Judgment:
Vyas, J.
1. This appeal is directed against the judgment November 2,2002, passed by the Additional District & Sessions Judge, Fast Track, Laxmangarh, Alwar, whereby he convicted and sentenced accused-appellants Ghurelal, Chunchu @ Bhagwan Singh, Raghuveer, Kallu, Rajpal, Kuniya, Talebar and Samay Singh for the offence under Section 396, IPC, to life imprisonment and a fine of Rs. 1,000/- each, in default of payment of fine to further undergo six months rigorous imprisonment; accused Ghurelal, Chunchu @ Bhagwan Singh, Raghuveer, Kallu, Rajpal, Kuniya, Talebar and Samay Singh for the offence under Section 397, IPC, to Rigorous Imprisonment for seven years and a fine of Rs. 500/- each, in default of payment of fine to further undergo three months Rigorous Imprisonment; accused Ghurelal, Chunchu @ Bhagwan Singh, Raghuveer, Kallu, Rajpal, Kuniya, Talebar and Samay Singh for the offence under Section 395, IPC, to life imprisonment and a fine of Rs. 1,000/- each, in default of payment of fine to further undergo six months' Rigorous Imprisonment; and accused Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and Samay Singh under Sections 3/25 and 3/27 of the Arms Act to three years' Rigorous Imprisonment and a fine of Rs. 500/- each, in default of payment of fine to further undergo three months' Rigorous Imprisonment. All the sentences were directed to run concurrently.
2. In nutshell, the prosecution story is that on December 17, 1996, one Santosh Kumar-complainant lodged a written report at Police Station, Khedli, wherein it was alleged that in the intervening night of 16th & 17th December, 1996, he heard some noise on the roof of his house. On hearing the noise, he sent his peon Gopal Nepali to the roof. When Gopal Nepali opened the gate of the roof, the miscreants fired a shot on Gopal Nepali and entered into the house. He saw them in the light of the electricity. All the miscreants were young and dark complexioned and wearing Pant, Bushirt, Kurta and payjama. Miscreants closed complainant's wife and children in the bathroom. At that time, neighbourers also woke up. Some of the miscreants fired shot on Anita Yadav, Member of the Municipality; as a result of which she died on the spot. A Bank employee Yadav caught hold of one miscreant, but his companion gave beating to him and got the miscreant released from the clutches of the Bank employee. It was further stated in the complaint that when the miscreants were looting the house of the complainant, the entire incident was being witnessed by the police, but they ignored the incident and went away with the Jeep. After some time, the Police returned back. The culprits ran away in the presence of the Police. Chowkidar Gopal Nepali was taken to the hospital, where he was declared dead.
3. On receipt of the aforesaid report, FIR No. 240/96 for the offence under Sections 395, 396, 397 and 398, IPC, was registered at Police Station, Kherli (Alwar) and investigation was taken up. (4). During the course of investigation, the accused appellants were arrested. Raghuveer was arrested on arrested on December 19, 1996 and one Ambassador car was recovered at his instance. Raghuveer, Gurelal and Kallu were put to the identification parade. On December 24, 1996, co-accused Ramkishan (now deceased) was arrested and on his arrest, case for offence under Section 120B, IPC, was also added. On December 24, 1996, accused appellant Kuniya was arrested and on his information one silver glass and Rs. 1000/- in cash were recovered from him. On the information and at the instance of accused Kallu, a 12 bore gun, one silver Katori, one ear tops and one ear ring were recovered on December 29, 1996. On the information and at the instance of accused Raghuveer, one Kondhani of silver, 2 silver glasses, one silver Katori, one silver spoon and one torch were recovered., On the information furnished by Ghurelal, one golden ring, one ear 'jhala', one necklace, one llaychidani,. one spoon and one Kondhani were seized on December 30, 1996. On January 1, 1997, accused appellants Rajpal, Samay Singh and Chunchu @ Bhagwan Singh were arrested. One 12 bore gun, one worship platter, 4 silver glasses, one Katori and Rs. 2000/- in each were recovered from Chunchu @ Bhagwan. On the information furnished by accused Samay Singh, one 32 bore revolver, two empty cartridges, 4 live cartridges, 5 glasses, one Katori, one spoon and two coin of silver along with Rs. 8900/- in cash and two notes of Nepali currency were recovered. On the information of appellant Rajpal one 32 bore Katta, one empty cartridge, 5 live cartdriges, two golden bangles (Kangan), 3 silver button, one Katori of silver, one silver glass and Rs. 1000/- in cash were recovered. On January 2, 1997, on the information of accused Kuniya, one Scooter was recovered. Accused appellant Talebar was arrested on January 19, 1997 and on his information Rs. 2000/- in cash and one key ring of Ambassador car were recovered. Appellants Samay Singh, Chunchu and Rajpal were also put to the identification parade.
