Jagdish Chandra, J.
(1) This criminal appeal filed by convict/appellant Lotan Yadav is directed against his conviction and Sentence whereby he was convicted under Ss. 395/34 Indian Penal Code and sentenced to undergo R.I. for a period of three years and also to pay fine in the sum of Rs. 100.00 and to undergo further R.I. for tw6 months in default of payment of fine. The aforesaid judgment of conviction and the order of sentence were both passed on 20-2-1980 by Shri S.M. Aggarwal, Additional Sessions Judge. The initial charges against appellant had been framed under sections 395 read with S. 398 Indian Penal Code . which we had pleaded not guilty. He was, however, acquitted of the charge under S. 398 Indian Penal Code .
(2) The first information report in this case was lodged by one Chhotey Lal who gave a detailed account of the commission of the dacoity at the kiln of Devendra & Company in village Matiala within the jurisdiction of Police Station Janakpuri. The prosecution case, in brief is that on the intervening night of 19th and 20th July, 1979 Chhotey Lal who was employed as Munshi on the aforesaid brick kiln, was present there along with Chowkidar Mohan Singh, Budh Singh munshi and labourers Santokh and Gaja Dhar and they were having talk among themselves, at about 12.00 in the night, when 7/8 persons came towards them flashing torches on their enquiry Chhotey Lal stood up and told them that it was the brick kiln of one Amar Jyoti. They were armed with Khukhris iron rods, lathis and a country made revolver. Immediately thereupon one of the dacoits robbed Chhotey Lal of his wrist watch 'Henri Sandoz' and also forcibly snatched a cash amount of Rs. 11.00 from his pocket. Mohan Singh was also robbed of a cash amount of Rs. 13.00 from his pocket. Labourer Santokh who was lying in a truck nearby was also robbed by the dacoits of a cash amount of Rs. 100.00 . Dacoits also snatched a sum of Rs. 65.00 from the pocket of Gaja Dhar. They also forcibly broke open the almirah lying in the office and took out there from a cash amount of Rs. 60i0.00 one Henri Sandoz watch and another H.M.T. watch belonging to Budh Singh. All the aforesaid victims were forcibly confined in the said office.
(3) After robbing the aforesaid persons the dacoits went into the nearby labour camp and snatched H.M.T. watch from the wrist of Ram Dev labourer.
(4) The aforesaid victims of the brick kiln came out of the grilled ventilator of the office and raised alarm. One of the dacoits fired a shot in the air and all of them made good their escape. Chhotey Lal bad given the description of some of the dacoits in the first information report and had told the police that he would be able to identify them if shown to him.
(5) Two months after the aforesaid occurrence, i.e. on 20-9-1979 Inspector Chetan Dass, then S.H.O. Police Station Janakpuri received a wireless message from P.S. Tilak Nagar conveying that the accused persons had been arrested by them who were making disclosures about the occurrence of this case. Those accused persons were arrested in another case Fir No. 795/79 of P.S. Tilak Nagar by Special Staff, Inspector Chetan Dass thereupon arrested accused persons Kalicharan, Jagan Nath, Suraj Bali and Hari @Khakhnu. Subsequently, Inspector Chetan Dass arrested accused Sahadur.
(6) On 13-11-1979 Inspector Chetan Dass was informed by ASl Chunni Lal that Lotan appellant had been arrested in the aforesaid case Fir No. 795/79 of P.S. Tilak Nagar and that he was on judicial remand up to 25-11-1979. On receiving that information Inspector Chetan Dass got issued on 14-11-1979 production warrant of Lotan appellant and formally arrested him in the case in hand on 16-11-1979 and got him sent to judicial custody till 26-11-1979. The test identification parade for him was fixed for 19-11-1979 but it could not be held on that day. Thereafier,the same was to take place on 23-11-1979 on which day appellant Lotan refused to participate in the test identification parade on the plea that he had been shown to four witnesses by the police when he was produced in court for purposes of remand.
(7) During trial the prosecution examined a number of witnesses. The eye witnesses amongst them were Chhotey Lal (Public Witness 10), Mohan Singh (PW II) and Budh Singh (Public Witness 12). Chhotey Lal and Mohan Singh identified in the dock two dacoits namely, Lotan appellant and co-accused Kalicharan only and not the remaining three. Budh Singh Public Witness 12) had identified all the five accused standing trial as being 'amongst the dacoits. Chhotey Lal and Mohan singh had also deposed that the fateful night of the occurrence was a moan-lit night, even though there was no electric light on the spot. The learned trial court was of the view that all the above mentioned three eye witnesses corroborated one another in all material particulars and nothing material had been extracted from the cross-examination of any one of them. The learned trial court was satisfied with the truthfulness of the witnesses Chhotey Lal and Mohan Singh especially for the reason that they had not falsely implicated the remaining three accused facing trial and had been content only with identifying two accused persons, namely, Kalicharan and appellant Lotan. The refusal statements of the accused persons including that of appellant Lotan to participate in the test identification parade did not find favor with the learned trial court and consequently the learned court drew adverse inference against them to the affect that had they participated in the test identification parade, they would have been correctly identified by the witnesses who had during the trial correctly identified both of them.
