U.S. Tripathi, J.
1. The above four appeals have been preferred by respective appellants against the judgment and order dated 30-9-1980 passed by Sri S.K. Agnihotri, the then Additional Sessions Judge, Aligarh in Session Trial No. 532 of 1979 convicting the appellants under Section 396 I.P.C. and sentencing them to imprisonment for life.
2. All the appeals arise out. of same judgment and common question of fact and law are involved in all the four appeals and, therefore, these appeals are taken up together for decision by a common Judgment.
3. The prosecution story, briefly stated, was that Heera Lal deceased, Aidal Singh deceased and Bhagwat Singh (P.W.2) were real brother and residents of village Ratanpur, P.S. Sikandararau, District Aligarh. Appellants Harpal and Sukhpal were real brothers and first cousins of Bhagwant Singh (P.W.2), Heera Lal and Aidal Singh deceased. Appellant Ajanti resident of Sikandar Pur, P.S. Akbarabad was allegedly Sarhu of appellant Sukhpal and sister of appellant Munna Giri was married in the village of Bhagwant Singh (P.W.2). Chhote Giri and Jamuna Giri of the said village had executed sale deed on 13-7-1979 in favour of appellant Sukhpal regarding Abadi land. Subsequently, on 20-7-1979 a sale deed of the same land was executed by Chandan Giri (P.W.3) in favour of Bhagwant Singh (P.W.2), Heera Lal deceased arid Aidal Singh deceased. The execution of above sale deeds gave rise to criminal litigation and proceedings under Sees. 107/116 and 145 Cr.P.C. were initiated between Bhagwant Singh (P.W.2), Heera Lal deceased, Aidal Singh, Chandan Giri (P.W.3) on one side and appellant Sukhpal and their vendors on the other side and the vendees on each side were asserting rights over said Abadi Land.
4. Bhagwant Singh (P.W.2) had his house, on the south western corner of the village. His house faced towards west, towards Rasta. In front of his house he had his Sahan (Ghera).
5. On the evening of 1-9-1979 at about 7.45 P.M. Bhagwant Singh (P.W.2) was sitting in his Sahan (Chauk) along with his elder brother Heera Lal deceased, Chhabi Nath Singh, Kundan Singh, Tikam Singh and others. A lighted lantern was placed there. .Another lighted lantern was inside the house where his younger brother Aidal Singh deceased, his wife Smt. Laungsree (P.W.5) and other ladies and children were busy in preparing and taking their meals. Chandan Giri (P.W.3) was passing through the Sahan of Bhagwant Singh (P.W.2), after performing pooja in the temple and he was called by Chhabi Nath, Samabandhi of Heera Lal deceased and he also joined them. At about 7.45 P.M. 15-20 dacoits armed with country made pistols, Lathis and spears came to the Ghera of Bhagwant Singh (P.W.2) and started firing on the persons sitting there. The shots hit Heera Lal deceased and Chandan Giri (P.W.3). Thereafter, the dacoits entered into the house of Bhagwant Singh (P.W.2) and shot at Aidal Singh deceased and caused injuries on Smt. Laungsree (P.W.5). They enquired about house hold properties and while leaving the spot removed 12 bore licensed gun of Aidal Singh deceased. In light of lantern and moon light appellants Sukhpal, Harpal, Ajariti and Munna Giri were recognised by the witnesses present in the Ghera and inside the house. The other dacoits were recognised by their faces.
