M.L. Jain, J.
1. This is an appeal against the judgment passed by the learned Additional Sessions Judge. Gangapur City dated June 30, 1977. The appellants were convicted and sentenced by him as fallows:
(1) Under Section 395 IPC to rigorous imprisonment for 5 years and a fineof Rs. 500/- each, in default thereof to rigorousimprisonment for six months.(2) under Section 323 IPC to rigorous imprisonment for six months and a fineof Rs. 250/- each, in default thereof to undergorigorous imprisonment for 2 months.
The substantive sentences of imprisonment were directed to run concurrently.
2. The case against the accused-appellants is that they, along with Hari Singh & 4 others, committed house trespass by night in the house of Pooran Lal Gera, A.S.M. Gangapur City, on the night intervening December 14 and 15, 1974. They inflicted injuries on him, on his wife and his sister-in-law, and carried away their wrist watches and an amount of Rs. 50/. They removed a box also, but left it along with its contents outside the house.
3. Upon a report of the occurrence having been lodged by one Onkar Datt Sharma, the police swung into action but could not trace the culprits. After investigation, it put up a challan against four persons on 4th December, 1975, with the allegation that on the same night of 14th 15th December, 1974, the same gang had committed another theft in Kinpada, Gangapur City, and Mahu Kalan One Nathiva, was arrested and the police gave final report on 23rd May, 1975 Later on Sistia by and Hari Singh were arrested in some other case of Jaipur and gave information about the theft at Gangapur City. The accused by then bad been arrested in the Mahu theft case in police Station Gadh Moran. They were obtained in the present case and put up or test identification on 3rd October, 1975. The case was then committed to the court of sessions. Out of them, one Hari Singh was discharged by the learned Additional Sessions Judge, but he convicted the present appellants and sentenced them as aforesaid upon the following pieces of evidence:
(1) Medical evidence, and
(2) the identification made by the witnesses in the court corroborated by test identification.
The result of the test identification had been that Gurubachan Singh whose house is opposite that of the complainant, separated by a road, and claims to have seen the dacoits, identified appellant Kartar and appellant Ali. Other witness Shyam Sunder Mishra who was also with Gurubachan Singh, identified all the three appellants The complainant Pooranmal Gera identified Ram Swaroop and Ali, The learned Additional Sessions Judge held that the test-identification, so conducted, corroborates the evidence of the prosecution witnesses.
4. The learned Counsel for the appellants has assailed the judgment chiefly on the ground that the two eye witnesses Gurubachan Singh & Mishra were got up witnesses and their evidence suffers from several material omissions. The accused were not known before hand to the witnesses and that the occurrence hiving taken place in dark night, it was not possible for them to have axed the identity of the culprit. The second ground of attack was that no recovery has been effected either of the wrist watches or of the money and it cannot even be said that any theft had taken place The prosecution has also led evidence that these accused were also alleged to have committed dacoity in Mahu kalan and Jaipur on the same night. It was not possible for these accused persons to have committed dacoit in Gangapur and Jaipur in the same night. According to the police challan the basis of the case is the statement of sitia and Hari Singh but sitia was not examined & Hari Singh was discharge. It was urged that the whole case was false
5. The learned Counsel also challenged the test identification. It was pointed out by him that Gurubachan Singh had identified Ali and Kartar but he failed to identify all before the court the accused themselves have been arrested in 3rd October 1975 the Magistrate has deposed that Shyam Sunder identified one wrong person and Pooranlal Gera identified four persons wrongly. The results of test identification were quite unsatisfactory &could; not provide corroboration. The last Ground of attack was that according to the evidence of complainant Pooranlal Gera, he saw only there thieves inside his house. He became unconscious when he was beaten by the accused the learned Additional Sessions judge held them all guilty by the when he heard the cries of Mst. Kavita wife Pooranlal Gera who was knocking the door of his neighbour Misra, he opened the door. By that time Misra's Son Shyam Sunder PW. 3 had Also came out Road lights were on and the witness saw 7/8 persons inside the boundary wall of the house of Pooranlal Gera When he challenged them, they abused him and then Gurubachan Singh Went inside the house and brought a lathi. By that Time the thieves had begun to run away. He