S.S. Byas, J.
1. This is a joint appeal by four accused, Jangsingh, Niranjan Singh, Habib Alam and Sher Singh alias Sherjang Singh against the judgment of the learned Additional Sessions Judge (1), Hanumangarh dated 22.3.1982 convicting the appellants under Sections 395/397. I.P.C. and sentencing each of them to seven years' rigorous imprisonment with a line of Rs. 1000/-, in default of the payment of line to further undergo six months' like imprisonment.
2. The case, relates to a Highway dacoits alleged to have been committed in a running bus during night.
3. Put briefly, the prosecution case is that deluxe bus No. R.S.G. 737 of Rajasthan State Roadways Corporation left Ganganagar at about 8.00 P.M. on 5.9.1976 on its destination to Jodhpur. PW 3 Anandram was the driver while PW 2 Jai Singh was the Conductor on duty in the bus. Pw 21 Shri G.P. Chelani, the then Manager. Hanumangarh Depot of the Corporation, was also travelling in it. There was a good number of passengers in the bus. At about 11.00 P.M, when the bus was nearly 4 kilometres away from village Rajiyasar a jeep came from the opposite direction. The road was not wide enough for two vehicles. The driver of the jeep gave a signal to the driver of the bus to stop it. PW 3 Anandram stopped the bus. The jeep also stopped. A man got down from the jeep and came to the driver's gate of the bus. That man (one of the miscreants) asked the passengers whether there was any Asia Sahib (meaning thereby a weapon) in the bus. One of the passengers travelling in the bus said that there was no Asia Sahib in the bus. That man went to the gate of the Conductor and told the passengers that those who had illegal weapons, should come down. He thereafter went to the jeep, Some other men came from the jeep and dragged clown the bus-driver Anandram. Some more persons from the jeep came there. The driver of the bus was put in the jeep. One of the miscreants took the driver's seat in the bus and took it nearly a kilometre away on the road. The jeep also followed it. The bus was thereafter stopped. The miscreants were armed with gun, rifles and knives. They took positions and asked the passengers to come down one by one from the bus. Each of the passengers, when he came down, was robbed of his belongings at the Kate of the bus. The passengers so looted were then asked to sit on a nearby sand-dune. One of the miscreants remained standing with them at the dune. Thus, all the passengers were relieved of their possessions. They also took away the luggage lying in the bus. After committing the dacoity the miscreants removed some bolts from the bus to prevent its immediate running. The miscreants then boarded the bicep and made good their escape. In all there were six miscreants. The driver re-fitted the bolts and drove back the bus to Police Station, Suratgarh where Shri C.P. Chelani (PW 21) lodged written report Ex. P 35 of the occurrence at about 1.30 A. M. on 6.9.1976. The police registered a case and proceeded with investigation. PW 19 Jelesingh, Station House Officer visited the site in the same night and prepared the site plan. Accused Habib Alam, Niranjan Singh and Jangsingh were arrested on 11.10.1975. In consequence of the in formations furnished by them whilst under police custody, some of the looted article were recovered. Their test-identification was also conducted during investigation by a Judicial Magistrate and they were correctly identified by some of the passengers travelling in the bus. Accused Sher Singh was arrested on 27.7.1977. He was also put to test identification parade and was correctly identified by some of the persons travelling in the bus. Some of the looted articles were found in possession of Jagroop Singh and Ject Singh. On the completion of investigation, the police submitted a challan against the accused-appellants under Sections 395/397 and against Jagroop Singh and Jeet Singh under Section 412. I.P.C. in the Court of the. Learned Munsif & Judicial Magistrate, Suratgarh. who in his turn committed all of them to take trial in the Court of the Additional Sessions Judge (1), Hanumangarh. The learned Sessions Judge framed charges under Sections 395/397 against, accused-appellants and under Section 412, I.P.C. against the remaining two, Jagroopsingh and Jeetsingh. All the accused pleaded not guilty and demanded the trial. The accused appellants refuted the prosecution case and alleged that they have been falsely implicated. During trial, the prosecution examined 26 witnesses and filed 70 documents. In defence, one witness was examined. On the conclusion of trial, the learned Sessions Judge found no incriminating evidence against Jeetsingh and Jagroopsingh. They were consequently acquitted., The learned Judge found the charges against the accused-appellants duly proved. They were, therefore, convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction and sentence, the four accused have come up in appeal,
4. I have heard the learned Counsel for the appellants and the learned Public Prosecutor. I have also gone through the case file carefully.
