Satya Prakash Pathak, J.
1. Appellants have filed this appeal under Section 374(2), Cr. P. C. against the judgment and order dated 19-1-2004 passed by learned Addl. District & Sessions Judge (Fast Track) Sri Ganganagar in Sessions Case No. 34/2003, whereby the appellants have been convicted and sentenced as under :
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Name of accused Offence Under Section Punishment
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Sucha Singh 341, I.P.C. One months simple imprisonment.
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323/34, I. P. Six months' rigorous imprisonment
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394, I. P. C. Seven years' rigorous imprisonment with fine
of Rs. 500/-, in default of payment to further
undergo three months' rigorous imprisonment
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325, I. P. C. Three years' rigorous imprisonment with fine
of Rs. 500/-, in default of payment to further
undergo three months' rigorous imprisonment
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Desh Raj & 341, I. P. C. One months' rigorous imprisonment
Narayan Singh
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323/34, I.P.C. Six months rigorous imprisonment
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394, I. P. C. Seven years' rigorous imprisonment with fine
of Rs. 500/-, in default of payment to further
undergo three months' rigorous imprisonment
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325/34, I.P.C. Three years rigorous imprisonment with fine of
Rs. 500/-, in default of payment to further
undergo three months' rigorous imprisonment.
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2. Briefly stated, the relevant facts of the case are that on 9-12-2000 at 8 a.m. Ex. P/ 2 Parcha Bayan of complainant injured PW5 Nandram was recorded by Sub-Inspector Santlal while the complainant was under treatment at Government Hospital, Sadul Sahar to the effect that he was serving in the office of the Superintendent of Police, Sri Ganganagar as Constable and after office hours he had gone to meet his niece at Tantia Hospital, Ganganagar and from there on a motorcycle started for his village Karadwala at 6.30 p.m. At 7.30 p.m. when reached on a pucca road between Takhathazara Gurudwara and Sadul Sahar, a person signaled him to stop and as he stopped the motorcycle, two persons came from dark. Out of those two persons, one was having an axe with him. It was further stated in the statement that the other person out of those two, put off his helmet and that gave reason to scuffle in between them. The person having axe in his hand then gave an axe blow on his head and thereafter all the three persons dragged him towards bushes and there also gave him beatings and inflicted blows by an axe, fists and legs and after that thinking that he had died, one gold Kada (bangle) worn by him in his right hand, one Ricoh wrist watch, one purse containing Rs. 1100/ -, Identity card of the department and one driving licence took away and riding on his motorcycle went towards Path Berial. Thereafter, a jeep came from Ganganagar side and he getting it stopped reached to the Police Station but as he had received number of injuries and the head was bleeding, he was first admitted in the hospital and during treatment he became unconscious. It was also stated that those three persons were of between 25 to 30 years of age.
3. On the basis of aforesaid Parcha Bayan of complainant Nandram, Ex. P/26 First Information Report No. 272/2000 was registered on 9-12-2000 against three unknown persons and investigation started. During investigation, injured Nandram was got medically examined, site was inspected and site map & inspection note was prepared. From the place of incident, blood smeared and control soil was collected and the bloodstained shirt of injured Nandram was taken in possession by the police and thereafter the same were sealed. The motorcycle was also seized and the statements of witnesses were recorded. Accused Sucha Singh, Deshraj and Narayan Singh were arrested after getting production warrants from Raisinghnagar and Ganganagar prisons.
4. As per the information of accused Sucha Singh, one Gold bangle, on the information of Deshraj one Richo watch and on the information of Narayan Singh one helmet was recovered and site inspection memos were prepared. The identification parade of accused persons was conducted by Chief Judicial Magistrate, Sri Ganganagar in the presence of injured Nandram and the identification proceedings in respect of articles recovered was held by Tehsildar. The recovered control soil, blood-smeared soil and the shirt were sent to the Forensic Science Laboratory for examination and thereafter on completion of investigation challan under Section 307, 341, 325, 392 and 394 read with Section 34, I.P.C. against accused persons was filed in the Court of learned Judicial Magistrate, Sadul Sahar. The matter being triable by the Court of Session was committed to the Court of Session and came for disposal to the Court of Addl. District & Sessions Judge (Fast Track), Sri Ganganagar, who after hearing the parties on framing of charge, framed charges against them under Sections 341, 323, 342, 307 or in the alternative under Sees. 307/34, 325, 394 read with Section 34, I.P.C. The charges were read over to the accused but they denied the same and claimed trial.
