1. On August 25, 1967, at about 8 P. M. accused Pritam Singh, Dalip Singh, Ranki and Chandra Sahai. armed with pistols and knives, entered the house of the complainant Tekchand, situate in Ganganagar, to commit robbery. Tekchand and his wife Mst. Manbhari were available in the house. The accused Pritam Singh caught hold of Tekchand and took him to the stare-room. He gave blows to Tekchand with a 'Lathi' and threatened him with dire consequences unless he parted with his valuables. Accused Ranki forcibly took off ornaments of Mst. Manbhari. On her raising an alarm, she was beaten. She however, managed to run away towards the gate. The accused Chandra Sahai tried to catch her. She somehow escaped from her residence. On hearing her cries Puran and others assembled on the spot. After sometime the accused took to their heels with the booty stolen by them. Tekchand lodged first information report with the Police Kotwali, Ganganagar, soon after the occurrence. In the course of investigation one Banta Singh was arrested by the Police. He disclosed the name of the accused Ranki. The police got clue in respect of the other accused persons from Ranki; both Ranki and Chandra Sahai were challaned in the Court of Munsif Magistrate, Ganganasar. That court committed them to the Court of Sessions Judge, Ganganagar, for trial under Section 394, Indian Penal Code, on December 17, 1967. The other two accused Dalip Singh and Pritam Singh were arrested on Decemebr 17, 1967. Subsequently, they too were challaned in the Court of Munsif Magistrate, Ganganagar. The said Magistrate conducted preliminary enquiry and committed them to the Court of Sessions Judge, Ganganagar, to face trial under Section 394, Indian Penal Code. The cases were subsequently transferred to the Court of Additional Sessions Judge of the place. The trial court consolidated the two cases. The four accused denied to have commited any offence. The prosecution examined nine witnesses in support of its case. In their statements recorded under Section 342, Criminal Procedure Code, the accused again denied the indictment. The trial Court relied upon the solitary statement of Tekchand and convicted the accused Pritam Singh. Dalip Singh and Ranki for the offence under Section 394. Indian Penal Code, and sentenced each of them to four years' rigorous imprisonment and to pay a fine of Rs. 200/-, in default, to undergo further rigorous imprisonment for three months. The accused Chandra Sahai was acquitted of the offence with which he was charged.
2. Aggrieved against the above judgment, Pritam Singh and Dalip Singh have filed this appeal. Contention of learned counsel for the appellants is that offence under Section 394, I. P. C., has not been fully brought home against his clients and, therefore, they should be acquitted. Learned counsel for the State Government submitted that Tekchand's evidence before the trial court alone is enough to base the conviction of the appellants. The witness saw the accused from close quarters when the robbery was committed or when they were beating the inmates of the house and, therefore, there is no reason to doubt this testimony.
3. In this case no other prosecution witness except Tekchand identified Pritam Singh and Dalip Singh. No stolen property has been recovered from the possession of the appellants. At the time of the identification parade Pooran Ram expressed his inability to identify the accused on the ground that the night of occurrence being dark, he could not definitely see the robbers. It is in the prosecution evidence that Tekchand's house had no electricity and that it was Tekchand, who identified the accused. There was only a dim light of a kerosene lantern. In that context, it was difficult if not impossible, to observe minutely, the features of the robbers from a distance of about 20 'Pavandas' or 100 feet. The occurrence took place on August 25, 1967, the identification proceedings were conducted on December 29, 1967, that is after more than four months. Test identification held long after the event is of little value. The value of identification depends on two most important factors, viz., that the person who identifies an accused had had no opportunity of seeing him after the commission of thecrime; and secondly that no mistake had been made by the witness. No importance can be attached to Identification if the test identification is conducted long after the arrest of the accused. There is every possibility of committing mistake by a witness if the identification proceedings are held after an inordinate delay. Again, in the present case the accused were put in the identification parade 11 days after their arrest. No convincing explanation is forthcoming as to why so much time was allowed to pass between the arrest of the accused and the identification proceedings.
4. The record shows that the identification was conducted by Mr. Vasudeo, Sub-Divisional Magistrate, Ganga nagar. For the reasons best known to the prosecution Mr. Vasudeo has not been examined. It is true that in Ashrafi v. State AIR 1961 All 153. an observation was made by the Allahabad High Court that the identification memo is a record of the statement taken under Section 164, and, as such, must be presumed to be genuine under Section 80 of the Evidence Act and that it is not necessary to call the Magistrate in evidence as the memorandum under the terms of Section 80 is evidence of everything that it contains. With great respect to the learned Judges, who decided the case of Asharfi, AIR 1961 All 153, I am unable to accept the dictum laid down therein. This aspect of the matter was not considered in that case that presumption under Section 80, Evidence Act, would arise only if the memorandum of identification amounted to evidence, within the meaning of Section 3 of the Evidence Act. In support of this proposition a reference may usefully be made to a subsequent Division Bench case of the Allahabad High Court reported as in Ram Sanehi v. State. AIR 1963 All 308.
I am, therefore, of the opinion that the identification memo in the present case is inadmissible in evidence and that the testimony of Tekchand, who is alleged to have identified the appellants in the presence of the trial court, remains uncorroborated by earlier identification. Learned counsel for the State argued that Tekchand identified the accused before the trial court and that identification, coupled with the fact that he categorically stated that he had identified the accused before a Magistrate, should be held sufficient to connect the accused with the crime. It is correct that the substantive evidence of the witness is his statement before the trial court. However, the purpose of test identification is to test the evidence of the witness before the trial court and the safe rule is that the sworn testimony of a witness in the trial Court as to the identity of the accused, who are strangers to the witnesses, generally speaking, requires corroborationwhich should be in the form of earlier identification proceeding. (See Vaikuntam Chandrappa v. State of A. P., AIR 1960 SC 1340). In the present case, as has been, stated above, the identification memo is hot admissible in evidence. No reliance, therefore, can be put on the identification of the witness before the trial Court. In other words, it is wholly improper to base the conviction of the appellants entirely upon the belated identification in the trial Court unsupported by the earlier test identification proceedings. It may also be pointed out that it is not safe in the circumstances of the case to rely on the testimony of only one witness for convicting the appellants of the offence of robbery, especially when the witness is alleged to have seen the accused in a dim kerosene light from a long distance and when there is no other circumstantial evidence to connect the accused with the crime. See Chandra Pal v. State. AIR 1954 All 684.
5. The result, therefore, is that the accused Pritam Singh and Dalip Singh are acquitted of the offence under Section 394. I. P. C. They are in Jail. They should be released forthwith, if they are not required in any other case.