6. Bhagwant Singh (P.W.2) along with other villagers was taking the injured persons Heera Lal, Aidal, Smt. Laungsree (P.W.5) and Chandan Giri (P.W.3) to hospital but in the way entrusting injured persons to others to take them to hospital he went to P.S. Sikandararau where he lodged a written report (Ext.Ka.5) at 9.15 P.M. Chik F.I.R. (Ext.Ka-1) was prepared by Head Constable Shiv Narain Singh (P.W. 1), who made an endorsement at G.D. (Ext.Ka.2) and registered a case under Section 395/397 I.P.C. against the appellants and other unknown dacoits. The injured Heera Lal, Aidal Singh, Smt. Laungsree (P.W.5) and Chandan Giri (P.W.3) were medically examined between 9.45 and 11.00P.M. on 1-9-1979 at Primary Health Centre, Sikadararau by Dr. S.K. Jha (P.W.8) who found following injuries on the persons of respective injured :-
Injuries of Heera Lal
1. Lacerated wound 3.5 cm x 2.5 cm x depth not probed on the middle of abdomen just above the umblicus.
Advised X-ray. Patient's condition was poor, pulse poor and weak, B.P. low. Referred to M.S. Hospital, Aligarh for admission. Nature of injury was kept under observation and it was fresh in duration.
Injuries of Aidal Singh
1. Lacerated wound 4.25 cm x 1.5 cm x Depth not probed on the left side of chest 11.5 cm below left nipple. Advised X-ray.
2. Lacerated wound 2 cm x 1.5 cm x depth not probed on the right side of chest lower part on the posterior axillary line. Advised X-ray.
3. Multiple abrasion in an area of 16 cm x around injury No. 1.
Condition of patient was poor, pulse slow, weak and low in vol. B.P. low, referred to M.S. Hospital, Aligarh. no charring or blackening seen around injury No. 1. Nature and object kept under observation. Injuries were fresh in duration.
Injuries of Smt. Laungsree
1. Contusion 4 cm x 1.5 cm on left shoulder.
2. Contusion 3 cm x 1.5 cm on the right shoulder.
3. Contusion 5 cm x 2 cm on the outer part of right upper arm middle parts.
4. Contusion 6 cm x 2 cm on the right scapular region.
5. Contusion 10 cm x 2 cm on the right side of back 7 cm below lower angle of scapula.
6. Contusion 4 cm x 1 cm on the left side of back.
Patient's condition was poor, kept under observation, referred to M.S. Hospital, Aligarh. nature kept under observation. Injuries were caused by hard and blunt object and were fresh in duration.
Injuries of Chandan Giri
1. Lacerated wound 1 cm x .25 cm x muscle deep on the back of left hand. Advised X-ray. Injury was simple in nature. Object under observation and fresh in duration.
Doctor prepared injury reports (Ext. Ka-8 to Ka. 11).
The investigation of the case was taken by Sri Sardul Singh Uppal (P.W. 10) who after interrogating Head Moharrir and some other witnesses at the police station reached place of occurrence. He inspected the place of occurrence and prepared site plan (Ext.Ka. 17). He also took into possession blood stained and simple earth from the spot and prepared recovery memo. Thereafter, he interrogated Bhagwant Singh (P.W.2), Chandan Giri (P.W.3) Smt. Laungsree (P.W.5), Kundan Singh (P.W.6) and other witnesses.
7. As the condition of Heera Lal and Aidal Singh was serious Sri Ram Autar Saxena (P.W. 9) the then Tahsildar Magistrate, Sikandararau was called at P.H.C. for recording their dying declaration. He recorded dying declaration (Ext. Ka. 15) of Heera Lal at 10.20 P.M. and that of Aidal Singh (Ext. Ka.16) at 10.20 P.M. in the presence of Dr. S.K. Jha (P.W.8) who appended his certificate on the above dying declarations.
8. Aidal Singh deceased, while being taken to District Hospital, Aligarh died in the way near Bandhari. Inquest of his dead body was conducted and dead body was sent for post mortem. Autopsy on the dead body of Aidal Singh deceased was conducted on 2-9-1979 at 3. 45 P.M. by Dr. R.A. Singh (P.W. 4), who found following ante mortem injuries on his person :-
1. One gun shot wound of entry oval in shape 1-1/3' x 3/4 x chest and abdominal cavity deep on left side front of chest. 41/2' below the left nipple. No charring, no blackening around the wound. Margins inverted and direction from front to left and back to right.