5. In its evidence, prosecution examined as many as 12 witnesses and produced 43 documents. Statements of accused persons were recorded under Section 313, Cr.P.C. in which they stated that they were arrested in the police station after calling them there. They also stated that their photos were taken in the police station and in the Court their faces were not covered and they were shown to Nandram also when they went to the Court from' police station. They stated they had neither committed any offence nor anything was recovered at their instance and that they had not given any information at the time of recovery but the police on its own had recorded information and obtained their signature on so many papers but what was written in those papers was not conveyed to them. According to them, a false case was foisted against them. Neither any witness in defence was produced nor they. wished to produce any. In documentary evidence, Ex. D/l to D/4 were filed.
6. The learned Addl. Sessions Judge, after hearing the parties, came to the conclusion that offence under Sections 307 and 342 of the IPC was not proved against the accused as to fracture was found on account of the head injury received by Nandram and noticed that the said injury according to the medical report was shown to be caused by blunt weapon. It was observed that had the accused intended to kill injured Nandram, they could have inflicted more injuries by the sharp side of the weapon to Nandram but causing only one injury on the head by the blunt side shows that the object of accused persons was to snatch money, wrist watch and the gold Kada etc. and for that they had beaten him and as the offence was committed on a way by stopping Nandram within a short span, as such offence under Section 342, IPC was also not made out against them. The learned Judge, vide his judgment and order dated 19-1-2004 has, however, convicted and sentenced the accused-appellants as indicated above.
7. Heard learned counsel for the accused-appellants as well as the learned Public Prosecutor and scrutinized the material available on record.
8. It was contended by the learned counsel for the appellant that in the present case after long lapse of time the test identification parade was held, therefore, it was not possible for PW5 Nandram to have identified the accused persons. It was also contended that no description of the culprits was given in the Parcha Bayan Ex. P/12 and also there was no mention of the fact that the accused appellants were seen in the light of the truck. The learned counsel submitted that it was only mentioned in the Parcha Bayan Ex. P/12 that the accused were between 25 and 30 years of age.
9. On the other hand, learned Public Prosecutor submitted that it was mentioned in Ex. P/12 that PW5 Nandram identified the persons who inflicted injuries to him and he would identify when they would be brought before him.
10. I have considered the above submissions made before me.
11. In the instant case, the incident as per the Parcha Bayan Ex.P/12 is alleged to have taken place on 8-12-2000. It was month of December and the incident had taken place after 7.30, p.m. The accused persons; namely, Sucha Singh, Desh Raj and Narayan Singh were arrested through memos Exs.P/27, P/28 and P/29 respectively A11 the three accused were arrested in the month of April, 2003 after obtaining production warrant as they were in jail. Accused Sucha Singh and Desh Raj were arrested on 5-4-2003 whereas accused Narayan Singh was arrested on 6-4-2003. Thus, it appears that the accused persons were arrested after nearly two years and four months of the incident. Their identification test was conducted by PW 11 Shri Yogendra Purohit. He has stated that on 9-4-2003 while posted as Addl. Chief Judicial Magistrate, Sri Ganganagar, he conducted the identification test on the police requisition submitted by PW9 Shri Tarsem Ram. He has stated that Ex.P/33, a requisition was submitted for identification of accused-appellants by PW9 Tarsem Ram on 9-4-2003 and on the back of the police requisition the test identification parade was fixed but on that day test parade could not take place then it was fixed on 19-4-2003 in the District Jail at about 5 p.m. He has stated that test identification memos Exs. P/16, P/17 and P/18 were prepared by him in relation to accused Sucha Singh, Deshraj and Narayan Singh. In the cross-examination he has stated that accused had told him that in the Police station their photographs were taken. Whatever accused stated, he made a mention in column No. 10 of Ex.P/16 to P/18. Exs. D/2, D/3 and D/4 are the remand sheets. By these remand sheets there appear no instructions to keep the accused Baparda. P.W.9 Tarsem Ram conducted investigation in the matter. He has admitted in his cross-examination that in the remand forms Exs.D/2, D/3 and D/4 there is no note available to the effect that the accused were required to be kept Baparda. He has also admitted this fact that in the remand form it was not mentioned that the accused were kept Baparda and produced before the Magistrate Baparda. In the cross-examination, he has also stated that all the accused were sent to judicial custody on 8-4-2003 and before they were sent to judicial custody, the recovery was effected on the basis of their disclosure statements. The matter regarding disclosure statement made by the accused persons and the recovery made in pursuance of the disclosure statement will be discussed at appropriate place in this judgment.
