R.N. Sharma, J.
1. This is an appeal by the State of Uttar Pradesh against the judgment of the learned Assistant Sessions Judge, Hardoi, acquitting the respondents, Neel Kanth and Drigpal of the charges under Sections 399 and 402 Indian Penal Code.
2. Briefly stated the prosecution story was as follows: Rajendra Prasad Singh. Station Officer of Police Station Atrauli, was going in connection with the investigation of a murder case and when he reached near village Godenra he received information that the gang of Munnu Lal would assemble at Behta Bridge in the night for committing dacoity at the house of Rameshwar Dayal of village Mahmoodpur. Rajendra Prasad Singh went to Police Station Sandila and communicated this information to Raghubir Singh, Station Officer of that place. An entry of this information was made in the general diary. The station officer of Sandila sent two constables to village Mahmoodpur for keeping guard at the house of Rameshwar Dayal and he himself along with Rajendra Prasad Singh and other police personnel proceeded towards Behta Bridge. The police party collected some non-official witnesses also and went to a grove near Behta Bridge. Necessary instructions were given to all the officials and non-official members of the party and four groups were formed, one of which was under the leadership of Rajendra Prasad Singh At about midnight, being the night between the 12th and the 13th of October. 1963, the dacoits began coming. They sat on the Behta Bridge and began to talk among themselves. They were armed with fire-arms and lathis etc. and were 15 or 16 in number. From their talk it became evident that the gang which had assembled, was of dacoits and they had made preparations for committing dacoity at the house of Rameshwar Dayal. Rajendra Pd. Singh fired his very light pistol and according to the instructions previously given all the four groups rushed towards the dacoits. A shot was fired by the dacoits but it did not hit anyone in the police party. In retaliation Raghubir Singh fired his gun. The leader of the gang Munnu Lal was hit and died at the spot. The present respondents. Neel Kanth and Drigpal were arrested at the spot, while Maiku ran away but he was identified by the raiding party On search of the persons of Drigpal and Neel Kanth, a country-made pistol and five live cartridges were recovered from the possession of Neel Kanth This man did not hold any licence for the country-made pistol A kanta and a torch were recovered from the possession of Drigpal Rccovery memos of the articles recovered were prepared at the spot and the two arrested persons were taken to the police station Sandila along with the recovered articles. A first information report of the occurrence was lodged by Rajendra Prasad Singh at police station Sandila.
3. A case was registered on the basis of the aforesaid first information report and theSecond Officer of police station Sandila, namely, Mukhtar Ali was directed to investigate the case. An inquest was held on the dead body of Munnu Lal and it was sent for post-mortem examination. The investigating officer proceeded with the usual investigation. Maiku was arrested and put up for identification. Ultimately these three persons were sent up for trial. There was the additional charge under Sections 25, 1(a) of the Arms Act against Neel Kanth.
4. The accused persons denied having assembled at the Behta Bridge as alleged by the prosecution and they further alleged that they were not arrested from that place. They attributed their false implication to enmity. According to Neel Kanth he was implicated at the instance of Qamruddin of village Ajagawah because he was on inimical terms with him. Drigpal stated that he was implicated on account of enmity with the police. According to Neel Kanth he was arrested from his own house and according to Drigpal he was arrested from his shop at Sandila.
5. P W. 2 Rajendra Prasad Singh. Sub-Inspector. P. W. 6 Neel Kanth. Head Constable, P. W. 7 Raghubir Singh, Sub-Inspector, P. W. 9 Baij Nath, Constable and P. W. 11 Irshad Ali and P. W. 12 Munshi Raza non-officials, were examined for the prosecution to prove the participation of the respondents in the assembly of the gang with the object of committing dacoity. The learned Assistant Sessions Judge repelled all the arguments of the defence and relying on the testimony of the aforesaid prosecution witnesses he found it fully proved that the gang of Munnu Lal assembled at Behta Bridge in the night between the 12th and the 13th of October, 1963, as alleged by the prosecution and that the respondents were among the culprits who had gathered there with the intention of committing dacoity after having made preparation for the same. However, relying on a single Judge decision of this Court in Balwant T. State, 1965 All WR (HC) 519 it was contended before the learned Assistant Sessions Judge that because the respondents were not put up for identification lest and their identity as participants in the assembly of dacoits was not established, there was a fatal weakness in the prosecution case. The learned Assistant Sessions Judge accepted this argument and held that the respondents were entitled to acquittal on the strength of the aforesaid decision of this Court. He thus acquitted Neel Kanth and Drigpal respondents of the charges under Sections 399 and 402 Indian Penal Code Maiku was also given benefit of doubt because the evidence of identification against him was not found acceptable. The case under Sections 25, 1 (a) of the Arms Act was however, found established against Neel Kanth and he was convicted and sentenced on that charge. There is no appeal of Neel Kanth before us against that conviction The State has filed appeal against the the acquittal of Neel Kanth and Drigpal alone on the charges under Section 399, 402 Indian Penal Code.