5. After completing the investigation, the Police filed the challan for the offence under Sections 395, 396, 397, 120B and 412, IPC, and under Sections 3/25 and 3/27 of the Arms Act. The charges were framed against the accused appellants. The accused denied the charges and claimed to be tried. The prosecution produced as many as 34 witnesses and exhibited 80 documents (Ex. P 1 to Ex. P 80) in support of its case. The accused appellants were examined under Section 313, Cr.P.C. They denied the correctness of the statements appearing against them. The pleaded that they have been falsely implicated.
6. The learned Trial Court, after hearing both the learned counsel for the parties and perusing the documents on record, convicted and sentenced the accused-appellants vide its judgment dated November 2, 2002, as indicated above.
7. Being aggrieved by the aforesaid judgment of the Trial Court dated November 2, 2002, the accused appellants have preferred the instant appeal.
8. Learned counsel for the appellants has contended that the findings of the Trial Court are against the facts and material on record. He further contended that the learned Trial Court has erred in law in not taking into consideration the proper appreciation of prosecution witnesses in its right perspective. Apart from that, there is serious discrepancy in the statements of the prosecution witnesses sofar as identification parade of the accused appellants as well as list of recovery of Articles are concerned. According to the learned counsel, this discrepancy goes to the root of the case, therefore, in this situation, the conviction of the accused appellants is bad and the accused appellants deserve to be acquitted by this Hon'ble Court.
9. On the other hand, PW 13 Santosh Jagwayan, who is complainant, has deposed that on 16th/17th December, 1996, at around 12.30-1.00 A.M., a dacoity has taken place in his house. At that time, he, his wife, two daughters Sandhya and Preeti, son-Sachin and Chowkidar Gopal were present in the house. He further deposed that at the time of the incident, his daughter- Preeti was studying. On hearing the noise of breaking the doors, she awakened us and told that the sound of breaking doors is coming from roof. We also heard the noise. Then we awakened Chowkidar Gopal Nepali and he was sent to the roof-top. Meanwhile, the dacoits had broken the doors. The dacoits fired the gun shot at Gopal, which hit him on the genital part of his body. Thereafter, all the dacoits came down from the roof. They were 10-12 in number. At that time, the electricity of the entire was on. On hearing our noise, our neighbours woke up. The dacoits fired at our neighbour Mrs. Anita Yadav also. Due to the terror of fire, the people went inside their houses. He along with his son Sachin slipped into the house of Anita Yadav. His wife, two daughters and younger son Gopal remained in his house. Then, the dacoits broke open the almirah and they pushed his wife and two daughters in the bathroom. Gopal Nepali came down from the roof. He was taken to the Hospital. The dacoits took away his 10-12-15 silver glasses, 12-13 silver bowls ('Katori'), a cordless telephone, one small set of diamond, golden earrings, Mangalsutra, about 25-30 coins of silver and the cash, amounting to Rupees fifty thousand, having 10-20 and hundred-rupee notes. He identified his items correctly. He also put his signatures on the fards Exs. P-22 to P-29 of identification proceedings. He also deposed that he identified the accused in Alwar Jail correctly. He claimed that he identified the accused persons twice. First time, he identified three dacoits and the second time, he identified five dacoits. It may be pointed out that while recording the statement of this witness, a note was put by the Trial Court that the Articles were produced before the Court in unsealed condition. Further, one more note was put by the Trial Court that one sealed packet, on which seal was put, but was invisible and there was no chit of paper on the seal, was produced before the Court. The Court Ordered to open the packet. The packet was containing two silver glasses (Articles 55 and 56) and one bowl of silver (Article 57). The witness also deposed that Articles 1 to 57 belonged to him.