5. Learned Counsel appearing for the accused-appellants did not challenge nor were they in a position to challenge the commission of the dacoity committed' in the bus. There is overwhelming evidence to' show that six miscreants stopped bus No. R.S.G. 737 at some distance from village Rajiyasar at about 11.00 P.M. on 5.9.1979 when it was proceeding towards Bikkaner. They were armed with lethal weapons like gun, rifle and knives. They came in a jeep and relieved the passengers of their properties at the point of weapons. PW 5 Babu Lal travelling in the bus, when tried to escape, was struck blows with the butt of the gun by one of the miscreants. The statement of PW 1 Prithvirai, PW 2 Jaisingh. PW 3 Anandram, PW 4 Mohammed Sabir, PW 5 Babu Lal, PW 5 Ramji Lal. PW T Vishamber Dayal, PW 10 Govind Lal, PW 11 Seea Ram. PW 12 Gurumeisingh, PW 17 Rai Kumar, PW 18 Mahendra Kumar and PW 21 Shri C P. Chelani leave no room to doubt that the bus was looted as alleged by the prosecution.
6. In. cases of dacoity, the evidence generally available is of three categories, viz.:
(1) the culprits are caught red-handed on the spot but this is rare because the culprits go fully armed and well prepared whereas the victims are fear-stricken and are more interested in saving their skin rather than in combating the miscreants;
(2) identification of the culprits when they are later arrested during the investigation, and
(3) discovery of the incriminating facts such as looted property, weapons used in the commission of the offence and like such other objects.
7. Here in the instant case, the incriminating evidence is of second and third categories.
8. The evidence of identification of culprits plays a very significant role and if found trustworthy is sufficient to seek their conviction. But before the identification is made the foundation of conviction it should be fair and free from all taints. The fact of identification whether of person or property, is relevant and admissible in evidence under Section 9 of the Evidence Act. The substantive evidence regarding identification is that which is given by the witness in Court during trial. But as has been consistently held a mere identification of a culprit in Court has little or no evidentiary value in the absence of prior test-identification parade. Instead of listing a catalogue of judicial, pronouncements on the point, would reproduce the relevant passages from the treatise on 'Law of Evidence' by Woodruff and Amir Ali (1979 Edition) where on pages 412 to 416, the whole legal position regarding identification has been summed up. The learned commentators observe:
Facts which establish the identity of an accused person are relevant under this section. As a general rule, the substantive evidence of a witness is the statement made in Court. The purpose of a prior test identification is to test and strengthen the trustworthiness of that. evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may be. however, exceptions to the general rule where, for example, the court is impressed by particular witness on whose testimony it can safely rely without such or other corroboration. The identification during police investigation can only be used for corroborating or contradicting the evidence of the witness concerned as given in Court.
The result of the identification parade conducted at the stage of investigation is not a piece of substantive evidence and cannot be the basis of a conviction by itself. The evidence against the accused must be the evidence given by the identifying witness in the witness-box. It, however, provides a very flood piece of corroborative evidence and greatly enhances the credibility of the evidence of identification given in Court. In fact, mere evidence of identification in court in the absence of a prior identification test is of very little consequence.
The whole idea of a test identification parade is to see if the witness who claims to have seen the accused at the time of the occurrence can identify him from amongst others without aid from any other source. If he can, then it becomes more or less certain that the evidence of identification as deposed to by the witness is genuine. Before the evidence of identification given in court can be accepted as sufficient to establish the identity of an unknown accused, it is necessary to see that there is some good corroborative evidence in support of the evidence of identification in court. And such corroborative evidence usually comes from the evidence of the test identification where the witness picks up the accused from amongst a number of persons with whom he is mixed up. True, the evidence of the witness having identified the accused at a test identification parade has no substantive value, but is very important corroboration of his testimony in court. Thus, in the absence of test identification proceedings, the mere ipse dixit of the witness that the accused was one of the culprits could not be believed at all.
