ORDER
B.K. Sharma J.
1. The two appeals have been preferred against the judgment and order dated 4-8-1981 passed by Sri D.C. Srivastava, the then Additional Sessions Judge, Gyanpur, Varanasi in S.T. No. 94 of 1977, State v. Vijay Narain whereby he convicted all the five accused-appellants of the Offence under Section 395, I.P.C. and sentenced each of them to undergo rigorous imprisonment for a period of five years. One Ram Lal co-accused was acquitted by the learned Additional Sessions Judge and the State has not challenged his acquittal by way of filing an appeal.
2. Out of the above five accused appellants, Mohan accused-appellant (Criminal Appeal No. 1737 of 1981) was in custody at the time of his trial and after conviction he had already served out his sentence and the statement of his counsel Sri D.S. Tewari is that after being released from jail, he met his natural death. So now we have to deal with the cases as against Tulsi and Shitla Prasad accused appellant of Criminal Appeal No. 1737 of 1981 and Vijay Narain and Ravindra Nath accusued-appellants of Criminal Appeal No. 1760 of 1981.
3. It is a case of dacoity. The factum of dacoity is not controverted before this Court. The dacoity took place in the night of 24th/25th Dec. 1976 at 1.30 O’clock in the houses of Surendra Nath, Raj Narain, Ramraj Dubey Girja Shankar, Radhey Shyam and Prabhu Narain in Village Arjunpur, Police Station Suriyawan, distict Varanasi (now district Bhadohi). According to the prosecution case, Ravindra Nath (PW 2) set fire to a heap of dry sugar cane leaves which emitted light at the time of occurrence, that the witnesses were also flashing their torches and the dacoits were also flashing their torches and in the light of the said fire and the light of torches, the witnesses had idenfified the accused-appellants. No stolen property was recovered during the investigation.
4. The identification evidence in this case has been given by Surendra Nath Dubey, informant (PW 1) and Ravindra Nath Dubey (PW 1) an outsider, who is said to have set fire to dry sugar cane leaves as well as Balkeshwar Nath (PW 4) who is said to be present at the house of informant Surendra Nath Dubey at the time of occurrence and injured in the dacoity. The accused-appellants were arrested and put up for test identification in this case. The test identification parade was conducted by Sri Satya Prakash Baj payee Land Acquisition Officer Gyanpur (PW 9). The accused persons denied the charge of dacoity and have claimed their false implication. Some defence evidence was also led at the trial.
5. Now the identification evidence given by the eye witnesses at the trial has been assailed by the learned counsel for the accused-appellants Tulsi and Shitla Prasad on the ground that at the time of their admission to jail on 2-3-1977, each one of them had only one leg existing and that despite it, at the time of holding of test identification proceedings the learned Executive Magistrate did not take any proper precautions in regard to the said distinctive mark and that consequently the identification proceedings were a farce. There is the evidence of Banwari Yadav, Gate Keeper, Sadar Jail, Gyanpur (PW 3). In his examination-in-Chief, he stated that he has brought the gate book of the Gyanpur jail and on the basis of entry made in it on 2-3-1977, he testified to the going of accused Tulsi, Shitla Prasad and Babul alias Bulli to the Sadar Hospital and their return therefrom. He also testified that one leg of each of the accused was amputated. The prosecution has not challenged the testimony of this witness Banwari Yadav (DW 3) based on the jail records. The identification memo prepared by the learned Magistrate which is on record, does not contain any entry about one leg of any of these accused appellants being in an amputated condition, what to say of recording the taking of special precautions to conceal these distinctive features of these accused appellants. Only, the usual entry had been made by the Executive Magistrate in the identification memo that the entire parade was done Baparda up to the waist and that Chippis were put up on the distinctive marks. If to avoid identification on this basis any special precaution was actually taken about these marks the learned Magistrate was required to record the same in the identification proceedings. At the time of recording of his evidence in Court, so that the learned Magistrate could refresh his memory with reference to the entries in the record of the identification proceedings. When no such mention was made in the identification proceedings then it was not possible for the learned Executive Magistrate to say anything from his memory or imagination. He was not expected to remember the facts of any particular identification parade when he came to the Court for giving evidence. Sri Satya Prakash Baj payee, Land Acquisition Officer was