10. In cross-examination, he deposed that neither he gave a list of the stolen Articles, nor their description was given in the First Information Report. But he gave the same to the Police along with the report. No identification mark of stolen Articles was mentioned in the list. Only names of Articles were mentioned. He further deposed that it is true that the aforesaid list is not available on record today. He also deposed that he is an income- tax payee. He carries out the business and used to keep cash-books etc. The packets of notes produced in the Court, the witness claimed that these packets belonged to him. He stated that he does not know the number of the notes. Apart from that, he stated the amount which was stolen in the dacoity, belonged to his wife. He also stated that he identified his Articles correctly before the Tehsildar. Lastly, he stated that in Alwar Jail, he had identified accused Rajpal correctly.
11. PW 12 Smt. Shashi Devi, who is wife of the complainant- Santosh Kumar, has deposed that about five years ago, a dacoity had taken place in her house. At that time, she along with her husband-Santosh, daughters and her son were present in the house. Her daughter was studying in the night. When she heard some noise of breaking the doors from the roof, she told to me and Smt. Shashi Devi, in turn, awakened Chowkidar Gopal Singh. Then the Chowkidar went upstairs. The dacoits were breaking the doors at the roof. They fired a shot at the Chowkidar. Thereafter, they came down to the 'Chowk' of her house. The dacoits were 10-12 in number. At that time, the switch of electricity of the rooms and the 'chowk' was on, therefore, we saw the dacoits. The dacoits were armed with gun 'Katta' and knife. The dacoits broke open the locks of the almirah. They closed Smt. Shashi and her daughters in the bathroom. Her husband and son slipped into the neighbour's house of Anita Yadav. The dacoits took away 10-15 silver glasses, 7 bowls of silver, a 'tagri' of silver, golden 'Jhumke' of ears, one set of diamond, 20-21 silver coins, 5-7 spoons of silver, one thali of silver and a sum of rupees fifty thousand, in the packets of ten, twenty, fifty and a hundred notes. She further deposed that she identified 3-3 accused twice in the Alwar Jail, which are Ex.P-3 and Ex.P-4. She also deposed that during the course of identification of Articles, she has identified the articles-15 glasses, 5-7 'katori', spoons, plate, 'tagri', golden 'jhumke' of ears, 21 coins of silver and packets of notes. She also put her signatures on the identificate fards, prepared vide Exs. P-22 to P-29. She also deposed that her husband Santosh Kumar also identified the stolen Articles. Apart from that, identification of the accused was done by her as well as by her husband.
12. In cross-examination, she deposed that Gopal Chowkidar has come himself from the roof. She had given the numbers of the dacoits as 8-10 in her police statement Ex.D-2, but why the number was not recorded by the police, is not know to her. She further deposed that she cannot say as to which of the accused broke open the almirah and who closed me in the bathroom. Thereafter, she indicated towards Samay Singh that he was having a gun in his hand. She identified the accused in two rounds. In the first round, she identified accused Ghurelal, Rajpal and Bhagwan Singh and, in the second round, to whom she identified, she was unable to reveal the names at the time' of giving the statement. She also stated that she had informed the Magistrate in the Alwar Jail that she had identified her Articles, as all the Articles were kept on the table.
13. PW 14 Preeti, who is aged 20 years, has deposed in her statement that at the time of the dacoity, she was studying. On hearing some noise of breaking the doors from the roof, she awakened her mother. Her mother also heard the noise and, thereafter, she awakened Chowkidar Gopal. He went to the roof to know about the noise. We made hue and cry. About 5-6 dacoits came down. We also heard the noise of gun fire. At that time, the electricity of the house was on. They pushed us in a bathroom. Since the electricity was on, therefore, we saw the dacoits. The dacoits broke open the almirahs of the house. After some time, her father opened the gate of the bathroom, then they came out. During the cross-examination, she pleaded ignorance as to which of the accused pushed her along with her mother in the bathroom.
