P.D. Kudal, J.
1. This is an appeal filed by the accused appellant Bhagwana who has been convicted by the learned Additional Sessions Judge No. 2 Sri Ganganagar, to imprisonment for life under Section 396 IPC by his judgment dated 7/6/1971.
2. The brief facts of the prosecution case are that the accused Nanda Bhagwana, Sampatia and Kishoriya were sent for trial under Sections 396, 397 and 398, IPC for committing dacoity at the house of Kishna Ram situated in 1 KSR, on the night intervening 25-1-1970, 26/1/1970. The learned Addl. Sessions Judge convicted the accused appellant Bhagwana, as stated above, but acquitted the remaining three accused persons On that night, Mani Ram son of Kishna Ram, and his wife were sleeping in a 'Kotha' Megha Ram, his brother, was sleeping outside the 'hada' which was meant for the catle Kishna Ram and his wife were sleeping in another 'kotha'. Mani Ram heard the cries of Megha Ram 'mare re mare re' at about mid eight. He opened the door of his 'kotha' and saw two dacoi a standing outside the door. On of the dacoits was armed with a pistol, and had a torch also. The other dacoi had a 'lathi'. Mani Ram warned to come out of the kotha' but he was pushed to his 'charpai'. Both the dacoits came inside the room. The torch was flashed and a 'Hanery Sandoz' watch was taken out from Mani Ram's pocket. Mani Ram was also beaten. The two dacoits then took away ornaments from the person of his wife. Two more dacoits entered the 'kotha after some time. One of these two dacoits was armed with a 'gandasa' Then the 'kotha' was bolted from outside, and these dacoits went away Mani Ram saw seven or eight dacoits. FIR Ex. P/1 was lodged by Mani Ram son of Rati Ram, on 26/1/1970, at 8 a.m. In the FIR it was stated by him that the accused were said to be young and speaking Punjabi language. The accused were committed to the Court of Sessions, for trial, by the committing Court on 21/10/1970, The learned Additional Sessions Judge, who tried the case, framed fresh charges on 11/1/1971. The accused pleaded not guilty, and claimed to be tried.
3. PW. 1 Mani Ram son of Rati Ram stated that Kishna Ram, deceased, was his father-in-law. He is the resident of village Sheopura which is at a distance of 14 murbas from the ''dhani' of Kishna Ram, where the dacoity took place When he was informed by the 'kotwal' of the village, he came to the 'dhani' of Kishna Ram, and then lodged the FIR Ex. P1. In cross examination, he stated the Megha Ram did not tell him the age of dacoits. He did not mention in the FIR Ex. P1 that the dacoits were young in age.
4. PW. 2 Mani Ram son of Kishna Ram stated that the night was moon let. and he identified the dacoi holding the pistol by his face. His. father and mother were sleeping inside the 'kotha'. He heard be cries of his brother Megha Ram, 'mare re mare re'. Whereupon he opened the door of the 'kotha', and saw two persons standing outside the door. One of these two person was armed with a pistol, and had a torch with him, and the other was armed with a 'lathi''. He tried to come rut of the 'kotha', but the dacoit holding the pistol threatened to kill him. He was then pushed to his 'charpai'. Both the dacoits came inside the 'kotha'' and flashed torch light, and took away his 'Hanery Sandoz' watch from 'be pocket. The ornaments of his wife were also taken from her person and from the box. He identified the accused appellant Bhagwana as the person who wan armed with a 'gandasa'. Bhagwana struck Mani Ram with a 'gandasa' blow as a result of which the handle of the 'gandasa' broke, and the blade fell down in the lap of Mani Ram. Two other dacoits came after some time. All the four dacoits left after bolting the door of the 'kotha'' from outside Mani Ram then saw seven or eight dacoits. including these four, going towards the 'dhani' of Pandits. In cross examination, the witness has stated that only four dacoits entered his 'kotha', and there was no light during in his 'kotha'. He identified Bhagwana very well in torch light. Bhagwana was then bare headed Bhagwana was putting on a 'tehmat', and a shirt. At the time of commission of the dacoity, he did not notice any extract (phoolia) in the left eye of Bhagwana. He also did not notice any special features on the face of Bhagwana at the time of occurrence. He did not give any details about the personality of Bhagwana before the Magistrate. He had gone to Hanumangarh for the identification proceedings The persons who were mixed in the identification parade were clean shaved, but had moustaches. About seven or eight persons were mixed Some of the persons mixed were not newly shaved. He has further stated that Bhagwana did not snatch the ornaments of his wife, but he could not say which of the remaining dacoits did so.
5. PW. 3 Megha Ram stated that one of the dacoits stood near him. He recognised the dacoits in the moon light The dacoit Bhagwana was having a 'gandasa', and the other dacoit had a ''sela'. The witness has denied that he had stated before the police, vide Ex. D4, that he could recognise only two of the four dacoits At the time of the occurrence, two or four accused covered their heads with 'chaddar', and the rest were bare headed.