6. Sri D.K. Trivedi, amicus curiae, has argued the case on behalf of Drigpal None appeared on behalf of Neel Kanth but on our suggestion Sri Trivedi argued the case on behalf of Neel Kanth as well.
7. The finding of the learned Assistant Sessions Judge on the question of fact is in favour of the prosecution but the amicus curiae has challenged that finding and has tried to show that the evidence adduced does not establish the prosecution case as regards participation of the respondents in the alleged assembly of dacoits. Before we enter into this question of fact, we will like to deal with the question of law which appears to be of considerable importance. The learned Asstt. Sessions Judge appears to have found himself helpless in view of the single Judge decision of this Court 1965 All WR (HC) 519 referred to above even though he found it fully proved that the respondents were in the gang of Munnu Lal which had assembled at the time and piece alleged by the prosecution with the intention of committing dacoity at the house of Rameshwar Dayal after having made preperation for the same. The learned Assistant Government Advocate, Sri K.N. Kapur in forms us that many other cases of this nature are being acquitted on the authority of the aforesaid decision and thus this matter requires serious consideration by a Bench. We have therefore heard arguments of learned counsel for both sides at great length. In the case of 1965 AH WR (HC) 519 the accused were charged under Sections 309 and 402. Indian Penal Code They and their companions were alleged to have collected for the purpose of a committing dacoity. The accused persons had been in jail since the date when they were arrested and no identification proceedings were held in jail Katju. J. observed that thus the prosecution witnesses had not identified any of the accused as the persons who were arrested by the police in the evening of the date when they were said to have assembled for committing dacoity. He therefore held that the absence of identification of the accused was a fatal weakness in the prosecution case and hence it could not be held that the accused were the persons who had collected at the place for the purpose of committing dacoity.
6. With respect we are unable to agree with this view of our brother, Katju, J. The purpose of identification test is to test the memory and veracity of a witness who claims to identify an accused persons as the participant or one of the participants in a crime Such identification test may be needed in a case of dacoity assembling of persons for the purpose of committing dacoity, riot and any other offence the participants in which were not known to the witnesses from before and could not be apprehended at the spot. It may be quite easy for a witness to identify an accused in the dock and say that he was the person who had committed or had participated in the commission, of the crime. Therefore for the purpose of testing, the memory and veracity of the witnesses, identification parades are held in jail andthe witnesses are asked to pick out the culprits from the group of persons in which suspects as well as other persons are mixed. If, on the other hand an alleged culprit has been arrested at the spot, his culpability will depend on the veracity of witnesses who would say that he had committed the offence. It is not necessary to put up such arrested person for identification at an identification parade. There may be cases in which the accused himself may claim identification test in order to support his plea of non-participation in the crime. In such a case the court may consider the request of the accused on its merits and may in a suitable case require the prosecution to hold an identification parade. If, however, no request is made by the accused or where a request has been made by the accused but is considered by the court to be devoid of merit, it will not be necessary to hold an identification test and the failure of the prosecution to put up the accused for identification test will not be deemed to be fatal weakness in the prosecution case.
9. As was held in Lajja Ram v. State : AIR1955All671 an accused has no right to claim identification but if the prosecution turns down his request for identification it runs the risk of the veracity of the eve-witnesses being challenged on that ground The prosecution will be exposing the claim of such witnesses as to the criticism that the test of identification was shirked because the witnesses would not have been able to stand that test. It has to be noted that in the instant case no request for identification was made by the respondents.
10. In Kanta Prashad v. Delhi Administration 0043/1958 : 1958CriLJ698 the Supreme Court held that the, failure to hold an identification parade does not make inadmissible the evidence of identification in court and the weight to be attached to such identification is a matter for the court of fact. In the aforesaid Supreme Court case no test identification parade was held. The appellants were known to the police officials who had deposed against them and the only persons who did not know them before were the persons who gave evidence of association to which the High Court did not attach much importance. It was observed by their Lordships of the Supreme Court that it would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence but failure to hold such a parade would not make inadmissible the evidence of identification in court Thus it is not essential that an identification parade should be held even with respect to witnesses who did not know the accused before the occurrence and they can be asked to identify the accused in the court itself at the time of the trial However, it will need consideration as to what weight should be attached to such identification in court.