14. PW 15 Sandhya, who is aged 22 years, has deposed in her statement before the Court that about five years ago, at around 12-1.00 a.m., a dacoity had taken place at her house. At that time, her younger sister Preeti was preparing for examination. She awakened us. The noise was coming from the roof. Gopal Bahadur Chowkidar was also got awakened and he was sent to the roof of the house. Thereafter, a gun fire was heard. We came out and raised hue and cry. At that time 5-6 dacoits had come down from the roof. The electricity was already on in the house. Thereafter, they pushed us in the bathroom. After some time, her father came and opened the gate of the bathroom, then they came out. In cross-examination, she stated that the dacoits have come to the down-stairs and they immediately pushed them in the bathroom and closed the door. She also deposed that when the dacoits had left the place of occurrence, her father came and opened the door of the bathroom and they came out.
15. PW 2 Kripa Dayal, who is husband of the deceased Smt. Anita Yadav and also an eye-witness of the occurrence as well as in injured too, has deposed that in the mid night of 16th December, 1996, he and his wife-Anita Yadav were sleeping. When they suddenly heard the sound of gun shots in the night, they opened the doors and saw in the electricity that three culprits were standing in their verandah. When we saw them, they came to us. His wife and he caught-hold the culprits. One of them, inflicted a blow with the butt of gun on his head. When his wife-Anita Yadav saw the blood oozing from his head, she left the culprit to whom she had earlier kept caught-hold. He further deposed that when they were bringing a culprit to the verendah then, one of the culprits fired a bullet towards her wife-Anita Yadav, which hit to his wife in her neck and she died instantaneously. Thereafter, when the culprits started to take their heels, he caught-hold of them, then they inflicted blows on his head with the butt of the gun, which resulted into his unconsciousness. He also deposed in his statement that in addition to giving beating, they also fired at the servant of Santosh. In Order to save their lives, Santosh and his son Sachin slipped into our house. In addition to firings and giving beatings, they made also 'loot- paat' in the house of Santosh. He also deposed that the culprits had also fired at the Police and, thereafter, by firing the gun, they ran away from the scene of the occurrence. He stated that he had gone to the Alwar Jail for identifying the accused twice. It may be pointed out here that the witness had identified all the accused who were produced for identification parade. He also stated that in the first time, he identified the accused Kallu, Ghurelal and Raghuveer. In the second time, he identified accused Bhagwan Singh and Rajpal. In the statement of this witness, a note was appended by the Trial Court that during the course of trial, the accused Ramkishan had expired. In the cross- examination, he stated that on hearing the gun shots, they awakened in the night. It was a moon-lit night. He stated that he had seen the culprit for five minutes, who had given him blow with butt of the gun. Then he ran away. He also stated on looking at the blood oozing from his head, his wife Anita Yadav had left the culprit, to whom she had kept caught-hold earlier. This witness was cross-examined at length, but, nothing could be elicited from his statement, which may discredit his testimony.
16. The aforesaid five witnesses, namely, PW 13 Santosh, PW 12 Smt. Shashi Devi, PW 14 Preeti, PW 15 Sandhya and PW 2 Kripa Dayal, were vigorously examined, but nothing came out from their statements, which may falsify the prosecution story or may help in drawing adverse inference against the aforesaid witnesses.
17. PW 20 Narendra Singh Kulhari, the Tehsildar, Kathumar has deposed that the proceedings of identification of the stolen Articles were conducted in his presence and under his supervision. Smt. Shashi Devi (P.W. 12) and Santosh Kumar (P.W. 13), accurately identified the stolen Articles as 15 silver glasses, 5-7 'katories', spoons, plates, 'tagri', Golden 'Jhumke' of ear and 21 coins of silver as well as packet of notes. According to this witness he mixed up some similar Articles with the stolen Articles and, thereafter, identification proceedings were conducted. He was also cross-examined at length but nothing could be elicited from his statement, which may draw adverse inference against the prosecution story.
