magistrate holding the test identification parade the report was admitted. But the mere proof of the report may not be a substitute for an oral evidence, as defence could have elicited many points from him in cross-examination. The test identification parade was held long three months after the incident and long six weeks after the arrest of Ram Saroop and after two weeks from the arrest of Hokar. From absence of description of any features of the miscreants, absence of statement re garding what part was played by them during the dacoity, over-zealouness on the part of the witnesses Mohan and Ramji Lal to identify seven accused persons despite their previous statements to the contrary, and crowning all, delay in holding the test identification parade and non-exami nation of the Magistrate holding test identification parade cast a very grave doubt on the au thenticity of the identification proceedings and credibility of the prosecution story on the points of identification.
25. In our view, therefore, the appellants Ram Saroop and Hokar are entitled to the benefit of this doubt that exists concerning their identification.
26. To conclude, we find that the prosecution could not prove its case either of identification or of recovery and as such the appellants, Ramsaroop, Hokar, Pitamber and Gyasi must be given the benefit thereof and upon this finding the four appeals filed by these four persons are to be allowed and the appeal by the State must be dismissed.
27. It is, therefore, ordered that Government Appeal No. 1099 of 1980 stands dismissed while Criminal Appeal Nos. 542 of 1980, 543 of 1980, 544 of 1980 and 606 of 1980 are allowed. The conviction and sentence of the appellants Ram Saroop, Gyasi, Hokar and Pitamber are set aside and they are acquitted of the charges levelled against them. They are also discharged from their bail bonds.