(8) In this criminal appeal Mrs. Avnish Ahlawat, Advocate, was appointed amices-curia for the appellant. During the course of arguments the learned amices curiae contended that there was no evidence whatever on the records of the case to show that appellant Lotan was kept in muffled face and was, thus. shown to the witnesses and consequently his refusal to participate in the test identification parade could not be said to be unjustified and no adverse inference could have been drawn against him as was done by the learned trial court and further that his identification in the trial court dock by the eye witnesses was hardly of any evidentiary value. It was further pointed out that in the application for the judicial remand of the appellant Lotan there was no men; ion that the appellant had been produced in court with his face muffled, nor the endorsement of the magistrate on that application mentioned the factum of the appellant being present with bids face muffled. The records of the case include that application dated 16-11-1979 made by S.H.O.Chetan Dass of P.S. Janakpuri to Smt.Urmila Rani then Metropolitan Magistrate and on that application there is an order of the same dated passed by the learned magistrate where in the presence of the appellant is recorded and the order of remanding him to judicial custody till 26-11-1979 is made. The perusal of this application and the order of the magistrate passed thereon for judicial remand of the appellant does not show or even suggest that appellant Lotan was present there with his face muffled.
(9) Mr. G.S.Sharma, Advocate representing the State in this case had, on the other hand, asserted that the production of an accused person in such like cases wherein his participation in the test identification parade is necessary, is invariably produced in court with his face muffled and the omissions in that regard in the aforesaid application dated 16-11-1979 as also in the order passed thereon by Smt. Urmila Rani, M.M. remanding the appellant to judicial custody uptill 26-11-1979 was only an accidental slip and should not be allowed to weigh against the prosecution. This general practice of producing an accused person before the magistrate in muffled face is certainly there and the same cannot be ignored easily. The only material witness on this point is Inspector Chetan Dass (Public Witness 13) whose testimony upon this point would be very material for deciding the question whether appellant Lotan was produced without his face muffled before Smt. Urmila Rani, M.M. when his judicial remand was sought and granted. The perusal of the testimony of Inspector Chetan Dass (Public Witness 13J shows that while deposing about the appellant Lotan regarding his arrest and judicial remand and the fixation of dates for his test identification parade and his refusal to participate in the parade, he did not care to depose that the appellant Lotan was in muffled face when he was produced before the magistrate for the purposes remand, even though while deposing about the remaining four co-accused persons, namely, Kalicharan, Jagan Nath, Suraj Bali and proclaimed offender Hari @Khakhnu he specifically deposed that they were directed to muffle their faces as identification parade was to be conducted. . Even about the remaining co-accused Sahadur who was apprehended some time later he deposed that the face of Sahadur was also muffled. He further talked about all the aforesaid accused persons having been seat to judicial custody till 5-10-1979. When this witness talks of the muffling of faces of all the remaining co-accused persons his silence on that point about appellant Lotan cannot be just an accidental slip but, on the other hand, a meaningful truth that he was not directed by him to keep his face muffled and that the omission in the aforesaid application dated 16-11-79 made by Inspector Chetan Dass to Smt. Urmila Rani, M.M. as also the order thereon passed by the said magistrate regarding his presence must be taken to be true and not only an accidental slip and in this view of the matter the plea of refusal on the part of the appellant Lotan to participate in the test identification parade on the ground that he had been shown to witnesses when he was produced in court for purposes of remand, could not be brushed aside by the learned trial court as unjustified and consequently no adverse inference could be drawn against him. The learned trial court, while dealing with the plea of refusal to participate in the test identification parade by appellant Lotan, observed that this plea was not carried over in his statement under S. 313 of the Code of Criminal Procedure, 1973 or in the cross-examination of the material witnesses and no question was raised at any stage during the cross-examination of Shri Garg, M.M. (Public Witness 6) or Shri Chetan Dass (Public Witness 13) that the face of accused Kalicharan or Lotan was not muffled when they were produced for test identification parade or for remanding to judicial custody. In this appeal we are not concerned with accused Kalicharan but only with appellant Lotan. The perusal of the statement of the appellant under S. 313 Cr. P.C. shows that in reply to question no. 8 pertaining to