9. Since the test identification parade plays a significant role in assessing the guilt of the accused, it should be held soon after the arrest of the suspect. Dealing with this aspect, the learned Authors observe on page 412 as under:
A test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the court. When the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the in-visitation is proceeding on the right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. It is important both for the investigating agency anil for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and 1hat all the necessary precautions are effectively taken. It would, in addition, be fair to the witness concerned who was a stranger to the accused because, in that event the chance of his memory fading is reduced and he is required to identify the alleged culprit soon after the occurrence. Thus, justice and airplay can be assured both to the accused and to the prosecution.
10. As regards discovery of a fact in consequence of the information furnished by the accused whilst under police custody, the information is relevant as well as admissible in evidence under Section 27 of the Evidence Act. whether such information amounts to a confession or not. Section 27 acts as a proviso to Section 26 and partially removes the embargo put on the reception of an accused's confession before police. However, the information admissible in evidence is only that much which distinctly leads to the discovery of a fact. The reason for the admissibility of the information is that the discovery by itself is a guarantee of the genuineness of the information. Thus. Section 27 is based on the doctrine of confirmation by subsequent facts. The fact discovered must have a direct link to the commission of crime. The statement of the accused leading to the discovery of stolen property constitutes a very valuable piece of evidence against him in case of dacoity. In the absence of any reasonable explanation by an accused in such a case, the discovery of the plundered property, in consequence of the information furnished by him gives rise to a presumption under Section 114 of the Evidence Act that I he took part in the dacoity.
11. In Pershedi v. State of U.P. : 1957CriLJ328 . the clothes of the deceased-victim were recovered in consequence of the information furnished by the accused whilst under police custody. Their Lordships observed:
The fact that the appellant hid the clothes of the deceased clearly indicates his guilty knowledge and is consistent only with his having murdered the deceased.
12. In Balbirsmgh v. State of Punjab : 1957CriLJ481 it was observed:
The statement of the accused that he had buried the earrings was admissible in evidence under Section 27 and the High Court was right in holding that the recovery was a circumstance which connected the accused with the crime.
13. In K. Chinnaswami Reddy v. State of Andh Pra : 3SCR412 their Lordships observed:
Where in a burglary case; the accused in police custody made a statement to the police that he would show the place where he had hidden the ornaments and that statement led to the discovery of the stolen ornaments:
Held, that the whole of the statement relates distinctly to the discovery of ornaments and is admissible under Section 27. The words 'where he. had hidden them' have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement and would therefore not be inadmissible.
14. Each accused has been convicted under Section 395 read with 397. IPC. Section 397 does not create substantive offence but merely prescribes minimum sentence for the accused who actually uses the deadly weapon or causes or attempts to cause grievous hurt to a person in the course of committing the dacoity. This section, thus, postulates individual act of the accused. It has no scope for constructive liability. The words 'the offender uses' and 'such offender shall be punished' connote that this section cannot be pressed into service against those miscreants who though committed dacoity but did not use the deadly weapon or cause grievous hurt, The individual act of an offender covered by this section does not make his fellow miscreants liable under Section 397 IPC. Sections 34 and 149, IPC have no applicability to a case covered by this section.
15. It would also be proper here to notice as to what is meant by the word 'uses' employed in Section 397, IPC. The controversy as to the meaning of 'uses' has been set at rest by their Lordships of the Supreme Court in Phool Kumar v. Delhi Administration : 3SCR917 . The actual user of the deadly weapon is not necessary. A mere displaying the deadly weapon to frighten the victim or brandishing the deadly weapon against another person in order to over-awe him while committing dacoity or robbery is sufficient to attract the provisions of Section 397. I.P.C But it must be proved as n fact that the particular accused used the weapon. It is not sufficient merely to allege that one or two or some of the dacoits were armed with deadly weapons. It is incumbent on the prosecution to prove during trial that the particular accused used the deadly weapon.
16. Turning now to the case in hand the learned trial judge convicted the accused on the evidence of the second and third categories, viz. (1) identification and (2) recovery of plundered property. Since the evidence varies from accused to accused, it would be proper to take up the case individually.
