Rajeshwari Prasad, J.
1. This petition in revision has been filed by four persons Ahmad Ali Arsh Mohammad (son of Maqtool), Aas Mohammad (son of Bhurey) and Habib. These petitioners along with others were convicted and sentenced for offences under Sections 399 and 402, Indian Penal Code, by Sri S. S. Agrawal, Assistant Sessions Judge, Meerut on 5th December 1964. Some of the present petitioners along with others were also convicted for offence under Section 25, Arms Act.
2. There was an appeal from that order of conviction before the learned Session Judge, Meerut which was dismissed on 24th March 1965. Jail appeals in that connection were also dismissed.
3. Sardar Noor Khan (P. W. 1) Station Officer, police station Ghaziabad received information at about 8 P.M. on the 5th March 1964 through an informer that the gang of dacoit Aas Mohammad of Bulandshahr were preparing to commit dacoity at the house of one Niaz Ali Patwari of village Mirzapur in the district of Bulandshahr. He also came to know that the gang for that purpose was to assemble in the guava grove of one Chidda Pandit. Sardar Noor Khan with other police constables left for village Mirzapur. The party of Sardar Noor Khan included Sub-Inspector Azhar Abbas Zaidi, Sub. Inspector Seeshpal Singh and Sub-Inspector Vishnu Datt Sharma, Head Constable Hiredy Ram and other ten constables. Necessary entries in the general diary were made before departure and the general diary is Ex. Ka. 1 on the record. When the police party Hashed the destination at about 9 P.M., Niaz Ali was informed about the projected dacoity at his house. A large number of persons including licence-holders from the village were collected. Amongst such persons were Inder Nath, Shafiq Ahmad, Fajju, Turab Ali Rashid Ahmad, Munshi. Hashim Ali, Fateh Mohammad, Hakim Ali and Shafi Mohammad. Out of that party, Head Constable Hirdey Ram along with two constables and licence-holders Hakim Ali and Shafi Mohammad were left at the house of Patwari Niaz Ali and the rest of the party left for the said guava grove of Chhidda Pandit.
The police party divided itself into three groups one of which was under the charge and the leadership of Sardar Noor Khan. When the police party had waited for sometime, two persons entered the grove from the north eastern corner and thereafter one by one six more persons reached there. They started talking in whisper which was heard by Sardar Noor Kuan who was nearest to the spot and Sardar Noor Khan heard that they were talking about the dacoity to be committed at the house of Niaz Ali of Mirzapur and that they were waiting for the arrival of the gun-man. Sardar Noor Khan thereafter fired a shot from his very-light pistol which caused a brilliant light. The police party converged on the miscreants and surrounded them. Seven of the persons sitting there were apprehended while one made his escape good. A search of the person of the seven persons apprehended was made and a country-made pistol (Err. 7) and five live cartridges (Ex. 2 to 5) were recovered from the parson of Ahmad Ali, Ex. 16 another country-made pistol and six live cartridges (Ex. 17 to 22) were recovered from the person of Aas Mohammad. A knife (Ex. 8) was also recovered from the possession of Arsh Mohammad. A lathe Ex. 12 was recovered from the possession of Habib. Other articles were recovered from the person of other persons with whom I am not concerned in this revision petition. The arrested persons along with recovered articles were taken to the police station Ghaziabad. Entry was made in the general diary (Ex. Ka. 10) and a First Information Report (Ex. 9) was lodged. Sub-Inspector S.P. Gavel made investigation and the petitioners were charge-sheeted. After the preliminary enquiry, the petitioners along with others were committed to the Court of Sessions to stand their trial for offences punishable under Sections 399 and 402, Penal Code and two of them Ahmed Ali and Aas Mohammad were also charged under Section 25, Arms Act. The petitioners along with other accused persons pleaded not guilty.
4. The prosecution examined 11 witnesses to prove its case and their testimony was accepted by the trial Court in proof of the fact of the arrest of the accused at the alleged spot at the alleged time and under the alleged circumstances. Their testimony further proved the recoveries made from the person of the accused persons.
5. As mentioned above, the accused pleaded not guilty and they took up the case that different accused were arrested from different places. Two witnesses namely, Abdul Humid (D. W. 2) and Hard Deal (D. W. 1) were examined by the accused. The trial court discussed the evidence produced by the parties and felt satisfied that the prosecution had succeeded in establishing that the accused persons had committed the offence under Sections 399 and 402, Penal Code. Each one of them, therefore, was sentenced to undergo three years R. I, for the offence under Section 399 and likewise three years R.I. for the offence under Section 402, Penal Code, but the sentences were made to run concurrently.
6. The learned Sessions Judge who dismissed the appeal also considered the evidence on record and concurred with the view taken by the trial court and found that the prosecution case had been established beyond any shadow of doubt.
7. In support of the revision petition, Mr. Kesho Sahai learned Counsel for the revisionists has vehemently urged that the entire proceeding leading up to the order of conviction of the petitioners is vitiated in-as much as no identification test wag held in this case. It is not in controversy that in this case, no identification test was held. It has been urged that substantive evidence in this case should not have been accepted in the absence of there being verification by means of identification test. What has been found to be proved in this case is that a number of persons were apprehended at the spot and at the time as alleged by the prosecution. It has also been found that from the time of the arrest, the arrested persons were taken in custody and were in custody throughout. Such evidence on behalf of the prosecution consists of the testimony of police officers and constables as well as of public witnesses. Both the trial Judge as well as the learned Sessions Judge who heard the appeal found that the prosecution evidence with regard to these facts was such on which reliance could safely be placed. They have, therefore, chosen to accept the above facts to be proved on the strength of the prosecution evidence in this case.