this refusal to participate in the test identification parade, the appellant stated specifically that he had been shown to the witnesses by the police earlier. So, the observation of the learned trial Court on this point regarding the statement under S. 313 Cr. P.C. is not factually correct. The perusal of the cross-examination of Inspector Chetan Dass (Public Witness 13) shows that while he was cross-examined regarding the other co-accused Kali Charan, Sahadur, Jagan Nath and Suraj Bali as having been shown to the witnesses, such cross-examination was not directed for appellant Lotan, in as much as the dates 28-9-1979 of their refusal to participate in the test identification parade and 5-10-1979 on which their police remand was taken and which dates were put to this witness regarding the question of their having been shown to the witnesses relate only to Kalicharan, Sahadur, Jagan Nath and Suraj Bali and not to appellant Lotan. The further suggestion put to this witness in his cross-examination is regarding the PWs, having seen the accused persons in the jail before test identification parade but this suggestion regarding jail does not fit in with the plea of appellant Lotan. The obvious reason for not cross-examining Inspector Chetan Dass in respect of the plea of refusal of appellant Lotan for participation in the test identification parade is that in his testimony in-chief this witness had not made even a vague suggestion regarding the appellant being produced before the Court of Smt. Urmila Rani, Mm, with his face muffled, and the defense could not be expected to fill up the lacuna unnecessarily which had been caused by the omission as aforesaid not only in the testimony in-chief of Inspector Chetan Dass (Public Witness 13) but also in the aforesaid application dated 16-11-1979 moved by Inspector Chetan Dass for obtaining judicial remand of the appellant as also the remand order passed thereon by the magistrate.
(10) Shri A.K. Garg (Public Witness 6), Metropolitan Magistrate, is not the material witness to whom the plea of appellant Lotan regarding his refusal to participate in the test identification parade could have been put in his cross-examination, because after the appellant had been remanded to judicial custody on 16-11-1979 uptil 26-11-1979 the intervening application dated 21-11-1979 made by Inspector Chetan Dass to Shri A.K. Garg and the order passed thereon for holding the identification parade on 23-11-1979, (vide Exts. PW/6A and Public Witness 6/B) had been made in the absence of the appellant. The refusal statement Ext. Public Witness 6/C was made by the appellant before Shri A.K. Garg in his cross-examination.
(11) In the face of the omission regarding the muffled face of the appellant as aforesaid, appearing in the statement of Inspector Chetan Dass who talked of the muffled faces of all the remaining co-accused in his that very statement, as also in the application for judicial remand and the order of the magistrate Smt. Urmila Rani thereon on 16-11-1979 which go to point out the truth in favor of the plea of the appellant, it would be immaterial that the eye witnesses were not put the suggestion of their having been made to see the appellant at that time of the grant of judicial remand.
(12) Under the circumstances aforesaid the plea of refusal on the part of the appellant Lotan to participate in the test identification parade cannot be called unjustified and thus no adverse inference under S.I 14 of the Evidence Act could be drawn against him that if he had participated in the test identification parade, he would have been identified by the witnesses.
(13) In the face of the plea of the appellant that he had been shown to the witnesses at the time of the grant of judicial remand to him, looking true and his consequent refusal to participate in the test identification parade during investigation of the case, his identification in the dock of the trial court by the eye witnesses, namely, Chhotey Lal (Public Witness 10), Mohan Singh (PWII)and Budh Singh (Public Witness 12) about 21 years after the occurrence loses much of its credibility. It is also a matter worthy of note that in his cross examination dated 11-1-1982 Chhotey Lal (Public Witness 10) conceded that appellant Lotan was shown to him out side the court by the Inspector, that he was the robber. Mohan Singh (Public Witness 11) has also conceded in his cross-examination that appellant Lotan was shown to him at the Police Station when he was not in muffled face. To further add to it a little there is yet another factor which is that admittedly there was no electric or lamp light on the place of occurrence and it was only a moon-lit night wherein the visibility of human features to be retained in memory for a long time is poores.
(14) No other point was urged at the Bar and in view of the above discussion, the case of the prosecution cannot be said to have been proved beyond a reasonable doubt against appellant Lotan and consequently accepting his appeal and setting aside the impugned judgment of conviction and the order of sentence, the appellant is acquitted.
(15) The appellant is in jail in this case and he be released forthwith if he is not wanted in any other case.