18. PW 26 G.L. Sharma, Judicial Magistrate, who conducted the identification parade of the accused in the Alwar Jail has deposed that on December 23, 1996, he had conducted the identification parade of accused Raghuveer, Kallu and Ghurelal. He further deposed that Santosh, Smt. Shashi and Kripadayal were summoned for identifying the accused. Santosh has identified accused Raghuveer, Kallu and Ghurelal. Smt. Shashi has identified accused Raghuveer, Kallu and Ghurelal. Thereafter, Kripadayal Yadav was summoned and he identified accused Raghuveer, Kallu and Ghurelal. All the three identified the aforesaid accused correctly. He further deposed that on January 6, 1997, on the Order of the Chief Judicial Magistrate, Alwar, he also conducted the identificate parade of the accused. The witnesses-Santosh Kumar, Smt. Shashi and Kripadayal-appeared for identifying the accused. First of all. Santosh was called to identify the accused. He identified the accused Samay Singh and Bhawani Singh, but in place of accused Rajpal, he identified another accused Suraj. Smt. Shashi identified accused Samay Singh, Bhagwan Singh and Rajpal Singh accurately. Kripadayal identified the accused Samay Singh, Bhagwan Singh and Rajpal accurately. He also prepared memos Ex.P-3 and Ex.P-4 of the identification parade. It may be pointed out that the identification parade of accused Talever and Kunia was not held.
19. PW34 Laxman Gaur-Investigating Officer has deposed that on 17th December, 1996, he was posted as Circle Officer, Laxmangarh. This case was given to him for Investigation. During the course of investigation, he arrested the accused persons and on their informations and at their instance under Section 27 of the Evidence Act, he recovered stolen Articles He also recovered the alleged gun, revolver, pallets, scooter and an ambassador car used by the accused at the time of committing the dacoity. The Investigating Officer was cross-examined at length, but nothing came out from his statement which may enable us to draw an adverse inference against the prosecution case.
20. The injuries of Injured Kripa Dayal Yadav were examined vide Ex.P-5 (Injury Report) by a Board of two Doctors. They found, in all, eight injuries on his person. All the injuries were simple in nature and were caused by a blunt weapon. The duration of the injuries was within twelve hours.
21. PW21 Dr. Jitendra Bundel, who was Chairman of the Board, also conducted the Post Mortem Examination of the dead body of Smt. Anita Yadav. The Board gave the opinion that 'the cause of death is shock due to excessive haemorrhage from great vessels (that is carotid Artery & vein) and Injury to Trachea and oesophagus caused by Fire arm (Gun shot).' The injuries were ante-mortem in nature. The Post-Mortem Report (Ex.P-32) was prepared by him.
22. The Medical Board, headed by PW 2! Dr. Jitendra Bundel, also conducted the Post Mortem Examination of the dead body of Gopal Singh. The Board gave the opinion that 'mode of death is shock due to excessive bleeding from Rt. Femoral Artery caused by Fire Arm (Gun shot).' The injury was ante-mortem in nature.
23. The FSL has given the report of Articles to the effect that the examination of the barrels residue indicates that five submitted firearms had been fired. However, the definite time of their last fire could not be ascertained. On the basis of Stereo and Comparison Microscopic examination, it was opined that one 12-bore cartridge case has been fired from 12-bore SBBL gun. Two 12-bore cartridge cases have been fired from 12 bore SBBL gun. Two 32 cartridge cases have been fired from 32 revolver. Apart from that, it was mentioned that three 12-bore cartridges and nine 32 cartridges appears to be fireworthy ammunition. The Serologist gave his opinion that the blood stains of human origin and blood group 'O' were found on the Articles sent by the Police for chemical examination.