In a case with circumstances like the present ones the question that arises is whether the substantive evidence produced on behalf of the prosecution should be discarded because there has been no identification test in this case. In other words, the question is whether on such circumstances and on such facts it was necessary for the prosecution to bold a test of identification.
8. In support of the contention that in the absence of such an identification test, the substantive evidence should not have been deemed to be sufficient for giving verdict of con. viction, the learned Counsel for the revisionists has relied on the case of Birey Singh v. State AIR 1958 All 785. Reliance has also been placed on the Supreme Court decision in the. case of Vaikuntam Chandrappa v. State of Andhra Pradesh AIR 1960 SC 1940 and finally my attention has been invited to another recent decision of this Court in Balwant v. State 1964 All Cr C 243. The observation in the case of Birey Singh AIR 1958 All 785 (supra) by Hon. Mr. Justice Desai, which has been relied upon by the learned Counsel is as follows:
Then in the absence of identification proceedings, I do not know how the mere 'ipse dixit' of the witnesses that the appellant was one of the dacotis could be believed. The prosecution has not offered any explanation for not holding identification proceedings.
9. The above observations were made with reference to the facts of that particular case. In that case, arrest and apprehension of the accused was not made at the spot. It was only later on that they were arrested. The accused, therefore, were not taken into custody from the time of the occurrence, nor did they continue in custody till they were brought (o the Court. In a case of that nature, there appears to be no manner of doubt, that the law is, that identification test is indispensable. An observation of the Court made in a case of that nature, therefore, cannot be utilised for deciding a case of the nature of present one where the accused persons were not only caught red-handed but were taken into custody on the spot and continued to be in custody till they were brought in Court The observation of the Supreme Court made in the case of : AIR1960SC1340 (supra), which baa been relied upon by the learned Counsel for the revisionists before me is as follows:
It is also true that substantive evidence is the statement in Court; but the purpose of teat 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 proceedings.
That case was again a case where the miscreants were neither arrested at the spot nor kept in custody :since then. I have already noted that in a case of that nature, the importance of test identification cannot be under estimated. But I am unable to use that observation for the purpose of deciding the instant case which is entirely of a different class. Even in the aforesaid Supreme Court case after the observation which had been noted above, it was further observed : --
There may be exception to this rule where the Court is satisfied that; the evidence of a particular witness is such that it can safely rely on it without the precaution of an earlier identification proceedings.
10. After making that observation, their Lordships of the Supreme Court proceeded to consider the facts of that case and came to the conclusion that that was not a case of that exceptional class. The latter observation of the Supreme Court noted above, therefore, clearly indicates that even in a case where the miscreants have not been caught red handed and apprehended on the spot and thereafter kept in due custody, the rule requiring holding of identification test is not absolute. In that class of cases also, there may be an exceptional case where there is exceptionally good and reliable evidence to establish the identity of the accused without there being an identification test, So far as the decision of the learned Single Judge of this Court in the case of 1964 All Cri. C 243 (supra) is concerned, a perusal of the same makes it clear beyond doubt that the emphasis on requirement of identification test was laid down in view of the facts of that particular case. That decision does not and could not purport to lay down a principle of general application to every case. That was a case in which the identity of the accused was not. satisfactorily established by other evidence also.
On the other hand in the case of Dhas Singh v. State 1966 All W R (HC) 584, it was held that in a case where the miscreants have been apprehended at the spot, immediately taken into custody and they continued to remain in custody till they were brought to Court, it would only be a farce to requite identification test to be held. The facts of this last mentioned case are parallel to the facts of the present case and the principle laid down in that case is consequently fully applicable to the facts of the present case also I am of the view that it would not be safe to lay done either a positive or a negative rule of that, kind applicable to every case, It must be left to be decided on the facts and evidence of each case where the want of identification test had any material bearing on the result of the case.
So far as the instant case is concerned, it has been found that the prosecution evidence leaves no manner of doubt as to the correctness of the fact that a number of persons were arrested at the spot and those pen one who were thus arrested remained in confinement: throughout thereafter. If this evidence has been found to be convincing by the two Courts below, in the absence of any overriding consideration, I will not be justified in disagreeing with the view, thus, taken, in revisional jurisdiction. This being so, to my mind, the absence of identification test on the facts of this particular case has absolutely no material bearing on the result of the case. It may also be noted that the accused also did not claim test identification in this case, and this points out in the conclusion, that it was known that no useful purpose would be served by such a test.
There could be two methods establishing the identity of the accused. The one was to produce witnesses to testify to the fact that it was a particular person who was found connected with the offence. The other method would be to apprehend the person red-handed and at the spot, continue to keep him in custody and produce him in Court as the person who was guilty of the offence. The facts of the present case as I have indicated above are therefore entirely different from the facts of the other classes of cases. There is absolutely no suggestion in this case of any ill will or hostility between the petitioners and the police which happened to be the police of & district different from the district of the place of the occurrence, Likewise, there is no suggestion of any ill will between the petitioners and the public witnesses.
11. On the consideration of the evidence, I find myself in agreement with the view taken by the trial Judge as well as the learned Sessions Judge in appeal.
12. The learned Counsel also urged that the sentence of three years' R. I. is excessive in this case. To my mind it errs on the side of leniency if at all and it cannot be said that the sentence awarded is such which deserves to be reduced by this Court.
13. No other question arises in this revision petition.
14. The petition in revision is dismissed and the orders of the petitioners' conviction so also the sentences awarded to them by the trial Judge and maintained by the learned Sessions Judge are upheld. The petitioners are on hail. They will surrender to serve out the sentences.