examined as PW 9 at the trial. In his examination in chief he stated that the distinctive marks present on the body of these accused persons put up for identification parade were recorded by him and the precautions taken by him were also recorded. He has formally proved the identification memo. At that stage, the prosecution did not question him, on the point of taking precautions in regard to the distinctive features of both these accused-appellants. In his cross-examination, he stated that he did not remember that at that time the legs of Shitla Prasad and other accused persons were in amputated condition. Again after some cross-examination, he stated that the legs of some under trials were in amputated condition but he did not remember whether they were these particular accused persons or some other ones. In this state of evidence, there is no option than to reject the identification evidence given by the prosecution witnesses as against these two accused-appellants for want of material to show that the learned Magistrate has taken proper precautions in respect of these two accused appellants to prevent their being identified on account of this distinctive marks which was not apparent on their bodies. The learned Additional Sessions Judge has played on his imagination in descending the defence plea on this subject, observing that the carelessness and ignorance of the learned Magistrate can be no ground for acquittal. The learned Additional Sessions Judge was not justified in convicting these two accused appellants on the ground that the possibility that some under trials with one leg were mixed in the parade cannot be ruled out and, that if, such was the state of parade, it is natural that the accused and under trials would have been kept sitting and not that they would have been permitted to stand on one leg nor was he justified in relying on the recital in the memo that the blankets were spared on the body of the under trials and the accused covering their waists and observing that from it, it follows that naturally, in sitting position, their legs would have also been covered. His further observation that the identification Magistrate should have been asked whether these accused and under trials were kept standing or were made to sit and that if this was not enquired from the identification Magistrate, who was already negligent and careless, he could not be expected to give such clarification and that his omission is no ground to say that the identification parade was illegal or irregular and the omission on the part of the identification Magistrate might have created such irregularity and further observation the irregularity cannot be called fatal irregularity also cannot be sustained. It was for the prosecution to show that proper precautions were taken and if the prosecution failed to do so, the benefit has to go to the concerned, accused.
6. Then in respect of Tulsi accused-appellant, it has been argued by the learned counsel that there were small pox marks on his face which could have give opportunity to the witnesses to recognise him in the identification parade because no proper precautions were taken by the learned Magistrate in respect of the same. The identification memo recorded the presence of small pox marks on the face of accused-appellant Tulsi. The learned Magistrate has recorded the precaution in column No. 4 in respect of Tulsi accused appellant and another (not before this Court) that ten under trials were included in the parade with similar height, colour etc. and Chippies were put on their distinctive marks. As noted earlier, the learned Magistrate had recorded small pox marks on the face of Tulsi accused appellant. Such small pox pits are always numerous and so if Chippies were taken to have been put on the numberous small pox pits on the faces of suspect (the accused) included in the parade and also on the corresponding location on the bodies of the under trials mixed, then what each witness would see would not be a human face but a mask and in that event there could not be any genuine identification. In this case, the learned Magistrate Sri Satya Prakash (PW 9) has stated in his cross-examination that he did not remember if under trials with small pox pits were mixed with the accused during the parade at the time of identification proceedings. He admitted that there is no mention about such mixing in the identification memo also. There is nothing to show that the inmates of the jail at the relevant time included a sufficient number of persons having small pox marks on their face to make such mixing possible. So the identification evidence against Tulsi accused appellant was bad for this reason also and the learned Addl. Sessions Judge went wrong in discarding the defence plea on this point by raising a presumption that under trial with small pox marks would have been mixed with the accused.