12. In view of above factual aspect, as discussed hereinabove, it appears that incident is of 2000, accused were arrested in the month of April, 2003 and their test identification was done as per the statement of PW11 Shri Yogendra Purohit on 19-4-2003. This shows a gap of more than 2 years and 3 months.
13. In the light of above lapse of time, it is to be seen now as to whether PW5 Nandram has correctly identified and he would remember the faces of the accused persons after such a long lapse of time when the incident is said to have completed within few minutes?
14. Ex.P/12, the Parcha Bayan does not give description as to what was the complexion of the accused persons, what their height was or built up and the faces etc. Ex. D/1 is the police statement of PW5. In that police statement also it has not been mentioned that he could identify the accused persons when brought before him. PW5 is injured and through Parcha Bayan Ex.P/12, First Information Report Ex.P/26 was registered. PW5 Nandram, in his Court. statement has stated that on 8-12-2000 he was employed as FC in S.P. Office, Sri Ganganagar and on that day he had gone to meet his niece who was admitted in Tantia Hospital and while coming on motorcycle from hospital at about 7.30 p.m. when he reached at Pucca Road .between Takhathazara Gurudwara and Sadul Sahar, a person gave him signal to stop and he stopped the motorcycle and thereafter two persons suddenly came from the dark. Out of those two persons, one was having an axe in his hand and the other person had removed his helmet. The person who was having art axe in his hand, gave axe blow on his head. He has further stated that scuffle took place at that time as one of the persons tried to remove his helmet and he saw the faces of accused in the headlight of a truck which was passing through the road. He has also stated that he was dragged in the bushes. The accused then took away his purse, wrist watch and a gold bangle which was worn on his right hand. The witness had identified the accused persons in the Court. It is relevant to mention here that in Parcha Bayan Ex.P/12 there is no mention of this important fact that in the headlight of a truck the faces of the accused were seen Injured PW5 Nandram is in police employment and he knows the pros and cons of a statement. He has stated that though he has given statement to that effect while his Parcha Bayan was recorded but he does not know as to why that fact was not mentioned in the Parcha Bayan. In the cross-examination he has admitted that the same fact was missing in his police statement Ex.D/1. The rest of the cross-examination and the statement is not relevant for the purpose of identification of the accused persons. The important aspect is that in Ex.P/12 there is no description of the accused persons as to what was their built up and complexion. There is no mention of the headlight of a truck in which the faces of accused were seen. The test identification parade was held after two years and four months from the time of incident. Thus, in my opinion, when the accused we're arrested and their test identification was done, there had been no instructions to keep them Baparda and further in the remand forms Ex.D/2 to D/4 there is no mention that the accused was kept Baparda then it becomes rather doubtful that as to whether the injured in dark was able to see the faces of the accused who are subsequently said to have been identified.
15. In the case of Wakil Singh v. State of Bihar, : 1981CriLJ1014 , the Hon'ble Apex Court has observed in Para 2 as under :
'In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a their colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial Court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial Court. The High Court however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. Parade about 3'/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness.'
In the above case, there was only a single testimony and the test identification parade was held after a lapse of three months, therefore, the accused in absence of trustworthy evidence were acquitted of the charge leveled against them.