2. One gun shot wound of exit 3/4' x 1/ 2' x chest and abdominal cavity deep on right side of chest lower part in the post axillary line communicating to the injury No. 1 (the entry wound). Margins everted and irregular.
3. Multiple abrasion in area of 61/2' x 3 1/2' x around injury No. 1.
4. Abrasion in shape of a triangle 21/2' x 11/2' x just below left scapula.
5. Abrasion 3' x 1/2' just below left buttock.
6. Abrasion 1/2' x 1/4', 21/2' below injury No. 2.
9. On internal examination 8th, 9th and 10 ribs of left side were found fractured under injury No. 1. Left Pleura punctured and contained 2 ounces partly clotted blood. Peritoneum was punctured and contained 1/2 pint of partly clotted blood, Stomach punctured through and through and contained 3 ounces of food material mixed with blood. Small intestine was punctured. Gall Bladder punctured through and through. In the opinion of the Doctor cause of the death was due to shock and haemorrhage as a result of injury No. 1 and 2. The Doctor prepared post mortem report (Ext. Ka.6).
10. Heera Lal deceased was admitted in the District Hospital Aligarh where he died on 9-9-1979 at 6.00 P.M. Inquest of the dead body was conducted and dead body was sent for post mortem. The autopsy on the dead body of Heera Lal deceased was conducted on 10-9-1979 at 3 P.M. by Dr. B.N. Gupta (P.W.7), who found following ante mortem injuries on his person :-
1. One stitched wound 12 cm. in length, with 6 stitches in the middle of abdomen. Vertical dimension. On opening of the wound breadth was 1 cm x abdominal cavity deep.
2. One stitched wound 7.5 cm. in length, oblique direction upper limit of the wound up to injury No. 1 in the middle of the lower limit at a distance of 6 cm from the lower limit of injury No. 1. 7 stitches applied.
3. Punctured wound 1.5 cm. x 0.5 cm x abdominal cavity deep in the right side of abdomen. 7cm. above the right iliac crest.
4. Punctured wound 1.5 cm x 1 cm x abdominal cavity deep in the left side of abdomen over to middle and 8 cm. above left iliac ligament.
5. Scatter abrasion 5 cm x 1.5 cm on the lower aspect left elbow joint.
6. Scatter abrasion 4.5 cm x 1.5 cm on the front of left elbow joint.
7. Scatter abrasion 6 cm x 3 cm in the left side of back of 1 /3 lower part of back and 1 cm below the shoulder bone.
8. Scatter abrasion 10 cm x 5 cm in the upper half of left hip joint.
9. Scatter abrasion 1.5 cm x 0.5 cm in front of right elbow joint.
10. Scatter abrasion 4 cm x 0.5 cm in front of right wrist joint.
11. On internal examination pus was found in the small intestine. Pellets were recovered from abdominal wall.
12. In the opinion of Doctor death was due to peritonitis due to injuries (gun shot injuries). The Doctor prepared post mortem report (Ext. Ka.9).
13. The case was subsequently altered under Section 396 I.P.C. and the Investigating Officer on completion of investigation submitted charge sheet (Ext. Ka. 18) against the appellants.
14. All the appellants were charged with offence punished under Section 396 I.P.C. to which they pleaded not guilty and the defence of appellants Sukhpal and Harpal was that they were falsely implicated on account of enmity. Appellant Ajanti contended that prosecution witnesses were not knowing him from before. He claimed identification, but it was not done. Appellant Munna Giri contended that he was falsely implicated on instigation of Chandan Giri (P.W.3) who had enmity with his father.
15. To prove its case the prosecution examined Head Constable Shiv Narain (P.W.1), Bhagwant Singh (P.W.2), Chandan Giri (P.W.3), Dr. R. A. Singh (P.W.4), Smt. Laungsree (P.W.5), Kundant Singh (P.W.6), Dr. B.N. Gupta (P.W.7), Dr. S.K. Jha (P.W.8), Ram Autar Saxena, Tahsidar (P.W.9) and Sardul Singh Uppal (P.W. 10) I.O. Bhagwant Singh (P.W. 2), Chandan Giri (P.W.3), Smt. Laungsree (P.W.5) and Kundan Singh (P.W.6) were witnesses of fact while the evidence of remaining witnesses was formal in nature. The appellants did not adduce any oral evidence.