7. The learned counsel for the accused appellant Shitla Prasad has argued one more point. It is that the prosecution has set up his arrest on 14-1-1977 and about it Anirudh Kumar Misra S.O. (PW 10) testified at the trial that he was arrested on that date while he was assembled along with other and was preparing along with them to commit dacoity. He has pointed out that about the alleged arrest and the recoveries made from him a case was registered under Sections 399/402, I.P.C. and 25 Arms Act and he was prosecuted before the Court of Sessions in S.T. No. 37 of 1977, State v. Shitla Prasad and others and there the prosecution story about the spot arrest and recovery had been discarded by the learned Assistant Sessions Judge, Gyanpur, Varanasi in his judgment dated 30-3-1981, i.e. prior to the decision in the present trial by the learned Addl. Sessions Judge and that in respect of this acquittal a certified copy of the said judgment had been filed before the learned Addl. Sessions Judge who tried the present case. Before the learned Additional Sessions Judge, trying the present case of dacoity, the defence had taken the plea that his acquittal in that case for the offence under Sections 399/402, I.P.C. raises doubt about the truthfulness of the case against him in the present case and that due to the acquittal the value of the identification evidence against him in this case, in any case gets considerably reduced. This plea too was rejected by the learned Addl. Sessions Judge observing that it is immaterial whether he was arrested in a case under Sections 399/402, I.P.C. or somewhere else and that if this complicity was known in this dacoity and he was identified by the witnesses who can be relied upon, his previous acquittal cannot create suspicion. In the instant case, it is difficult to sustain this view taken by the learned Addl. Sessions Judge as the plea of the learned defence counsel has substance. If the accused appellant was implicated along with others in a case of assembly at a particular place for the purpose of committing dacoity and preparing to commit dacoity on the basis of a spot arrest with arms and ammunition and in that case the Sessions Court disbelieved the prosecution case and acquitted him not only that prosecution becomes tainted, the identification evidence against him in the present case also became tainted and highly suspect. This is because in a case based on identification evidence as in the present case the bona fide of the investigating officer becomes very important. It has to lead necessary link evidence from the making of arrest uptil the time of lodging in the jail to show that during this period the accused was kept Baparda and no opportunity was given to the witnesses to see and identify him. The accused could not be expected to lead direct evidence to show that witnesses were called and they were shown the accused in the lock up of the police station or in the way from the place of arrest to the police station or from the police station to the magisterial Court where he was taken for orders for remand to jail custody or from the Court to the jail concerned. However, if the defence is able to place on record circumstances, the cumulative effect of which was to make extraneous help to the witnesses highly probable, the bona fide of the prosecution is shaken and the identification evidence becomes suspect and the accused has to get the benefit of doubt.
8. Yet another point has been argued by the learned counsel for this accused-appellant Shitla Prasad. It is that he was arrested on 14-1-1977 as per the prosecution case and he was not promptly put up for test identification and it was only on 12-3-1977 that he was put up for test identification after 58 days of his arrest. Some case law has also been cited in this regard. In so far as this point is concerned, it is difficult to accept this contention because the defence has adduced the evidence of Banwari Yadav (D.W. 3) who testified that Tulsi, Shitla Prasad and one more accused were sent to the hospital about a month before 2-3-1977 and that at that stage, there was no entry about their legs being amputated and that on 2-3-1977 when they had been brought back from the hospital and admitted to jail, at that time there was an entry in the record that they came with their one leg each amputated. It means that when they were sent to hospital, they were not in a fit condition of health and that might be the reason that their identification proceedings could not be held in this period.