11. Again, in Vaikuntam Chandrappa v. Stale of Andhra Pradesh. : AIR1960SC1340 the Supreme Court held that the substantive evidence of a witness is his statement in court but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding.
12. In none of these cases the accused persons appear to have been arrested at the spot. The question of holding an identification parade for them could arise only when they were not arrested at the spot and the memory of the witnesses who claimed to have seen them at the time of the commission of the crime, had to be tested in an identification parade.
13. In Emperor v. Sadasibo AIR 1939 Patna 35 the identification of property was sought to be discredited on the ground that test identifications were not held. In this connection the following observations of Rowland. J. may be read with interest.
'Personally I see no magic about lest identifications. The evidence on which the Court has to act is the identification by witnesses at the trial and the question is, are the witnesses to be believed or not?'
14. In State of Orissa v. Dhanwati, 1964-1 Cri LJ 602 (Orissa) also the question of identification of stolen property arose. It was held :
'If there is evidence of identification establishing beyond doubt that the articles were stolen properties, from the house of the complainant, the Magistrate is not justified in rejecting that evidence merely on the ground that the articles recovered did not agree with those given in the F. I. R. or that they were not put to proper test identification parade.. . ...
Though it is prudent to hold test identification parade in such cases, the failure to do so does not make the evidence inadmissible.'
15. In Awadh Singh v. The State, AIR 1954 Pat 483 it was observed that the non-holding of a test identification parade may not be a ground to vitiate the trial although it may be a very important feature in considering the credibility of the witnesses on the point of identification.
16. On behalf of the respondents reliance was placed on a case of this Court Birey Singh v. State : AIR1953All785 in which it was held that in the absence of identification proceedings the mere 'ipse dixit' of the witnesses that the accused was one of the dacoits could not be believed. In this case too the accused was not arrested at the spot He was arrested subsequently but was not put up in an identification parade and the witnesses were asked to state at the trial whether he was one of the dacoits On facts, Birey Singh's case : AIR1953All785 is distinguishable from the instant case.
17. In an unreported decision of this Court (Lucknow Bench) in Criminal Appeal No. 362 of 1956. D/- 2-9-1958 (All). Mohammad Husain v. State, Mulla, J. took a, view contrary to that taken by Katju, J. in Balwant's case, 1965 All WR ;HC) 519 aforementioned. The accused before Mulla, J. was also charged under Section 399, Indian Penal Code. While dealing with the question of identification, Mulla, J. observed:
'In a case where suspects are arrested on the spot the question of identification does not arise The police would, therefore, not Collect the witnesses for the purpose of getting the arrested persons identified The trial Court was right in its observations against the conduct of the Magistrate who granted the request of the appellants that an identification parade be held In those cases where persons are arrested on the spot the question of identification does not arise An identification is held to test the memory and observation of a witness. The prosecution case depended upon the allegation that the appellants were arrested at the Co-operative brick-kiln. If that fact was proved. It was immaterial whether any witness succeeded in identifying the appellants or not. On the other hand if this fact became doubtful, then even a large number of identifications would not have been enough to prove the guilt of the appellants. Ah identification should be held only where a two way inference can be drawn from the results.
In this case if the witnesses had picked out the suspects, that would not have strengthened the prosecution case at all. The prosecution case depended upon the arrest on the spot and the contemporaneous entry relating to that arrest in the police papers. The Magistrate was, therefore, ill-advised when he directed that an identification parade should be held in this case.'
18. Having considered all the authorities cited before us we are of the view that the case of 1965 All WR (HC) 519 (supra) does not lay down the correct law. Where in a case like the present one the accused is arrested at the spot, all that has to be proved is that he was in fact arrested at the place and in the circumstances alleged by the prosecution and the failure of the investigating agency to put him up for test identification is not at all a weakness in the prosecution case, much less a fatal weakness. As stated above, the respondents in the case before us did not claim test identification and no question of holding a test, identification parade at all arose in the present case and the case of the prosecution could not be rightly thrown out on the ground of absence of test identification parade.