16. The learned Additional Sessions Judge on considering the evidence of prosecution held that the appellants had motive to commit the murder of two deceased and there was sufficient light to recognise the appellants. But from the statements of Bhagwant Singh (P.W.2) and Smt. Laungsree (P.W.5) it is clear that the offence committed by appellants and their associates technically did not fall under Section 396 I.P.C. as nothing was looted. The circumstances of the case are indicative of the fact that after having seriously injured Heera Lal and Aidal Singh deceased with fire arms, the offenders thought that their object had been accomplished and so they ran away from the spot arid only casually they removed the gun of Aidel Singh and did not try to loot other valuables from the house of the deceased. However, charge under Section 302 I.P.C. could not be framed against the accused applicants, in view of clear averments of dacoity made in the F.I.R. and also the evidence in support of it. The prosecution case, however, does not suffer from any weakness for that reason because admittedly, there existed enmity between the accused Sukh Pal and Harpal on one side and the two deceased and Bhagwant Singh (P.W.2) on the other side in respect of plot No. 287 for which both the parties got the sale deed executed in their favour from different persons, who were claiming to be owners of the said plot. Therefore, he concluded that the prosecution had succeeded in establishing its case against the accused appellants and charge framed against accused was found proved against them beyond any shadow of doubt. With these findings he convicted and sentenced the appellants under Section 396 I.P.C. as mentioned above.
17. Appellant Harpal died during the pendency of appeal in an accident, vide report of Chief Judicial Magistrate, Aligarh dated 4-2-2000. Therefore, the appeal preferred by appellant Harpal stands abated.
18. We have heard Sri A.D. Giri. learned senior counsel appearing for appellant Munna Giri and Sri Tapan Ghosh, Advocate appearing for appellants Sukhpal and Ajanti and the learned A.G.A. appearing for the respondent and have perused the evidence on record.
19. The learned counsel for the appellants contended that the allegations contained in the F.I.R. were that the appellants along with 10-12 other persons committed dacoity in the house of Bhagwant Singh (P.W.2) in the night of occurrence and some of them committed murder of Heera Lal and Aidal Singh deceased and caused injuries to Chandan Giri (P.W.3) and Smt. Laungsree (P.W.5). The appellants were charged with the offence punishable under Section 396 I.P.C. i.e. dacoity with murder. But the learned Trial Court concluded that the act of appellants and their other associates technically did not fall under Section 396 I.P.C. as it is proved from the evidence on record that no valuable was removed from the house of the deceased and object of appellants and their associates was only to kill the deceased and other male members of their family. Even then the trial Court found itself helpless in convicting the appellants under Section 302 I.P.C. as no charge was framed under such Section against them and ultimately he concluded that the prosecution has proved its case beyond all reasonable doubt and accordingly convicted the appellants under Section 396 I.P.C. Therefore, the findings of trial Court is self contradictory and the appellants could not be convicted under Section 396 I.P.C. as the said charge was not proved. Therefore, it is to be considered whether the dacoity had taken place in the house of Bhagwant Singh (P.W.2) and two deceased Heera Lal and Aidal Singh were murdered during the commission of said dacoity.
20. It is not disputed that Heera Lal and Aidal Singh deceased as well as Chandan Giri (P.W.3) sustained gun shot injuries and Smt. Laungsree (P.W.5) sustained blunt object injuries. It is also not disputed that Heera Lal and Aidal Singh deceased died on account of above injuries. The medical evidence of Dr. S.K. Jha (P.W.8), Dr. R. A. Singh (P. W.4) and Dr. B.N. Gupta (P.W.7) proved the injuries of the injured and death of Heera Lal and Aidal Singh on account of injuries on their persons.