9. Apart from the above, the learned counsel for these accused appellants has pointed out that while in the case of Surendra Nath Dubey (P.W. 1), the performance in identification parade was six correct and three wrong; in the case of Ravindra Nath (P.W. 2) and Balkeshwar Nath (P.W. 4), the performance of each was 8 correct and 1 wrong. His contention in that the result of identification of the witnesses Ravindra Nath (P.W. 2) and Balkeshwar (P.W. 4) was too good to be believed. This argument of the learned counsel for the accused-appellants has got substance. It is difficult to believe regard being to the common course and the opportunity that could at best be available to the witnesses in this case with the help of light of fire, light of torches of witnesses and the light of torches of dacoits, as set up by the witnesses; assuming the same to be available, that they would be able to keep their mental picture of dacoits so much alive and vivid from the date of occurrence 24/25-12-1976 till 12th March, 1977 when they would be able to identify as many as eight out of the nine persons arrested out put up for test identification without making a mistake about any of these 8 (eight) persons and would make mistake only about the 9th person. Such too good identification could be made only if some external aid was given to the witnesses surreptitiously or because the accused person were known to the witnesses so the evidence of identification given by Ravindra Nath (P.W. 2) and Balkeshwar Nath (P.W. 4) was not worthy of credence as the result of their identification was too good to be believed. That being so, there remains the evidence of Surendra Nath Dubey (P.W. 1) and the conviction of these two accused-appellants Tulsi and Shitla Prasad cannot be founded on his sole testimony. This is apart from the other infirmities in the prosecution case and prosecution evidence as against accused-appellants Tulsi and Shitla Prasad recorded by me in this judgment earlier.
10. The above view taken by me about the evidence of Ravindra Nath (P.W. 2) and Balkeshwar Nath (P.W. 4) as a too good to be believed applies equally to the case as against accused-appellants Vijay Narain and Ravindra Nath as it applied to the case of accused-appellants Tulsi and Shitla Prasad accused-appellants whose cases have been dealt above by me. As against these two accused-appellants Vijay Narain and Ravindra Nath, the sole testimony of Surendra Nath Dubey (P.W. 1) cannot be made the basis of conviction. There is no recovery of any kind from any of these accused-appellants Vijay Narain and Ravindra Nath or from Shitla Prasad and Tulsi.
11. Vijay Narain accused-appellant claimed that he was known to the prosecution witnesses from before. It was elicited from Surendra Nath Dubey informant (P.W. 1) in his cross-examination that he had studied in Suriyawan College in the year 1974-75. He was suggested that in those days Vijay Narain accused-appellant also studied in that college. He pleaded ignorance. He also pleaded ignorance about the suggestion that accused Vijay Narain was a player of Kabaddi. Ravindra Nath (P.W. 2) has admitted in his cross-examination that he studied in Suriyawan College uptil 1976 but he replied that he did not know if Vijay Narain accused-appellant was also studied in the same college and that he did not, know if this accused was a player of Kabaddi. Balkeshwar Nath (P.W. 4) was not made any suggestion on this point. In the cross-examination of Balkeshwar Nath (P.W. 4), it was elicited that his Sasural existed in Sagar Raipur; that Hari Shanker belong to his Sasural. He could not tell if there was Sasural of Vijay Narain accused-appellant at the house of the cousin brother of said Hari Shanker. He denied the suggestion that Vijay Narain accused-appellant used to visit his maternal uncle and that he also used to visit that place. This suggestion is vague because it was not stated as to who was the maternal uncle of Vijay Narain accused-appellant. Any how, the witness was suggested that he knew Vijay Narain accused-appellant from before and he denied it. It was also suggested by the defence that he has been shown Vijay Narain and Ravindra Nath accused-appellants at the police station after their arrest. He denied the suggestion.
12. Anirudh Kumar Misra S.O. (P.W. 10) testified the arrest of accused-appellant Vijay Narain from his pumping set on 13-1-1977 and claimed that he has made this accused-appellant Baparda. Cross-examined further by the defence, he could not tell how far the police station was from the place of arrest of accused-appellant Vijay Narain. He testified that after the arrest, they went to the police station on foot. He admitted in his cross-examination that he kept Vijay Narain accused-appellant at the police station for 151/2 (fifteen and a half) hours and then his departure was made for the Court on 14-1-1977 at 8.40 a.m. He was suggested that litigation was going on between Vijay Narain accused-appellant and Sidh Narain. He denied it and also denied the suggestion that Sidh Narain is his relation. He stated that he did not know Sidh Narain Pradhan and denied that he had implicated this accused-appellant at the instance of Sidh Narain Pradhan.