24. Learned counsel for the appellants contended that the prosecution story is absolutely false and the facts narrated in the FIR with regard to the incident took place in the presence of the police, if such allegation made by the complainant is true and correct then the whole prosecution story is put forward on suspicion and no reliance could be placed on such story. Learned counsel for the appellants further contended that in the instant case, looking to the facts and circumstances of the case, there is no possibility to connect the accused appellants with the crime and the prosecution agency has totally failed to establish the fact of recovery of the smaller items from each accused. He submitted that the looted Articles do not tally with the Articles recovered by the Police. That being the position, the accused appellants have falsely been implicated in the case and they deserve to be acquitted.
25. Learned counsel for the appellants further contended that the identification of the recovered Articles in the case has no sanctity in the eye of the law. The identification parade so effected on the accused is not proper and does not fulfil the norms of the identification parade. In such a situation, the conviction based against the accused appellants is bad in the eye of law as there is no iota of evidence to establish the fact that the appellants were kept 'Baparda' at the time of their arrest as well as at the time of taking them from Police Station to the Court and from Court to the Jail.
26. In support of his contention, learned counsel for the appellants has referred to the case of Wakil Singh and Others v. State of Bihar (AIR 1981 SC 1392), in which none of the witnesses gave the description of the dacoits in their statements or in oral evidence, nor gave any identification mark, therefore, their Lordships of the Supreme Court allowed the appeal of the accused. But, in the instant case, the main three witnesses, namely, Santosh Jagwayan, Smt. Shashi Jagwayan and Kripadayal Yadav identified the most of the accused correctly, who were produced for identification parade. Therefore, this authority is of no help to the learned counsel for the appellants. ,
27. In Satrughana @ Satrughana Parida and Others v. State of Orissa (1995 Supp (4) SCC 448), the prosecution has not advanced any reason for not holding the identification parade promptly. It was stated that where the fate of the accused persons hangs solely on the identification by the witnesses, who claim to have seen them almost 1-1/2 months prior to the date of identification, it is the duty of the prosecution to state why the identification parade could not be arranged immediately after the arrest of the accused and without loss of time. Therefore, their Lordships of the Supreme Court allowed the appeal. But, in the instant case, after the arrest of the accused persons, the identification was parade was conducted immediately on 23.12.97 and 6.1.97 respectively. Not only that, the accused-appellants, in the instant case, committed double murder while committing dacoity, therefore, this authority is of no help to the learned counsel for the appellants.
28. In State of Rajasthan v. Khuma (1998 (2) R.C.C. 599), while conducting the identification proceedings of the Articles, similar Articles were not mixed, whereas, in the instant case, PW 20 Narendra Singh Kulhari, Tehsildar, has categorically stated in his statement before the Court that after mixing the similar Articles with the stolen Articles, the entire Articles were put on the table and the witnesses identified their items correctly. The prosecution has taken all necessary precautions to ensure the fair identification test of the Articles. Apart from that, before conducting identification proceedings, proper procedure was followed by him. Therefore, this authority also is of no help to the learned counsel for the appellants.
29. Kanhai Mishra @ Kanhaiya Misar v. State of Bihar (JT 2001 (3) SC 191), was a case pertaining to laches on the part of the prosecuting agency in conducting the investigation and trial. But, in the instant case, there was no laches on the part of the prosecuting agency. The Investigating Officer conducted the investigation in its right perspective and there was no delay in conducting the investigation in the instant case. Therefore, this authority is also of no help to the learned counsel for the appellants.
30. In Jassa Singh & Others v. State of Haryana [(2002) 2 SCC 481 ], the incident happened in an agricultural field, where so many other persons were likely to be present, only two interested witnesses were examined to prove the. first incident. According to these two witnesses, all the ten appellants, who came to the place of occurrence were armed with various deadly weapons. These witnesses also deposed that two accused-appellants B and S fired shorts at the deceased and all other eight accused persons started causing injuries to the deceased with gandasis. According to the doctor, the deceased had sustained one injury alleged to have been caused by a gandasi. It was, therefore, clear that the evidence of the two eyewitness that all the eight accused were armed with gandasis and they caused a series of injuries on the deceased, is belied by the medical evidence. It was held by their Lordships of the Supreme Court that the presence of the accused was doubtful, therefore, the benefit of doubt was given. But, in the instant case, the accused produced for identification parade, were correctly identified by the eye witnesses. Therefore, this authority is of no assistance or help to the learned counsel for the appellants.