21. Bhagwant Singh (P.W.2) stated that the dacoits took away licensed gun of his brother Aidal Singh and some papers and some small articles. In the F.I.R. it was mentioned that the list of looted articles would be submitted subsequently. But neither any list was ever submitted nor Bhagwant Singh (P.W.2) stated the articles allegedly looted. Chandan Giri (P.W.3) simply stated that the dacoits took away single barrel gun from the house of Heera Lal. Admittedly he had not gone inside the house of Bhagwant Singh (P.W.2) and he had also not seen any article being carried by the dacoits. Smt. Laungsree (P.W.5) had also stated that dacoits removed a gun and certain small articles. But she could also not give details of articles allegedly looted. Kundan Singh (P.W. 6) stated that he had not seen the occurrence. He was declared hostile by the prosecution. It appears that the gun of Aidal Singh deceased was incidentally removed and the object of appellants was not to commit dacoity. Smt. Laungsree (P.W.5) further stated that the dacoits were saying that they would destroy the house of Heera Lal as he would not stop helping Chandan Giri (P.W. 3) and therefore, they would not spare Heera Lal. The above utterances of miscreants as stated by Smt. Laungsree (P.W.5) clearly indicated that their main object was to murder Heera Lal and not to commit dacoity. It is also clear from the evidence on record that as many as 15-20 dacoits allegedly committed dacoity, but, they did not remove any valuable article except licensed gun of Aidal Singh deceased. Thus, it is clear from the evidence on record that neither the appellants intended to commit dacoity nor dacoity took place. But all the appellants were charged for the offence of dacoity with murder. The learned trial Court had also concluded that offence punishable under Section 396 I.P.C. could not be proved against the appellants, but he further held that the prosecution has established its case beyond all reasonable doubt and accordingly, convicted the appellants under Section 396 I.P.C. This finding of the trial Court is self contradictory.
22. The learned A.G.A. contended that according to Section 216 Cr.P.C. the charge may be amended at any stage of proceeding before the judgment is pronounced and according to Section 464 Cr.P.C. no findings, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission, or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby and that if the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge or in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. No doubt during trial, after examination of P.W.9, on 24-7-1980 the prosecution moved an application to frame charges Under Section 302 I.P.C. and 395/397 I.P.C. on the ground that the chief intention of accused was not to commit robbery, theft or extortion but to commit murder and it was subsequent to the murder that they removed certain property dishonestly. But the above application was rejected vide order dated 28-7-1980. The said order has become final as no revision was filed against it. During hearing of appeal before this Court no attempt was made to get the charge altered nor said order was assailed by the learned A.G.A. Moreover, amending or altering charge at this belated stage and after more than 20 years of the occurrence would amount to denial of fair trial to the appellants. As held by the Hon'ble Supreme Court in the case of Ranbir Yadav v. State of Bihar A.I.R. 1995 S.C. 1219, Section 216 Cr.P.C. empowers the Court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration and addition of the charge the Court is required to read and explain the same to the accused in accordance with Sub-section (2) thereof. It is further laid down under Sub-section (3) that if in the opinion of the Court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addition is such that the proceeding immediately with the trial is likely to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Section 217 of the Code provides that whenever a charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or to summon and examine with reference to such alteration or addition any witnesses who has already been examined unless the Court for reason to be recorded in writing consider that the desire to recall or re-examine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Besides, it permits the prosecutor and the accused to call any further witness whom the Court may think it to be material. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross-examine the witness already examined, as the case may be, and by affording them an opportunity' to call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, therefore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced. But no such contingency arose in this case.
