1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T (1) D.B.CRIMINAL APPEAL NO.340/1983 Narain Vs. The State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.406/1983 Amar Singh & Ors. Vs. The State of Rajasthan (3) D.B.CRIMINAL APPEAL NO.551/1984 State of Rajasthan Vs. Amar Singh & Ors. D.B.CRIMINAL APPEAL AGAINST THE JUDGMENT & ORDER DATED 21st JULY, 1983 PASSED BY ADDITIONAL SESSIONS JUDGE NO.1, ALWAR IN SESSIONS CASE NO.9/83. DATE OF JUDGMENT ::: MAY 12, 2010 P R E S E N T HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN HON'BLE MRS.JUSTICE MEENA V.GOMBER Dr.P.C.Jain, for accused Narain Mr.S.C.Purohit, for accused Amar Singh & Ors. Mr.J.R.Bijarnia, Public Prosecutor for the State BY THE COURT:(Per Hon'ble N.K.Jain J.) REPORTABLE/- Heard the learned counsel for the parties. 2. These three appeals are directed against the impugned judgment dated 21st July, 1983 passed by Additional Sessions Judge No.1, Alwar in Sessions Case No.9/1983. Therefore, they are being disposed of by this common order. 2 3. Learned trial court vide its impugned judgment and order dated 21st July, 1983 while acquitting 6 accused persons i.e. (1) Amar Singh S/o Behari Singh, (2) Jaggi @ Jograj, (3) Mullan S/o Vishambhar Dayal, (4) Jadunath Singh S/o Babusingh, (5) Deputy Singh S/o Shriramsingh and (6) Narain S/o Prabhati from the charge under Section 395 IPC, convicted and sentenced each of the accused persons under Section 411 IPC to 3 years' rigorous imprisonment and a fine of Rs.1000/-; in default of payment of fine to further undergo 6 months' simple imprisonment. Being aggrieved with the same, the accused Narain has preferred Appeal No.340/83 and Amar Singh & Ors. have preferred Appeal No.406/83. The State of Rajasthan has preferred Appeal No.551/84 challenging the order of acquittal of accused persons from the charge under Section 395 IPC. 4. Briefly stated the facts of the case are that a written report (Ex.P17) was lodged on 7.11.1980 by one Raghuraj Singh (P.W.18), a neighbour of Mangtu Ram (P.W.1) at Police Station, Malakhera, District, Alwar, wherein it was alleged that in the night at about 3 10:30 PM (during intervening night of 6th & 7th November,1980) 7-8 persons armed with lathies, guns committed dacoity in the house of Mangtu Ram S/o Ram Kishore. They inflicted injuries on the person of Mangtu, his wife Om Devi, daughter Kanta and looted ornaments. The villagers made a hue and cry and on it they fired gun whereupon the pellets after rebounding from his wall, hit on the person of Karan Singh and Chhittar Singh causing injuries to them. It was also alleged that he can identify the dacoits. On the basis of aforesaid written report, F.I.R. No.144/80 (Ex.P18) was registered under section 395/397 IPC. 5. During investigation the complainant filed a list of articles (Ex.P1), which were alleged to have looted by dacoits and site- plan (Ex.P5) was prepared. During investigation, five accused persons Amar Singh, Jaggi @ Jograj, Mullan, Jadunath Singh and Deputy Singh were put into Jail on 18th November, 1981 and their test identification parade (Ex.P2) was conducted on 24.11.1981 at Bandi Kui Jail. Accused Narain was arrested on 20th March, 1982 vide arrest memo Ex.P25 4 and his identification parade (Ex.P3) was conducted in Alwar Jail on 23rd March, 1982. During custody, the accused persons gave information under Section 27 of the Evidence Act in March, 1982 and certain articles were recovered. 6. After completion of investigation, the police filed a challan against above named six accused persons under Section 395 & 397 IPC in the court of Judicial Magistrate No.3, Alwar, who committed the case for trial on 12.7.1982 to the court of Sessions Judge, Alwar, who transferred the same for trial to the court of Additional Sessions Judge No.1, Alwar. 7. Learned trial court framed charge against accused persons on 24th July, 1982 under Section 395 IPC, which was denied by them and trial was claimed. The prosecution examined P.W.1 to P.W.22 and produced documentary evidence Ex.P1 to Ex.P35. Thereafter, statements of accused persons were recorded under Section 313 Cr.P.C., wherein it was stated that they have been falsely implicated in the case. No witness 5 was examined in defence, but Ex.D1 to Ex.D5 statements of prosecution witnesses recorded under section 161 Cr.P.C. were produced. 8. Learned trial court vide impugned judgment acquitted all the accused persons of the charge under Section 395 IPC, but convicted and sentenced them under Section 411 IPC, as mentioned above. 