13. In his statement under Section 313 Cr.P.C., Vijay Narain accused-appellant claimed that he was prosecuted out of enmity and that the witnesses are deposing against him under the pressure of the police and due to enmity. He further claimed that in 1974-75 he used to study in Inter College Suriyawan and that Ravindra Nath Dubey (P.W. 2) and Surendra Nath (P.W. 1) used to study with him in the same college; that he himself was a player of Kabaddi and that these witnesses knew him very well. He further stated that his Nanihar was at the house of Narain Chaubey of Sagar Raipur and that in their Khandan, there is also relationship of Ravindra Nath (P.W. 2) and Surendra Nath Dubey (P.W. 1); that Sidh Nath was Pradhan of the village and his relationship was with Anirudh Kumar Misra S.O. (P.W. 10). He further claimed in his statement that his litigation and enmity was going on with the said Pradhan Sidh Narain from long before. He further claimed that he was arrested from his house and kept at the police station for two days and that he was got identified by the witnesses and his photograph was also taken. He also claimed that he was falsely implicated in this case at the instance of Sidh Narain Pradhan.
14. This accused-appellant Vijay Narain has led evidence in his defence, at the trial. One of the witnesses examined by him was Prem Narain Chaubey (D.W. 1). Prem Narain Chaubey (D.W. 1) claimed on oath that Vijay Narain accused-appellant was the son of his Buwa (father’s sister); that Vijay Narain accused-appellant visited him for the last 7-8 years; that there is house of Hari Shanker in the vicinity to his house (the witness house); that Hari Shanker is his Pattidar; that the daughter of Hari Shanker had been married in Arjunpur at the house of Kamla Pati; that in marriages, they visited each other. He also stated in his testimony that Ravindra, Surendra and Balkeshwar P.Ws. are sons of Kamla Pati who visited Hari Shanker and also him and further that Ravindra, informant and others visited his house when his great grandmother had died 3-4 months back. He claimed that this witness used to visit him for the last 6-7 years. As far as his testimony is concerned, little weight can be attached to it because according to him, Ravindra Nath, Surendra Nath and Balkeshwar P.Ws. are sons of Kamla Pati while actually the position is what while Surendra Nath (P.W. 1) is son of Kamla Pati Dubey; Ravindra Nath Dubey (P.W. 2) and Balkeshwar Nath (P.W. 4) are both sons of Mata Charan Dubey. Admittedly, his cousin brother Sri Narain has stood surety for accused Vijay Narain in the present case. He cannot tell the correct name of the daughter of Hari Shanker who, according, to him was married to Balkeshwar (P.W. 4). The prosecution case was that Hari Shanker’s daughter was not married to Balkeshwar (P.W. 4). That being the state of things, the statement of Prem Narain (D.W. 1) cannot be acted upon.
15. Then Koleshwar Nath, father of Vijay Narain accused-appellant, has entered the witness box as D.W. 2. He claimed that his litigation was going on with Sidh Narain in consolidation and civil side; that the election of village Pradhan was contested between him and Sidh Narain due to which enmity is going on. He also claimed that Anirudh Kumar Misra S.O. (P.W. 10) was visiting term and related to Sidh Narain and that it was Sidh Narain Village Pradhan who got him falsely implicated in this case. No documents have been filed for showing the litigation and/or the contest in the election and for the said reason, no elicit reliance can be placed on the testimony of this witness on the question of litigation and enmity with Sidh Narain Village Pradhan nor could it be said on the basis of his evidence that Sidh Narain was related to Anirudh Kumar Misra S.O. (P.W. 10).