claims to have recognized 2/3 persons two thieves were outside the house the witnesses claim to have seen them from a distance of 2/3 metes. He stated be from the police that the thief had administered a Danda in his legs but he resiled from that statement before the court Before the police he stated that the thieves had turbans in their heads , but he resiled from this statement also it was contended that not only it was not possible for Gurubachan Singh to be able to fix the identity of the accused from a distance but his statement regarding the number of the thieves cannot be believed because by the time he had come the thieves bed begun to run away. Shyam sunder Mishra PW. 3 has deposed that when he ran towards the house of Shri Gera and reached his gate, the thieves administered a dread on his leg. Gurubachan Singh was also with him. He claims to have been able to fix the identity of the accused at the time when he was hit in the been able to fix the identity of the accused at the time when he was hit in the leg. In cross Examination he also stated that he had seen Ram Swaroop beating Gera and if was Ram Swaroop who threw the Danda at him. He even identified in the test parade a person wrongly. He has also said that in the verandah in the verandah. It was submitted that this evidence is unreliable the accused had beaten Mrs. Kavita go inside the house Now it was not possible that the thieves will let Mst. Kavita go across the road, knock the doors of the witness and waited in the verandah by the time the witnesses came out went in to bring lathi and come close to them in the verandah.
6. It was then urged that there is no reliable evidence that the accused were 5 or more in number and therefore the appellants have been wrongly convicted under Section 395 IPC. According to Pooranlal Gera PW 9, the story is like this. He was sleeping in one of the rooms of his quarter and in the next room were sleeping his wife Kavita and his sister-in law Mst. Saroj. At about 1 a.m., he came out and heard cries of his wife. He saw three persons in the house, one of them delivered a lathy blow on his head, and thereafter, he became unconscious He claims that he was able to fix the identity of the appellants when he came out of his room. He also stated that the thieves had removed his wrist witch from his hand and his wife's watch out of almirah along with Rs. 50/-. The attache case was also taken away by the accused, but they threw it away outside the door along with its contents. The learned accurse submitted that the police had not recorded the statement of this witness under Section 161 OPC and in the absence of such statements, the entire evidence of Pooranlal Gera should be excluded from consideration. He also pointed out that the prosecution has withheld Kavita and her sitar and did not care to produce the next door neighbor of Gera An inference adverse to the prosecution should be drawn. The learned Counsel, therefore, submitted that no case was made out against the appellants Even a case of theft was not established mush less a dacoity.
7. I have considered the record of the case and the judgment of the lower court in this light. In Saktu v. State of U.P. : AIR1973SC760 where it was proved that five or more persons took part in the dacoity but only three were convicted under Section 395 IPC, the convictions were upheld as legal But I must say that from the evidence of the prosecutions I am not satisfied that the prosecution has been able to prove that the thieves ware five or more in number. Gera has seen only three persons and it was after the thieves had brazen Gera and his wife that Mst. Kavita. went to that he use of her neighbour opposite and when Guruhachan Singh came along with Shyam Sunder Mishra, then the thieves had already escaped. Eyen if it were believed en the depositions of the two witnesses that there were 7/8 persons, there is no warrant for saying that all those persons were members of the gang of dacoits But I do not agree with the contention that simply because no recovery has been effected, Conference of theft can be made. It is also not possibly to hold that these pet sons were not the thieves because they were also alleged to have been involved in a case of dacoity, which had taken place the same night in Manu Kalan. There is no evidence that these persons were so involved. They were merely suspected. More over, for the thieves of the Sansi Community to which the appellants belonged it is not difficult to commit such crimes in one right at two places separated by several miles It is absolute incorrect to say that the accused were alleged to have committed the came the same night in Jaipur also. Mst. Kavita was not produced because she became a mental case. I am unable to draw adverse inference because her sister or the next door neighbour could not be produced We do not know whether the neighbour was or was not there at that time.