ACCUSED HABIB ALAM
17. He was arrested on 11.10.1976 vide arrest memo Ex. P 38. Thereafter he was lodged in District Jail, Ganganagar. His test identification parade was conducted on 13.10.1976 by Judicial Magistrate Shri Goswami (PW 22). A number of witnesses took part in the test identification but all of them could not correctly identify him during trial. P. W. 1 Prithviraj. PW 2 Jaisingh, PW 6 Ramjilal and PW 2 Shri C.P. Chelani correctly identified him during trial. They had also correctly identified him in the test identification parade. There is nothing to suggest that the test identification was not conducted in a fair manner. Since the test identification was conducted only one day after his arrest, the possibility of his being shown to the witnesses stands minimized. He was identified by as many as four witnesses and that eliminates the possibility of his identification by chance.
18. After identification he was taken back by the police. On 14.10.1976. the accused gave information recorded in Memo Ex. P 45. The information was that he had buried two stolen briefcases and one big and one small attach in the sand dunes which he, would get recovered. In consequence of this information the Investigating Officer and the Motbirs were taken by him to a sand dune. There the accused dug a pit and took out brief-cases etc. The briefcases contained many of the stolen articles. They were all seized and sealed and recovery memo Ex. P 46 was prepared. Out of these articles, Blanket Article 2 and pants A3 and 4 were identified by P. W. 14, Mohammed Sabir as belonging to him. Attache Article 10, Pants Article 10 (wrongly marked twice) and shirt Article 11 were identified by PW 10 Govind Lal as belonging to him. PW 6 Ramjilal also identified some of the articles as his own. The accused did not lay claim on these recovered articles.
19. The identification and the recovery of the stolen articles at his instance when taken together are sufficient to hold that he was one of the miscreants who committed the dacoity.
20. P. W. 1 Prithvirai and p. W. 2 Jaisingh stated that accused Habib Alam had a knife with him when he was standing at the gate of the bus and was collecting the stolen articles from the passengers. Since he had a knife with him when the passengers were made to get down from the bus, it amounts to the user of knife on his part. The offence under Section 395 read with Section 397. I.P.C. thus, stands fully proved against him.
21. He was arrested on 11.10.1976 vide arrest memo Ex. P 39. He was lodged in District Jail, Ganganagar. His identification parade was conducted on 13.10.1976 by judicial magistrate Shri Goswami (PW 22). PW 1 Prithvirai, PW 2 Jaisingh. PW 3 Anandram and PW 7 Vishamber Dayal correctly identified him in that parade and further correctly identified him during trial. There is no material on record from which inference can be drawn that he was shown to the witnesses before the test identification parade was held, As he was identified by as many as four witnesses, the element of chance identification is not there. After the test identification he was taken back by the police for investigation.
22. The investigating Officer deposed that on 15.10.1976 accused Niranjansingh gave him the information which he took down in Ex. P 49. In consequence of this information he took the Investigating Officer and the Motblrs to his house in village Jorki Andhewali (Punjab) and took out an attache from an almirah lying there. When the attache was opened, many of the stolen articles were found in it. One of them is wrist watch Article 12. This wrist watch has been identified by PW 18 Mahendra Kumar as belonging to him. It may be mentioned that on the back of this wrist watch name of PW 18 Mahendra Kumar has been inscribed.
23. These two sets of evidence when taken together are sufficient to establish that he was also one of the dacoits who committed dacoity in the bus.
24. There is no convincing evidence to show that he was armed with a deadly weapon much less to show that he used it. PW 1 Prithvirai stated that this accused was empty handed. I have gone through the judgment of the trial court and find nothing in it to show that he was armed with any weapon. The learned Sessions Judge did not record a finding as to what weapon was with this accused. The prosecution evidence reveals that only three of the dacoity were armed with weapons, one with a knife. the other with a revolver and the third with a reflex. The knife was with accused Habib Alam. As will be seen later on. accused Jangsingh had a rifle. According to PW 2 Jaisingh. the dacoit who had pistol with him was not among those who were facing trial. Therefore, it can be safely said that accused Niraniansingh had no weapon with him and was empty handed. The offence made out against him is, therefore, under Section 395. I.P.C. Section 397. IPC cannot be brought into mischief against him. His conviction with the aid of Section 397, I.P.C. cannot be maintained. He is guilty only under Section 395, I.P.C.