16. Some documentary evidence has been filed from the side of the accused-appellant Vijay Narain about the study in the school. A sport certificate (Ext. Kha-1) has been filed in the name of Vijay Narain Tripathi of Shree Neharu Adarsh Higher Secondary School, Alamganj Jaunpur. It, does not relate to the said school. Then some sport certificates have been filed which are Exts, Kha-3, Kha-4 and Kha-5, in the name of Vijay Narain Tripathi son of Koleshwar Nath Tripathi of Sewashram Inter College, Suriyawan, Varanasi. Some how they have been exhibited but they have not been proved and the same cannot be looked into. They are not public documents and then they have also not been connected with Vijay Narain accused-appellant. One relevant public document that has been filed, is Ext. Kha-2, an extract of Scholar Register of Sewashram Inter College Suriyawan, Varanasi in the name of Vijay Narain son of Kawleshwar Nath, Malai, Alamganj, Jaunpur, showing that this student was admitted in the school on 31-7-1975 and his name was struck off from the school on 30-12-1975 due to non payment of dues. Another document filed from the side of defence was extract of Scholar Register in respect of Ravindra Nath Dubey s/o Mata Charan Dubey. This apparently relates to Ravindra Nath (P.W. 2). It shows that he was admitted on 27-7-1967 and studied till 30-6-1976 in the Sewashram Inter College Suriyawan, Varanasi. On the basis of this document and the admission of Surendra Nath (P.W. 1) and Ravindra Nath (P.W. 2) for that own studying in that school, there is likelihood of these witnesses knowing this accused-appellant from before the occurrence. Though, no categorical finding can be given on the basis of these documents because a large number of students are normally studying in a school and it is not necessary that they must know each other personally by name or by face or by both. However, in view of the other infirmity in the prosecution case and evidence, noted by me earlier, it is quite likely that he was known to the witnesses from before and that facilitated his identification at the identification parade.
17. Ravindra Nath accused -appellant has claimed that he was implicated in this case at the instance of one Rama Shanker and that he was shown to the witnesses when he was in the custody at the police station. Suggestions have been made to all the three eye witnesses that this accused-appellant was shown to them at the police station. They have denied the suggestion. Anirudh Kumar Misra S.O. (P.W. 10) has testified that this accused-appellant was arrested on 10-3-1977 at 1.30 p.m. at the railway station of Sarachandsarai and made Baparda. Cross-examined, he could not say how far away from the police station this arrest was made. It was, however, elicited from him in his cross-examination that the departure of this accused-appellant was made from the police station after his detention there for about 16 hours. He denied the suggestion that he made false implication of this accused-appellant at instance of Rama Shanker. He also admitted that this accused Appellant Ravindra Nath and accused-appellant Vijay Narain both were arrested from their houses and were shown to the witnesses at the police station. There is nothing to show any particular connected between the said Rama Shanker and the said S.O. of the police station (Anirudh Kumar Misra PW10) from which an inference of false implication at the instance of Rama Shanker may be raised. Then in the statement under Section 313 Cr.P.C. this accused-appellant Ravindra Nath claimed that Rama Shanker of his village had taken loan on the basis of promissory note from his father and that at the instance of Rama Shanker, he has been arrested, brought to the police station and shown to the witnesses and falsely implicated. He claimed that Rama Shanker had good relations with the Station Officer concerned aforesaid. From the side of this accused-appellant, no oral of documentary evidence was let at the trial.
18. As noted earlier, this accused-appellant Ravindra Nath was in police custody at the police station for as many as 16 hours and, therefore, it did give opportunity to the police to show this accused-appellant to the public witnesses and it is quite likely that the identification of this accused-appellant and Vijay Narain accused appellant by the public witnesses Surendra Nath (P.W. 1) Ravindra Nath (P.W. 2) and Balkeshwar (P.W. 4) at the identification proceedings was attributable to the showing to the accused appellant to them by the prosecution during this period this accused-appellant and also Vijay Narain accused-appellant were in the lock-up of the police station for the period of time, as not earlier.
19. We have noted that the identification evidence against all the accused-appellants, namely, Tulsi, Shitla Prasad, Vijay Narain and Ravindra Nath, was of doubtful value. Consequently the conviction of none of these accused-appellants can be sustained.
20. For the reasons aforementioned, both the appeals are allowed. The convictions and sentence of accused-appellants Tulsi, Shitla Prasad, Vijay Narain and Ravindra Nath for the offences under Section 395 I.P.C. is set aside and they are acquitted of the same. They are on bail from this Court. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
21. Let copy of the judgment be sent to the Sessions Judge concerned for action and compliance of records.