9. Learned counsel Dr.P.C.Jain appearing on behalf of accused Narain argued that learned trial court has rightly acquitted accused Narain of the charge under Section 395 IPC and has committed an illegality in convicting him under Section 411 IPC without framing any charge in this regard, identification parade (Ex.P3) dated 23rd March, 1982 was rightly disbelieved by the trial court, identification parade took place after a gap of about 16 to 17 months from the date of incident, P.W.2 Om Devi, P.W.4 Kanta did not identify accused Narain, other independent eye-witnesses P.W.3 Chhittar Singh and P.W.5 Karan Singh also did not identify accused Narain, the list of articles Ex.P1 was not furnished at the time of filing 6 of FIR, but it was furnished subsequently during investigation, which was rightly disbelieved by the trial court and there is no valid reason to believe it. He further contended that neither in the written report nor in the statements, not a single prosecution witness has stated that which of the dacoit/person, out of six was responsible for giving beating to Mangtu Ram or Kanta or Om Devi, no light was there to see the faces or figures of the dacoits, the figures of the dacoits were not mentioned in the FIR nor it was disclosed in the statements of witnesses recorded under section 161 Cr.P.C. He further contended that appeal of the State challenging the order of acquittal of the accused of the charge under Section 395 IPC is liable to be dismissed and accused is further entitled to be acquitted of the offence under Section 411 IPC. He alternatively contended that in case, this Court does not interfere in the order of conviction under Section 411 IPC then sentence of imprisonment of accused passed by the trial court be reduced to the sentence of imprisonment already undergone by him. 7 10. Learned counsel Shri S.C.Purohit appearing on behalf of remaining five accused persons adopted the arguments of learned counsel for accused Narain and further contended that accused persons were shown to prosecution witnesses before their identification parade (Ex.P2) was conducted in Bandikui Jail on 24th November, 1981. He further contended that when accused persons were put in Jail on 18th November, 1981 and their identification parade took place on 24.11.1981 then any information furnished by them on 4.3.1982 and 19.3.1982 and recovery of certain articles in pursuance thereof is of no consequence as no explanation has been furnished by the prosecution for the delay in recording information and recovery of the articles. He also argued that P.W.1 Mangtu Ram, P.W.3 Chhittar Singh and P.W.5 Karan Singh did not identify these five accused persons and they were identified by P.W.2 Om Devi and P.W.4 Kanta after a gap of about 16- 17 months from the date of incident. The trial court has rightly disbelieved the prosecution evidence with regard to identification parade and other evidence relating to identification of accused 8 persons. The finding of the trial court is based on proper appreciation of evidence and accused persons have rightly been acquitted of the charge under Section 395 IPC. There are no compelling and substantial reasons for interfering in the finding of the learned trial court. Therefore, State appeal is liable to be dismissed. 11. So far as conviction of accused persons under Section 411 IPC is concerned, he contended that no charge was framed against accused persons for the offence under Section 411 IPC and recovery of the articles was made after a gap of about 16-17 months from the date of incident and after a gap of about more than 3½ months from the date of test identification parade of the accused persons, therefore, the said evidence is not believable and reliable and the trial court committed illegality in convicting the accused persons under Section 411 IPC. Therefore, they are entitled to be acquitted of the offence under Section 411 IPC also. In alternate, he contended that although these accused persons were granted bail by this Court after their conviction, but from the 9 order-sheet dated 23rd January, 1984 written by Registry of this Court in Bail Application No.623/83 in Appeal No.406/83, it is clear that accused persons have already served out the sentence of imprisonment awarded by the trial court as they did not submit any bail bonds in pursuance of bail order dated 22nd September,1983 passed by this Court. 