16. In the case of Delhi Administration v. Bal Krishan, : 1972CriLJ1 it has been observed by the Hon'ble Apex Court regarding appreciation of evidence (Para 6) :
'Indeed it cannot be laid down as a proposition of law that after the lapse of a long period, witnesses would, in no case, be able to identify the dacoits they had seen in the course of a dacoity committed during the night. However (he Courts will have to be extremely cautious when such evidence is before them. According to the learned Judge, it was a dark night and there was no sufficient light. The estimate of the witnesses that looting was going on for more than half an hour was exaggerated because the actual operation could not have taken more, than a few minutes. The very fact that the inmates of the other two rooms in the same house had not come out to resist or prevent the dacoity would indicate that the operation was swift. Moreover, it was elicited in the cross-examination of witnesses that the accused had been brought to their house during the course of investigation.
In the above case, the accused stated at the time of identification test that they were shown to the witnesses.
17. In the case of Hari Nath v. State of U.P., : 1988CriLJ422 , it has been observed that the conduct of an identification parade belongs to the realm and is a part of the investigation. The evidence of test identification is admissible under Section 9, Evidence Act. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is an unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test'. The test identification parade in the case was held after 4 months.
18. In view of the guidelines regarding appreciation of evidence in the matter of test identification parade, the Hon'ble Supreme Court has clearly observed that though there is no proposition of law like that that a test identification parade if it is delayed, it cannot be relied upon but what is required is that in such matters the Courts are required to scrutinize the evidence cautiously. It has also been observed by the Apex Court that it could be a reason which may create doubt. In the instant case, the evidence regarding keeping the accused persons Baparda before test identification of accused is missing as admitted by PW9 Tarsem Ram. Further, there is no description of the faces of the accused, their height etc. then it is difficult to presume that PW5 was having an opportunity to correctly remember the faces of the accused particularly in the circumstance when it was dark and there was no light. PW5 injured Nandram though has stated in his statement that he could see the faces of the accused persons in the headlight of a truck passing through the road, this important piece of statement is missing in his Parcha Bayan Ex.P/12 as well as in his police statement Ex.D/l.
19. In view of above discussion, I have no hesitation to reach to a conclusion that in the instant case the injured was not in a position to identify the accused persons and on the basis of Ex.P/16 to P/19 - the test identification memos, it cannot be held that the accused could see and remembered the faces as the actual incident could not have taken more than a minute. It is also relevant to mention here that PW5 has admitted in the cross-examination that photos of accused were also flashed in the local newspapers. The findings, thus, arrived at by the learned trial Court that the injured PW5 had an opportunity to see the faces of the accused in the headlight of the truck, appears to be misconceived and not based on the sound principles regarding appreciation of evidence.
20. The next question now is as to whether on the basis of disclosure statement made by the accused and the recoveries made, can accused persons be connected with the charges framed against them.
21. It has been the contention of the learned counsel for the appellants that the accused persons have been falsely involved in the case. It has also been contended that had there been any intention of robbing the injured then there was no reason why to have left the motorcycle somewhere else. The learned counsel for appellants also contended that the recovered articles on the basis of disclosure statements were never produced in the Court and further after having remained in long custody of the police, the disclosure statements were prepared by the police, therefore, accused cannot be connected with the crime on the basis of alleged recovery. On the other hand, the learned Public Prosecutor has submitted that PW8 Bal Ram Jhorad, Tehsildar is the witness in whose presence the recovered articles were .identified by the injured, therefore, the prosecution has proved the recovery in the present case from the accused-appellants.
22. I have considered the above submissions made before me. In the instant case, PW2 Saheb Ram and PW4 Harphool Singh are the witnesses in relation to the articles recovered on the basis of disclosure statements made by the accused. PW2 Saheb Ram has stated that no recovery was made in his presence of the wristwatch and the helmet. He has been declared hostile. PW4 Harphool Singh has also not supported the prosecution version. PW8 Bal Ram has stated that on 6-5-2003 he was posted as Tehsildar and Executive Magistrate, Sadul Sahar and on that day on police requisition at about 1 : 30 p.m. a gold bangle recovered at the instance of accused Sucha Singh was brought before him and he conducted the test identification of the articles. He has further stated that injured had correctly identified the gold bangle and on that day the injured had also correctly identified his watch. In the cross-examination, he has stated that he does not know as to whether there was any mark of identification on the articles. In the Court, he has admitted that the articles were not presented. He has proved the test identification memos regarding watch, gold bangle and helmet. It does not appear from his statement that similar articles were mixed with the recovered articles. The witnesses of recovery have turned hostile and they have not supported the prosecution version. Only the evidence of PW9 Tarsem Ram and police witnesses remained.