25 Accused Jangsingh too was arrested on 11.10.1976 vide arrest, memo Ex. P 40. Along with Habib Alam and Niranjansingh, he was also locked in District Jail. Ganganagar and his test identification was conducted on 13.10.1976 by Judicial Magistrate Shri Goswami (PW 22). PW 1 Prithviraj, P. W. 2 Jaisingh, P. W. 3 Anandram, P. W. 6 Ranvjila, P. W. 7 Vishamber Dayal PW 12 Gurmejsingh. PW 17 Rai Kumar and PW 21 Shri C.P. Chelani correctly identified him in the test identification. They also correctly identified him during trial. He has been identified by as many as eight witnesses and that eliminates the possibility of his chance identification. There is nothing to suggest that he was shown to these witnesses before the test identification was conducted. The test identification was carried in a fair and faithful manner.
26. After his arrest, he gave information to the Investigating Officer on 11.10.1976 recorded in Ex. P-42 and on 15.10.1976 recorded in Ex. P-51. In consequence of these information's, four wrist watches were recovered vide recovery macros Ex. P-43 and Ex. P-52 respectively from the place where he had concealed them or from the person to whom he had given them. But these wrist watches have not been proved to be stolen articles. None of the victims of dacoity deposed that the recovered watches belonged to him. As such the re-covery of these watches furnish no in-criminating material against him.
27. P. W. 5 Babu Lal tried to resist the dacoits and one of them hit him with the butt of the gun. The medical evidence is there to support his injuries. It may be gathered from the testimony of this witness that it was accused Jangsingh who had a gun with him and hit him with it.
28. The evidence of identification, which is free from suspicion, establishes that accused Jangsingh was one of the dacoits who looted the bus. He had a gun with him and hit one of the victims with it. He has been, therefore, rightly convicted under Section 395 read with Section 397, I.P.C.
29. He was arrested on 27.7.1977 i.e. nearly after 10 months of the commission of the dacoity. His test identification was conducted on 25.8.1977 by Judicial Magistrate Shri Narain Prasad (P. W. 26). He was identified by PW 1 Prithviraj. PW 2 Jaisingh. PW 5 Babu Lal and PW 7 Vishamber Dayal during trial. They also identified him correctly in the test identification parade. No recovery of looted property has been made at his instance.
30. Thus, the only evidence against him is that of identification. But the identification in his case is not sufficient to warrant his conviction.
31. As discussed earlier, the accused should be put to test identification soon after his arrest. If the delay is there, there should be sound and convincing reasons to explain it. The delayed identification is always looked upon with suspicion. The late identification provides material to the accused to contend that the delay was intentional so as to show him to the witnesses.
32. The importance of early identification need not be stressed. In Debi v. State 1952 Rai LW 223 : 1953 Cri LJ 447. the delayed identification was condemned and held not reliable. In. Gangasingh v. the State of Rajasthan 1977 Cri LR (Raj) 265 : 1978 Cri LJ 269 the suspects were put for identification in a test parade nearly after 25 days of their arrests. There was no convincing explanation for the delay from the side of the Investigating Agency. It was observed that the possibility of the accused being shown to the identifying witnesses, in a case of late test identification cannot be ruled out altogether. Here in the instant case the test identification of accused Sherjangsingh was arranged nearly after one month of his arrest. During this period fie must have been taken out for remand and other purposes in the Court and elsewhere. This delay of nearly one month has not been at all explained by the Investigating Agency. There is no corroborative evidence in any other shape which may provide his complicity in the commission of the dacoity. At any rate the case against him is not free from suspicion and above board. He is, therefore, entitled to acquittal.
33. In the result:
(A) the appeal of accused (1) Habib Alam and
(2) Jangsingh is dismissed:
(B) the appeal of accused Niranjansingh alias Chhota Singh is partly allowed. His conviction under Sections 395/397 is altered to that under Sections 395, I.P.C. and his sentence is reduced form 7 years to five years. and
(C)the appeal of accused Sherjangsingh alias Shersingh is allowed. His conviction and sentence under Sections 395/397, I.P.C. are set aside and he is acquitted. He is undergoing the sentence and shall be forthwith set at liberty if not wanted in any other case.
35. The appeal is accordingly disposed of in the manner indicated above.