12. Learned Public Prosecutor vehemently opposed the prayer of learned counsel for the accused persons for their acquittal from offence under Section 411 IPC and contended that they are liable to be convicted under Section 395 IPC also as there was sufficient evidence available on record to connect them with the crime. He referred to identification parade of accused Narain (Ex.P3), identification parade of remaining five accused persons (Ex.P2) and contended that accused Narain was rightly identified by P.W.1 Mangtu Ram in whose house the dacoity was committed, remaining five accused persons were rightly identified by P.W.2 Om Devi and P.W.4 Kanta the wife and daughter of P.W.1 Mangtu Ram. There was sufficient light to recognise the figures of the dacoits by P.W.1 10 Mangtu Ram, P.W.2 Om Devi and P.W.4 Kanta, the accused persons furnished information under Section 27 of the Evidence Act and in pursuance thereof recovery of articles, as per list of articles (Ex.P1) was made. He contended that learned trial court committed illegality in recording a finding that evidence relating to identification of the accused is illegal and the same is liable to be reversed by this Court. He, therefore, contended that there are compelling and substantial reasons for reversing the finding of the trial court and convicting the accused persons of the charge under Section 395 IPC. So far as offence under Section 411 IPC is concerned, he fairly and frankly admitted that prima facie the offence under Section 411 IPC is not made out for the simple reason that the recovery of articles (ornaments) was made from the so called dacoits and they were not the purchasers of the stolen items and they were not having possession of the articles knowing that they were stolen property and further that no charge of this offence was framed against them. 11 13. We have considered the submissions of the learned counsel for the parties and minutely scanned the impugned judgment and record of the trial court. 14. There are two types of evidence adduced by the prosecution in the present case; one about identity of the accused persons and secondly about the recovery of articles in pursuance of information furnished by accused persons while in custody i.e. under Section 27 of the Evidence Act. Learned trial court disbelieved the evidence relating to identification of the accused and acquitted them of the charge under section 395 IPC, but on the basis of possession of articles with the accused persons, as recovery was made as per their information, the trial court convicted them for offence under Section 411 IPC. 15. First of all, we will consider the evidence relating to identification of the accused persons, whether they committed offence of dacoity punishable under Section 395 IPC. In this connection, it is relevant to mention that incident took place during 12 the intervening night of 6th and 7th November, 1980. Ex.P2 is the test identification parade of five accused persons namely Amar Singh, Jadunath Singh, Mullan, Deputy Singh and Jaggi @ Jograj, according to which the accused persons were put in Jail on 18.11.1981 and identification parade was conducted in presence of P.W.22 Shri Rajendra Singh Judicial Magistrate at Sub Jail, Bandikui on 24.11.1981. P.W.1 Mangtu Ram and P.W.4 Kanta both identified all the accused persons correctly. Prosecution witnesses Chhittar Singh, Karan Singh and Prahlad did not identify any of the accused persons. P.W.2 Om Devi did not identify accused Amar Singh and correctly identified the remaining accused persons. There is a note in Column No.10 of Ex.P2 that all the accused persons stated that on 15.11.81 and 18.11.81, they were shown in Bandikui Police Station to Mangtu and his daughter (Kanta) & wife (Om Devi). 16. Ex.P3 is the test identification parade of Narain, who was arrested on 20th March, 1982, the identification parade was conducted on 23rd March, 1982 in presence of 13 Shri R.D.Aneja Civil Judge and Chief Judicial Magistrate, Alwar, according to which Mangtu Ram identified Narain, but P.W.4 Kanta and P.W.2 Om Devi did not identify him. There is a note in Column No.11 of Ex.P3 that he has been kept in custody at Police Station for last one month and he was shown to all the witnesses and his soles of both the foot were put to burn, the witness took about 12 minutes in identifying. The witness did not identify in first round and when accused was shown specifically then witness took about 4 minute. Learned trial court has considered the evidence of Mangtu Ram (P.W.1), Chhittar Singh (P.W.3), Karan Singh (P.W.5), Om Devi (P.W.2), Kanta (P.W.4) and Kishan Singh (P.W.19) in detail and has observed that figures of accused persons were not mentioned in the written report nor in the statements of prosecution witnesses under Section 161 Cr.P.C. nor the same were disclosed before identification parade took place, which has taken place after a gap of about one year and four months from the date of the incident. The figures of dacoits were asked by investigating agency to prosecution witnesses, but the same were not disclosed by 14 them. Learned trial court observed that the object of identification parade is that investigation of the case may go in right angle. When the figures of the dacoits were not disclosed by prosecution witnesses then a possibility cannot be ruled out that they were wrongly identified during identification parade. Although, the witnesses have stated that they did not see the accused persons before identification parade, but their statements cannot be relied upon as identification parade was conducted after a long delay of about one year and four months. 