31. In Anter Singh v. State of Rajasthan (2004 Cri.L.J. 1380), there were several circumstances. It was not indicated in the so called information recorded by the Investigating Officer that the gun to which reference was allegedly made was the weapon of assault, the empty cartridges and the bullets were not deposited with the Ballistic Expert. Therefore, it was held by their-Lord ships of the Supreme Court that the discrepancies and shortcomings in prosecution evidence considerable corrode credibility of the prosecution version. In the instant case, a clear description of gun and other arms were given in the First Information Report. Apart from that, empty cartridges and the bullets were sent to the Ballistic Expert promptly and the Ballistic Report was also received positively, so the Trial Court convicted and sentenced the accused appellants on one of the counts of positive Ballistic Report. Therefore, this authority is also of no help to the learned counsel for the appellants.
32. In Suresh v. State of Uttar Pradesh 11990 (Supp) SCC 138, the prosecution case was that on the alleged night of occurrence, i.e., December 7/8, 1977, at about 10-11 p.m. dacoits numbering about 8 to 10 entered into the house of Bhikhraj by breaking open the doors of his kotha. The dacoits also looted the property from the other three neighbouring houses. The list of Articles was also not brought on record by the evidence of the witnesses examined in the case, nor anything was recovered from the appellant. Even the complainant has not stated the nature of Articles in respect of which the dacoity was committed. This essential ingredient of the offence of dacoity was not proved, therefore, their Lordships of the Supreme Court set aside the conviction and sentence of the accused. But, here, in the instant case, the dacoits committed dacoity at one house. They killed two persons by gun shots. Though the list of Articles was not given by the complainant- Santosh Kumar with the complaint, but the stolen Articles were recovered from the possession and at the instance of the accused appellants. The complainant-Santosh Kumar has also stated the nature of the Articles stolen from his house. However, identification parade with regard to accused Talever and Kunia was not held. Therefore, in this view of the matter, this authority is of no help to the learned counsel for the appellants.
33. Ram Murti v. State of Haryana (AIR 1870 SC 1020), was a case pertaining to assessment of age of the prosecutrix with regard to school certificate as the offence was committed under Sections 366, 366A and 376, IPC. Since the certificate was not exhibited, therefore, their Lordships of the Supreme Court held that it is clear that in the High Court, it was not appreciated that this unproved and unexhibited school certificate could not be treated as evidence in the case. Nor was it noticed that according to this document Sattnam Kaur's date of birth was November 5, 1948. The question of age of the prosecutrix in cases under Sections 366 and 376, IPC, is always of importance. It was particularly so in this case because, according to the medical evidence, the prosecutrix was found to have been used to sexual intercourse and the rupture of the hymen was old. The High Court having acquitted the appellant for an offence under Section 376, IPC, because the prosecutrix appeared to be a consenting party not only to the impugned acts of sexual intercouse in question but even on earlier occasions, it was, in our opinion, a fit case in which that Court should have examined the question of her age more closely. On the evidence on the record, we are far from satisfied that there is any trustworthy evidence on record on which the conclusion that Satnam Kaur, prosecutrix, was under 18 years of age in March, 1965 can safely be founded. But, the instant case was pertaining to the offence under Sections 395, 396 and 397 and Sections 3/25 and 3/27 of the Arms Act, therefore, this authority is also of no help or assistance to the learned counsel for the appellants.
34. Learned Public Prosecutor has argued the matter at length and controverted the arguments advanced by the learned counsel counsel for the appellants. He supported the observations made by the learned Trial Court in the impugned judgment and contended that the prosecution has established its case beyond all reasonable doubts. Looking to the facts and circumstances of the present case, it is well established that the accused appellants have committed dacoity and have fired gun shots, which resulted into the. death of the two persons instantaneously. Recoveries of stolen Articles have also been made from them. Apart from that, it is submitted that there is no error, infirmity or illegality in the impugned judgment of the Trial Court, so the Order of conviction and sentence passed against the accused appellants should be upheld, as they have been rightly convicted and sentenced by the learned Trial Court.