23. Now, it is to be seen as to what is the position of the disclosure statements.
24. Accused Sucha Singh was arrested through arrest memo Ex.P/27 on 5-4-2003 at about 11.30 a.m. he has made the disclosure statement Ex.P/32 after three days at 11.30 a.m., and recovery memo Ex.P/6 was prepared on 8-4-2003 at about 12.40 a.m. The (dependent witnesses of the recovery PW2 Saheb Ram and PW4 Harphool Singh have been declared hostile and they have not supported the prosecution case. The recovery has been effected as mentioned in Ex.P/6 that accused took the police party to his house and from a room where a trunk lying there the recovery was made.
25. Accused Deshraj was arrested through memo Ex.P/28. On 5-4-2003 at about 11.45 p.m and his disclosure statement is Ex.P/30 dated 7-4-2003 at about 3.30 p.m. and recovery was made on the basis of disclosure statement through memo Ex.P/8 on 8-4-2003. Wrist watch is said to have been recovered from his house. The witnesses of recovery Saheb Ram and Harphool Singh have not supported the version of the prosecution.
26. Accused Narayan Singh was arrested through Arrest Memo Ex.P/29 on 8-4-200'3 at about 2.40 p.m. The witnesses of recovery have turned hostile. The recovery was effected from the house of the accused. PW9 Tarsem Ram, the investigating officer, when asked questions in the cross-examination, he has stated that at the time of recovery of one gold bangle, Sucha Singh's mother was there, at the time of recovery from Deshraj members of family were there, and when recovery was effected from Narayan Singh no one was there. It also appears that at the places from where the recoveries said to have been made, no investigation has been done to the effect that the houses, from where the recoveries were made, were of the accused persons or not. The accused in their statements under Section 313, Cr.P.C. denied the aspect of having made any disclosure statement and further stated that they were shown to the complainant and their photographs were also taken and this aspect of the matter to some extent gets confirmation when cross-examination of PW6 Nandram is seen. At page 5, he has stated that this is correct that in a news-paper photos of the accused persons appeared. PW9 Tarsem Ram though has denied about showing the articles recovered prior to conducting test identification so also the accused persons but in view of the evidence which has come on record, there appears serious doubt about the correctness of the prosecution version in relation, to the accused appellants that they were neither shown to PW5 nor the recovered articles were shown before conducting test identification of articles and the accused. The articles alleged to have been recovered are commonly used and are easily available like bangle and helmet.
27. In view of above discussion that recoveries in the present case have been made after long lapse of time as the incident took place in 2000 and the recoveries were made in the year 2003 and the witnesses of recovery have turned hostile, I do not find it safe to confirm the conviction recorded by the trial Court of the accused appellants on the basis of identification of the accused and recoveries made on the basis of disclosure statements.
28. The other evidence led by the prosecution is not required to be discussed for the reason that since the evidence led by the prosecution in relation to identification test and in relation to disclosure statements made by the accused have not been found reliable. Therefore, the findings recorded by the learned trial Court holding the accused-appellants guilty of the charges framed against them is liable to be set aside.
29. In the result, the appeal is allowed and the judgment of conviction and order of sentence dated 19-1-2004 passed by learned Addl. District and Sessions Judge (Fast Track) Sri Ganganagar in Sessions Case No. 34/2003 is hereby set aside.
30. Accused Desh Ram and Narayan Singh are on bail under the order of this Court. They need not surrender their bail bonds. Their bail bonds stand cancelled.
31. Accused Sucha Singh is in jail. He be set at liberty if not required in any other case.