17. We have considered the finding of the trial court with regard to identification of the accused persons recorded in Paras 39 to 42 in the impugned judgment in the light of oral and documentary evidence including the statements of P.W.1 Mangtu Ram, P.W.2 Om Devi, P.W.3 Chhittar Singh, P.W.4 Kanta, P.W.5 Karan Singh, P.W.19 Kishan Singh, P.W.22 Rajendra Singh and Ex.P2 & Ex.P3 and find that the finding of the trial court in this regard is based on proper appreciation of the evidence. From written report (Ex.P17), it is clear that figures of the 15 dacoits were not mentioned in it. The figures are also not disclosed by the prosecution witnesses during investigation of the case when their statements were recorded under Section 161 Cr.P.C. There is a note in column No.10 of Ex.P2 that Mangtu and his wife and daughter were allowed to see the accused persons in Sub Jail, Bandikui on 15.11.1981 and 18.11.1981. The injured and independent eye-witnesses Chhittar Singh and Karan Singh did not identify any of the five accused persons. Similarly, Prahlad also did not identify any five of the accused persons. Prahlad was not examined by the prosecution during trial of the case. Om Devi similarly situated prosecution witness did not identify accused Amar Singh. The column No.11 of Ex.P3 also reveals that accused Narain was shown to witnesses before identification parade took place, as stated by accused to the Judicial Magistrate. Similarly situated prosecution witnesses Kumari Kanta and Smt.Om Devi both did not identify accused Narain on 23rd March, 1982. Site-plan (Ex.P5) shows that there was no electric bulb in the Verandah marked 'A', where P.W.1 Mangtu Ram was sleeping. There was dark night as admitted by prosecution 16 witnesses. The another electric bulb at Chakki Pyare Lal marked “15” was far away and as per prosecution evidence, the said electric bulb was broken by the dacoits before entering into the house of Mangtu Ram. In these circumstances, there was no occasion to see features and figures of the dacoits by the prosecution witnesses. 18. Identification parade memo (Ex.P2) shows that dummy accused put in identification parade of accused Mullan were not of similar age group as that of accused. One dummy person Ramphool was 35 years of age. Gaji was 56 years of age and one Kanhaiya was 70 years of age. Similarly a dummy person put in place of accused Jaggi @ Jograj was 25 years of age, another was 42 years of age and third one was also about 45 years of age. There were total 7 dummy persons with him and they were not that of similar age group. Similar is the position in respect of other accused persons namely Deputy Singh, Jadunath Singh and Amar Singh. Hon'ble Apex Court in State of Goa vs. Sanjay Thakran & Anr. (2007 (3) SCC 755) observed that dummy accused put in test identification parade were not of similar age group as that 17 of accused and it created a serious doubt regarding fairness of test identification parade. Para 23 to 25 of the judgments are reproduced as under:- “23. Another piece of evidence, on which the prosecution strongly relied, is identification of the accused persons in the test identification parade on 7-2-2000. PW 24 V.S.N. Alornekar, Special Judicial Magistrate, Tiswadi and Badez Talukas conducted test identification parade, wherein PW 6 Amit Banerjee, PW 30 Suhasini Govekar and PW7, Ganpat, were the identifying witnesses. PW 6 had identified both the accused persons as the persons who came with D-2 Priya Nanda to Hotel Seema on the night of 27-2-1999. The trial court as well as the High Court have found certain irregularities in the manner of conducting the identification parade. A-1 and A-2 were placed in the same identification parade with 6 dummies each, which was contrary to para 16(2)(h) of the Criminal Manual issued by the High Court of Bombay, which mentioned that: “If two suspects were not similar in appearance or where there were more than two suspects, separate parade should be held using different person on each parade.” 24. We have gone through the original record of the memorandum of identification parade (Exhibit 70) and have found that PW 24 has mentioned as follows in this memorandum: “The dummy accused who are put in the parade i.e. 6 ladies and 6 gents are more or less of the same features and age groups as that of the accused couple to be put in the parade. They are also more or less of the same height and status in appearance as that of the accused.” 