23. At this stage the question of amending of altering charge or direction of fresh trial also does not arise as it would amount to denial of fair. In the case of Partap Singh v. State of Haryana 1991 S.C.C. (Crl) 699 Partap Singh and Prakashe accused were tried for murder of one Krishna and causing injury to one Nar Singh. The fact found before Hon'ble Supreme Court in above case, were that Prakash was assigned the substantive role and was charged under Section 302 I.P.C. for causing death of Krishna and under Section 326 I.P.C. for causing hurt to Nar Singh. Pratap Singh was charged with the aid of Section 34 I.P.C. for both the offences under Section 302 read with Section 34 and under Section 326 read with Section 34. The trial Court convicted both of them under Sees. 302 and 326 read with Section 34 I.P.C. On appeal the High Court acquitted Prakash but upheld the sentence and conviction of Pratap Singh. It was contended in the appeal before the Hon'ble Supreme Court that Prakash was confronted with evidence accusing him of the substantive charge under Sees. 302 I.P.C. and 326 I.P.C. and he has been acquitted by High Court whereas co-accused Pratap who was assigned liability Under Section 34 has been illegally convicted. Hon'ble Supreme Court reversed the order of High Court and held that it is obvious that on the date of charge there was no material with the prosecution to show that it was the appellant Pratap Singh who gave knife injuries to deceased Krishna and P.W. Nar Singh. Even otherwise, when police report under Section 173 Cr.P.C. which is the basis of the charge implicated the appellant vicariously with the aid of Section 34 I.P.C., it is difficult to rule out prejudice when at the trial evidence was led to show that he actually participated in the crime and inflicted injuries to the deceased and grievous hurt to P.W. Nar Singh. In any case, this cannot be certified as a fair trial. Accordingly, appellant Pratap Singh was given benefit of doubt and acquitted by the Supreme Court. If the facts of present case are scrutinized in the light of above judgment it comes out that the altering of charge under Section 302 I.P.C. against the appellants in no way can be certified as a fair trial as in the instant case, the F.I.R. allegation and the documents under Section 173 Cr.P.C. collected by the prosecution clearly indicate that the appellants allegedly committed dacoity with murder and on the basis of allegations in the F.I.R. and evidence collected during investigation they were charged under Section 396 I.P.C. But prosecution could not prove that dacoity took place and two deceased were murdered during commission of dacoity. The evidence no doubt show that the two deceased were murdered. But the appellant cannot be convicted under Section 302 I.P.C. merely on the basis of this proved fact as at the trial no evidence was led to show that they committed murdeer as it would be denial of fair trial.
24. Sri Tapal Ghosh, learned counsel for Ajanti appellant, however, contended that Ajanti appellant was neither resident of the village of prosecution witnesses, nor he was previously known to them. During investigation he claimed identification by moving an application. The learned Judicial Magistrate allowed the application, vide order dated 20-9-1979 and directed the S.H.O. P.S. Sikandararau to get the identification of appellant Ajanti conducted. But he was not put up for identification and this amounts prejudice to him. On the other hand, the learned A.G.A. contended that appellant Ajanti was 'Sarhu' of appellant Sukhpal and he was known to prosecution witnesses from before and therefore, there was no necessity for his identification.
25. Whether test identification is necessary or not it depends upon peculiar facts and circumstances of a particular case. As held by the Supreme Court in the case of Kanan v. State of Kerala (1979) 3 SCC 319 : AIR 1979 SC 1127 where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. The idea of holding test identification parade under Section 9 of Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no test identification parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in the Court.
26. However, it was held in the case of Suresh Chandra Bahri v. State of Bihar A.I.R. 1994 S.C. 2420 that there can be no dispute with regard to the principles as to the evidence relating to identification of a stranger accused involved in any crime. It is well settled that substantive evidence of the witness is his evidence in the Court but when the accused is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the Investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and ureasonable delay after the arrest of accused....But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of test identification parade.
27. In the light of above settled position of law it is to be considered whether Ajanti appellant was previously known to the prosecution witnesses.