8. In respect of the test identification the learned Counsel for the appellant cited Budhsen v. State of U.P. : 1970CriLJ1149 and Ashrofi v. State 0043/1961 : AIR1961All153 in which it was held that (1) the substantive evidence with regard to the identification of the accused is the statement of a witness made in the court; (2) since such evidence from its very nature is inherently of a weak character it is a safe rule of prudence to look for corroboration in the form of earlier test identification unless a particular witness is such as his testimony can be safely relied upon without such consideration; (3) test identification belongs to investigation stage and is generally held during investigation in order to satisfy the investigation officer of the bonafides of the witnesses and to provide corroboration later at the trial; (4) such test identification should be held without much delay and the witness must have had no opportunity of seeing the accused after the commission of the crime and before test identification; (ii) the number of persons mixed with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar; (6) test identification is a statement of a witness either express or implied that the person pointed out by him was concerned in the crime; (7) and person can conduct a test identification but when con ducted by the police officer, it would be governed by Section 162 Cr.P.C. but if conducted by a Magistrate, then by Section 164 Cr.P.C. & (8) if a person is identified by some and nit by some, there is no set-off and it cannot be deemed that he was identified by none.
9. In the light of these observations, let us turn to examine the evidence of identification in this case. It is as follows:
Witness Court Test
1. Gurubachansingh PW. 2 Ramswaroop Ali
Kartar Singh Kartar Singh
2. Shyam Sunder PW. 3 RamSwaroop Ram Swaroop
Kartar Singh Kartar Singh
3. Pooran Lal Gera PW. 9 Ram Swaroop Ram Swaroop
Now, the case of the witness PW 2 and PW. 3 is that when they were approaching the house of Gera, the thieves had begun to flee. They could not have seen the thieves who were inside the house and yet Shyam Sunder PW. 3 deposed that Ramswaroop was the person who was beating Gera. I will, therefore, not attach any importance to the evidence of identification made by these two witnesses either in the court or in the test parade. But one ha no reason to discard the identification made by the victim Pooranlal PW 9 who saw the accused in house and who was attacked by them along with the two women in the house. He identified two accused both in the court and earlier in the test parade. He had received two lacerations on the head and two on tar and must have been able to fix the identity of (he accused.
10. The learned Counsel for the appellants submitted that the state-men of Gera should be totally excluded as the police officer had failed to record his statement under Section 161 Cr.P.C. He relied upon Kottaya v. Emperor A.I.R. 1947 P.C. 67. and Noor Khan v. State of Rajasthan : 1964CriLJ167 . It was held in these cases that where the statement of a witness has been recorded by the police officer, failure to supply the accused with a copy thereof under Section 173 CrPC (Old) shall not vitiate the trial unless prejudice has been caused to the accused. But two things have to be remembered in this connection, (1) that he police officer is not bound to reduce the statement in writing, and (2) that the duty to supply a copy has now been shifted from the police to the Magistrate No case has been cited which has bearing on the, trial where the police officer has not cared to record the statement of any witness. The contention of the learned Counsel is therefore rejected.
11. My conclusion therefore is that the prosecution has been able to make out case only against Ram Swaroop and Ali and that too under Section 323, IPC. But I see no reason to reduce the sentence.
12. Consequently, I direct-
(1) Appellant Kartar Singh shall be acquitted of both the charges' and his sentence shall be set aside.
(2) Ali & Ram was opponents are acquitted of an offence under, Section 395 IPC but shall stand convicted under Section 392 I.P.C. but the sentence shall remain the same as was awarded by the court below. Their convictions and sentences under Section 323 IPC are maintained.
13. Decision of the appeal accordingly.