18 25. As far as the case of A-1 is concerned, who was around 38 years old at that time, 5 of the dummy persons belonged to age group of 23- 27 and another dummy was 40 years old. Hence, there is a serious doubt regarding the fairness of the test identification.” 19. Similarly, Hon'ble Apex Court in Shabad Pulla Reddy & Anr. vs. State of A.P. (1997 (8) SCC 495) observed that after a gap of 5-6 months from the date of incident, it was not possible for the witnesses to identify the correct person or the correct material i.e. the stolen property. 20. In the present case, the identification parade was conducted after a gap of more than one year and the so called stolen property was also recovered after more than 16-17 months. 21. Hon'ble Apex Court in State of Madhya Pradesh vs. Ghudan (AIR 2004 SC 797) held that omission to point out existence of sufficient light for identification in sketch by Investigating agency, the identification of accused by informant is not reliable especially when similarly situated witness 19 had failed to identify. 22. In the present case, Ex.P5 site-plan makes it clear that there was no electric bulb in Verandah, where Mangtu Ram was sleeping. Prosecution witnesses also admit that there was dark night on the date of incident, i.e. prior to Deepawali. P.W.2 Om Devi and P.W.4 Kanta wife and daughter of P.W.1 Mangtu Ram respectively were similarly situated witnesses and both of them did not identify the accused Narain. P.W.4 Kanta also did not identify accused Amar Singh. P.W.3 Chhittar Singh and P.W.5 Karan Singh were injured witnesses and both of them did not identify any of the six accused persons. In these circumstances, we are of the view that finding of the learned trial court in this regard is right and no interference in the same is called for. 23. We are also conscious of fact that State appeal is against the order of acquittal of the accused persons from the charge under Section 395 IPC and it is a settled law that if, on appreciation of evidence, two views are possible, the view in 20 favour of the accused has to be adopted. In this regard reference may be given to Bodhraj alias Bodha & Ors. vs. State of Jammu & Kashmir (2002 (8) SCC 45). It is also settled law that order of acquittal should not normally be interfered with unless there are compelling and substantial reasons for doing so. We do not find any compelling and substantial reasons in the present case so as to interfere in the order of acquittal of the accused persons of the charge under Section 395 IPC. In these circumstances, we do not find any force in the State appeal and the same is liable to be dismissed. 24. So far as conviction of accused persons under section 411 IPC is concerned, we may refer to a judgment of Hon'ble Apex Court in Shabad Pulla Reddy & ors. vs. State of A.P. (supra), wherein the accused persons were acquitted from the charge under Section 397 IPC and they were convicted under Section 411 IPC without framing charge under Section 411 IPC, the Hon'ble Supreme Court held that, “but in absence of any charge framed under Section 411 IPC and on their acquittal of the charge under Section 396 IPC, no order of conviction can be recorded against them.” 21 25. In the present case, it is an admitted position that no charge was framed against the accused persons under Section 411 IPC, therefore, in view of authoritative pronouncement of Hon'ble Apex Court, as referred above, the accused persons could not have been convicted of the offence under Section 411 IPC. 26. Apart from above, it is relevant to mention that even otherwise, the accused persons could not have been convicted under Section 411 IPC, as the prosecution witnesses have not mentioned any distinctive marks on the articles. The list of articles is Ex.P1. It was furnished by PW 1 Mangtu Ram during investigation of the case and a bare perusal thereof would go to show that no distinctive mark was mentioned on any of the articles, which could be made basis for their proper identification from similar articles. 27. Hon'ble Apex Court in State of Goa vs. Sanjay Thakran & Anr.(supra) held that persons identifying articles did not have sufficient opportunity to see the said 22 articles being used by the deceased for a long duration, further these articles not carrying any distinctive marks on the basis of which these could be distinguished from similar articles which were easily accessible and available in market then it was held identification of the said articles as belonging to deceased, could not be believed. 28. It is also relevant to mention that articles recovered as per so called information of the accused were not tallied with the articles mention in Ex.P1. A