35. Learned Public Prosecutor has referred to the case of Bhagwan Singh v. State of M.P. (AIR 2002 SC 1621), in which against the acquittal of the accused, appeal was preferred in the High Court on the ground that the accused persons were on inimical terms with the complainant party and they came on the spot with some deadly weapons and attacked the complainant party, in which three persons were killed, it was held that they shared common object. In the instant case also, the accused came armed with deadly weapons. They fired gun shots, which resulted into the death of the two persons on spot. But the common intention cannot be attributed to all the accused persons.
36. He also referred to the case of Ram Nath Mahto v. State of Bihar (1996 Cri. L.J. 3585), in which the prosecution recognized, the accused during the identification parade. However, before the Trial Court, they denied to recognise the accused. Then it was held by their Lordships of the Supreme Court that the 'oral testimony of the Magistrate regarding successful identification of accused would constitute substantive piece of evidence. The conviction on the basis of identification was held to be proper.
37. In State of U.P. v. Anil Singh (AIR 1988 SC 1998), in appeal against the acquittal, theSupreme Court observed that in the great majority of cases, the prosecution version isrejected either for want of corroboration by independent witnesses, or for somefalsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifference attitude of the public in the investigation of crimes could also be pointed out.The public are generally reluctant to come forward to depose before the Court. It is,therefore, not correct to reject the prosecution version only on ground that all witnesses to occurrence have not been examined. It is also not proper to reject the casefor want of corroboration by independent witnesses if the case made out is otherwisetrue and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remembers that there is a tendency amongstwitnesses in our country to back up a good case by false or exaggerated version. It isalso embroidery to prosecution story, perhaps for the fear of being disbelieved. Butthat is no ground to throw the case overboard, if true, in the main. If there is a ring oftruth in the main, the case should not be rejected. It is the duty of the Court to cull outthe nuggets of truth from the evidence unless there is reason to believe that theinconsistencies of falsehood are so glaring as utterly to destory confidence in thewitnesses. It is necessary to remember that a Judge does not preside over a criminaltrial merely to see that no innocent man is punished. A Judge also presides to see thata guilty man does not escape. One is as important as the other. Both are public dutiesowhich the Judge has to perform.
38. We have heard learned counsel for the parties at length and perused the:authorities cited by both the parties at bar. We have also scanned the matter carefullyand gone through the material available on record. .
39. Nothing has been elicited in the cross-examination to discredit the testimonies of PW 13 Santosh Kumar, PW 12 Smt. Sashi Devi, PW 14 Preeti and PW2. Kripa Dayal Yadav. Their statements find corroboration from the FIR and the statements recorded in the Court. In our view, they are creditworthy witnesses. On reappreciation of the evidence, we find the statements of PW 13, PW 12, PW 14 and PW 2, who are the witnesses of the occurrence, creditworthy.
40. It may be mentioned that no identification parade with regard to accused Talevar and Kunia was held by the Police. Not only this, even the recovery from these accused persons has not been proved by the prosecution. Therefore, in that situation, the prosecution has failed to prove its case against accused Talevar and Kunia beyond reasonable doubt.
41. In view of the aforesaid facts and circumstances discussed above, we are of the opinion that the role of accused Talevar and Kunia appears to be doubtful and they deserve to be given the benefit of doubt. The remaining accused appellants deserve to be convicted and sentenced as Ordered by the learned Trial Court.
42. In the result, the appeal is allowed in part. The convictions* and sentences awarded to accused appellants Talevar and Kunia under Sections 395, 396 arid 397; IPC, are set aside. They are on bail. They need not surrender to their bail bonds. Their bail bonds stand cancelled.
43. The convictions and sentences recorded against the remaining accusedappellants, namely, Ghurelal, Chunchu @ Bhagwan Singh, Raghuveer, Kallu, Rajpal and Samay Singh under Sections 395, 396, and 397, IPC and Sections 3/25 and 3/27 of the Arms Act are maintained. The judgment of the Trial Court is modified to the extent indicated above.