19. There is ample evidence in this case to prove that the respondents were in fact arrested at Behta Bridge in the night in question while they had joined an assembly of miscreants who had collected with the intention of committing dacoity after having made preparation for the same. P. W. 2 Rajendra Prasad Singh, Station Officer of Police Station Atrauli, stated that one of the dacoits was arrested by the first group and on being interrogated he told his name as Drigpal and that Drigpal was the same person who was standing in thedock. The witnes further stated that Head Constable Neel Kanth arrested another person who have out his name as Neel Kanth and that this Neel Kanth was also the same person who was an accused present in the dock. P. W 6 Head Constable Neel Kanlh stated that his group made out of the police party challenged the miscreants and caught hold of Neel Kanth, the accused in the dock. The witness. Neel Kanth further stated that besides Neel Kanth accused Drigpal accused was also arrested at the spot. P W. 7 Raghubir Singh, the then Station, Officer of Police Station Sandila, stated that Neel Kanth and Drigpal accused standing in the dock were arrested at the spot. P. W. 9 Constable Baij Nath stated that two dacoits i.e. Neel Kanth and Drigpal who were present in court, had been arrested at the spot. P W. 11 Irshad Ali, a non-official witness, stated that Drigpal accused present in the dock was arrested by the Sub-Inspector and his person was searched It was suggested to this witness in cross-examination that he was not present at the spot. In this connection he stated that when Neel Kanth was arrested, he saw him in the light and that it is wrong to say that the witness was not present at the spot. Another non-official witness, P. W. 12 Munshi Raza stated that Neel Kanth and Drigpal were arrested at the spot. Further on, the witness said that writing work relating to Neel Kanth and Drigpal accused persons was done at the spot. By accused persons' he meant the accused persons in the dock. The respondents who were present in the dock at the time of their trial were thus duly identified as the two persons arrested at the spot and the fact that they were not put up at an identification parade is of no consequence.
20. As we have stated above, the learned Assistant Sessions Judge found the testimony of the six eye-witnesses examined on behalf of the prosecution believeable and relying on their testimony he found it proved that the respondents had assembled near the Behta Bridge in the night and in the manner alleged by the prosecution. In the view of the learned Assistant Sessions Judge the public witnesses were independent and there was no reason to disbelieve them. The learned counsel for both sides have taken us through the entire evidence adduced for the prosecution and we are of the view, that the finding of the learned Assistant Sessions Judge was fully justified and correct. Of the six eye-witnesses four were police officials. One of them was station officer of police station Sandila and the other of Police Station Atranti. The two other police officials were a constable and a Head Constable respectively of police station Sandila. The witnesses have narrated the entire prosecution case and they stated that when the would be dacoits had arrived and assembled at a place near Behta Bridge and had discussed the whole plan for committing dacoity at the house of Rameshwar Dayal a very light pistol was fired by P. W. 2 Rajendra Prasad Singh, station officer, police station Atrauli. The four groups that were formed out of the police party rushed at the assembly of the miscreants. There upon one of the dacoits fired at Raghubir Singh who in retaliation fired at the dacoits. Munnu Lal died as a result of the shot fired by Raghubir Singh and the two respondents were arrested while the remaining miscreants managed to escape. Learned counsel for the defence has pointed out certain discrepancies in the evidence and has contended that the whole prosecution story is inherently improbable and unacceptable. We do not agree with this contention of the learned counsel and do not find any thing inherently improbable Rajendra Prasad Singh. S. O. Atrauli was, going on some work and on the way he got information that certain miscreants would assemble at Behta Bridge in that night for committing a dacoity Because the place was within the jurisdiction of police station Sandila, it was but natural for Rajendra Prasad Singh to inform Raghubir Singh, S.O. Sandila He went there, informed the station officer and this fact was recorded in the general diary at police station Sandila. The two Sub-Inspectors then organized a raid and they took some official and non-official witnesses with them. The witnesses have further stated that when the would be dacoits collected near the Behla Bridge, they discussed the plans which indicated that they intended to commit dacoity at the house of Rameshwar Dayal. When convinced of the evil intention of the persons who had collected, one of the Sub-Inspectors gave the signal by firing his very light pistol and the four groups which had been made out of the police party rushed at the dacoits.