28. In the F.I.R. it is mentioned that amongst the dacoits Sukhpal, Harpal and Ajanti S/o Ved Ram resident of Sikandarpur, P.S. Akbarabad and Munna Giri were recognised. The source of acquaintance of Ajanti appellant was not mentioned in the F.I.R. Bhagwant Singh (P.W.2) stated in his evidence that Sukhpal, Ajanti, Harpal and Munna Giri who were known to him from before were identified. He further stated that Ajanti appellant was resident of village Sikandarpur and was Sarhu of appellant Sukhpal. But in his cross examination he admitted that Sukhpal was not real Sarhu of Ajanti appellant. However, he stated that he had seen house of Ajanti, which was at a distance of 7Km. (14 miles). The exact relationship of Ajanti with the appellant Sukhpal has thus not been explained. Chandan Giri (P.W.3) simply stated that he was knowing the appellants including Ajanti from before. But the witness had not named Ajanti appellant before the I.O. In his statements under Section 161 Cr.P.C. he had described him as a relative of Sukhpal and Harpal of his village and resident of Sikandarpur. Though the witness has denied to have given such statement before the I.O. but the I.O. Sri Sardul Singh Uppal (P.W.7) had proved above statement (Ext. Kha-2). This clearly shows that Chandan Giri was not knowing Ajanti appellant by his name from before. Smt. Laungsree (P.W.5) also stated that she recognised the appellants including Ajanti whom she was knowing from before, but she has not disclosed source of acquaintance of Ajanti appellant. However, in her cross examination she stated that she had seen Ajanti several times coming in her village. She also admitted that she was observing parda in the village. Thus, it is unsafe to believe that Smt. Laungsree (P.W.5) was knowing Ajanti appellant from before.
29. As held above, it has not been established that Ajanti appellant was known to the prosecution witnesses from before and in these circumstances when he claimed identification the prosecution ought to have got test identification parade conducted and in the absence of such test identification parade, his identification by the witnesses for the first time in the Court was of no value.
30. Sri A.D. Giri, learned counsel for the appellant Munna Giri contended that admittedly sister of Munna Giri appellant was married with Chhuttan Giri, who is sister's son of Chandan Singh (P.W.3). Chhuttan Giri was residing in his Nanihal where his mother had got land and house. The above house was sold and now it was in possession of appellants Sukhpal and Harpal. That Chandan Giri (P.W.3) was claiming the said house of Chhuttan Giri. Father of Munna Giri was also involved in a case under Section 107/116 Cr.P.C. as opposite party against Chandan Giri (P.W.3) and therefore, he was falsely implicated on the instigation of Chandan Giri (P.W.3). It is admitted to Bhagwant (P.W.2) that Chhuttan Giri and Jamuna Giri had executed sale deed in respect of some abadi land in favour of Sukhpal regarding which sale deed was obtained by him and his brothers from Chandan Giri (P.W.3). In these circumstances, the possibility that Munna Giri was falsely implicated at the instigation of Chandan Giri (P.W.3) cannot be easily ruled out.
31. The enmity of prosecution witnesses with Sukhpal is admitted and his implication on account of enmity cannot also be easily ruled out.
32. From the above discussions and observations we are of the view that the prosecution utterly failed to establish the factum of dacoity in the house of Bhagwant Singh (P.W.2) in the night of occurrence and murder of two deceased during the commission of dacoity. It appears that two deceased were murdered in some other way which the prosecution did not disclose and in the absence of any other additional or alternative charge against the appellants they could not be convicted and sentenced under Section 396 I.P.C.
33. Thus, the appeals succeed. The Criminal Appeal No. 2310 of 1980 preferred by Harpal stands abated. Criminal Appeal No. 2311 of 1980 preferred by Sukhpal, Criminal Appeal No, 2234 of 1980 preferred by Munna Giri and Criminal Appeal No. 2243 of 1980 preferred by Ajanti are, accordingly, allowed. The conviction and sentence of appellants Sukhpal, Munna Giri and Ajanti are set aside and they are acquitted of the offence to which they stood charged with. The above appellants are on bail granted by this Court. Their bail bonds are cancelled and sureties are discharged. They need not surrender.