21. There are no doubt some discrepancies in the statements of the prosecution witnesses but they are not material and the entire prosecution case cannot be discarded by reason of such discrepancies. When several witnesses relate the same story some contradictions are bound to happen. The contradictions in the evidence are on the point whether anybody had touched or had not touched the contents of the Jhola which was found lying near the dead dacoit, whether the station officer of Sandila had gone to the police outpost and had taken the Head Constable and the Constable from there with him or whether these persons met him at the police station, whether the statement of Raghubir Singh was recorded by the investigating officer at the spot or at the police station and similar other matters. These are all matters relating to the details and we do not think that any witness stated a deliberate lie on any of these points. The contradictions could be due to weak or faded memory.
22. The learned counsel has relied on certain circumstances which according to him make the prosecution story improbable. He has drawn our attention to the fact that no person in the police party received any injury although one of the alleged dacoits was Shot dead. From this circumstance the learned counsel tries to make out that there was no incident as alleged by the police and because somehow a man had lost his life at the hands of the police the latter made out the story in orderto escape from the liability of killing a man. In this connection, the learned counsel has also laid stress on the circumstances that even though blood is said to have been found near the dead body of Munnu Lal it was not sent to the Chemical Examiner and Serologist for report whether it was human blood. The police would have done well in sending the blood for report of the Chemical Examiner and Serologist but perhaps it was not considered necessary because the case was not being investigated as one of murder and the question as to how Munnu Lal lost his life was not in dispute. Merely because blood recovered from the place were not sent for chemical examination it cannot be said that Munnu Lal did not the at the spot at all The absence of injury on any person in the police party is also of no material importance The dacoits who had assembled near the Behta Bridge were taken by surprise when they were surrounded by four groups of the police party from four sides. A shot from the very light pistol was fired and in the light so created the dacoits must have seen that they were surrounded by an armed police party and the first and the foremost consideration of the dacoits must have been to run and escape. They would have seen no point in giving fight to the police party. One of them, however, fired a shot but it missed and when a Sub-Inspector fired in retaliation. Munnu Lal fell down and died. It is not strange if in the circumstances none in the police party received injury.
23. Another circumstance pointed out is that Rameshwar Dayal was a necessary witness but has not been examined by the prosecution. We do not think that it was necessary to examine Rameshwar Dayal According to the information received by the Sub-Inspector the dacoits were to assemble near Behta Bridge for the purpose of committing dacoity at Rameshwar Daval's place Necessary prosecution was taken by the police by sending two constables to Rameshwar Dayal's place Rameshwar Dayal did not come to the place of occurrence and he could not state what happened there All that he could say was that two constables were sent to his place to keep guard. It may even be that Rameshwar Daval did not know that the constables had come to guard his house for a particular reason or he might not have noticed the presence of the constables at night Therefore Rameshwar Dayal could not make any useful contribution to the prosecution case and the failure of the prosecution to examine him is not material.
24. Lastly it has been contended by the learned counsel that even though the occurrence took place in the night between the 12th and the 13th of October. 1963, the property alleged to have been seized by the police in the occurrence was sent to the Sadar Malkhana from the police station on the 11th of November, 1963. No explanation of this delay has been given by the prosecution. The suggestion is that there was no recovery in fact and these materials were procured subsequently in order to lend support to the case that was being madeout by the police. The fact relevant to the CASE was the recovery of a country-made pistol and some live cartridges from the possession of Neel Kanth. At this stage there can be no doubt regarding the recovery of these things from Neel Kanth's possession. Be was tried on the charge under Sections 25, 1(a) of the Arms Act and has been convicted. No appeal has been filed against this conviction. We find no good reason to disbelieve the prosecution case in this regard.
25. On close consideration of all the evidence and the circumstances we find the prosecution case established beyond doubt and we hold that the respondents collected along with several other persons at the Behta Bridge in the mid-night of the 12th and the 13th of October. 1963 with the intention of committing dacoity after having made preparation for the same. We have already held that the failure to put up the respondents for identification test does not cause any infirmity in the prosecution case. Thus the acquittal of tee respondents was not justified.
26. We allow the appeal and set asidethe order of acquittal of the respondents, NeelKanth and Drigpal. We convict them bothunder Sections 399 and 402 of the Indian Penal Code and sentence them each to undergo rigorous imprisonment for five years on each ofthese two charges. Both sentences shall runconcurrently. The sentence of Neel Kanth onthe charge under Sections 25. 1 (a) of the Arms Act shall also run concurrently with the other sentences imposed on him if not already undergone by him. If the respondents are on bail,they shall surrender forthwith and serve outthe sentence The Additional District Magistrate (Judicial). Hardoi shall be directed toget them arrested and sent to Jail. A copyof this order shall be sent to him for necessary action.