6. PW. 6 Prem Prakash is a Sarraf. He has stated that the ornaments including a pair of silver 'newaris' having 'ghunghurus' were recovered from the shop of Prithvi Raj Sarraf in his presence.
7. PW. 7 Mst. Mahasar is the wife of PW. 2 Mani Ram. She heard the cries of Megha Ram, 'mar diya mar diya'. Her husband opened the door and say two dacoits standing. The dacoit Bhagwana had a 'gandasa'. She could recognise Bhagwana and Kishori in that night. The dacoit took away her gold ear rings and gold necklace of five 'mohars' from her body. From the box the dacoits took away her silver 'newrai'. 'kanakti' and gold nosering. She had identified the pair of silver 'newaris' Article 7 in the identification proceedings. These 'newaris' were kept in the room occupied by her mother-in-law. There was no special marks of identification on these 'newaris'. She did not come out of the room during the dacoity. She cannot recognise, the dacoit who had a torch and his companion who first entered the room. She was not nerveous during the 'marpeet'. She did not notice any special features of the dacoits.
8. PW. 8 Ramjas is the 'Adhyakh' of the Nayay Panchayat, Rampura. He had mixed two pairs of ''newaris'. The witness PW. 7 Mst. Mahasar had correctly identified the pair of 'newaris'. He had mixed similar 'newaris', but had not given the description of the same in Ex. R 2. The 'newaris', identified by the witness had most of the 'ghunghurus' missing, and it was not so with the other 'newaris'.
9. PW. 15 Shri S.D. Shrivastava was the Sub Divisional Magistrate on 13.3.70 at Hanumangarh. He conducted the identification parade of the accused Bhagwana in Hanumangarh, Sub-Tehsil. He mixed ten under trials with Bhagwana. In cross examination, be stated the accused Bhagwana had a (sic) (phoolia) in his left eye, and he had two other prominent injury marks over his face. He had made a note of it in Ex. R10. All these characteristics of Bhagwana were concealed and some marks of concealment were made on the face of other under trials, At the time of identifications he accused Bhagwana had no other peculiar characteristic on his face. He saw, in The Court, two dark spots on the cheeks of Bhagwana. But these marks were not there at the time of identification proceedings.
10. PW. 21 Shyam Das has stated that the accused Bhagwana had a catract (phoolia) in the left eye, and therefore, be had got covered the left eyes of the other seven under trials and Bhagwana. He did not take any precaution regarding the injury which was on the nose of Bhagwana during the the identification proceedings. Neither he took any precaution regarding the prominent marks on his checks, or on the nose. He also did not take any precaution regarding the injury below the lower lip of Bhagwana. He was Magistrate on 11.3.1970, when the identification proceeding were conducted.
11. The statement of the accused Bhagwana under Section 342 Cr.PC was recorded on 15.4.1971 His contention was that he had been wrongly implicated, and that be was not involved in the dacoity. He examined DW. 1 Darbar Lal and DW. 2 Madan Lal in support of his case.
12. On behalf of the accused-appellant, it was contended that the prosecution has miserably failed to establish any case against the accused-appellant. It was contended that the notice challaned four persons out of whom three were acquitted by the learned Additional Sessions Judge. It was further contended that the identification proceeding were totally falsein as much Bhagwana had catract (phoolia) in his left eye. ft was so prominent that he could be easily sorted out from the rest. It was also contended that Bhagwana had prominent marks on his cheeks and under the lower lip. He had also injuries on his nose. While the identification proceedings were being conducted, it was contended that no precautions were taken to mix people of the similar marks. It was also contended that the accused Bhagwana after haying been arrested was released by the police to trace out Nanda, as would be evident from Ex. DR. 2 dated 3.3.1970. As he could not face out Nanda, he was again arrested after about a week's time. It was also contended that none of the prosecution witnesses identified Bhagwana during the darkness, and if they had actually identified Bhagwana, then these prominent marks could not have escaped their attention. It was also contended that there was darkness in the ''kotha' of Mani Ram PW. 2, and that there was no other source of light, The only source was the flash of the torch. It was contended that the flash of the torch would be either on the victims, or on the ornaments and property which the dacoits wanted to take away, The flash of the torch shall not be on the faces of the dacoits. It, was also contended that when the other three persons were acquitted, it is exceedingly dicffiult to hold that one single individual would commit the dacoity.
13. The learned Public Prosecutor. Dr. Tiwari was also heard.
14. The identification proceedings both as regards the two 'newaris', and as regards the identity of the accused Bhagwana seem to be per se defective. Bhagwana had some prominent marks on his face, such as, a catract (phoolia) in the left eye, prominent marks on chins, injury on the nose and a mark beneath the lower lip. None of the prosecution witness could notice any of these marks during the course of dacoity PW/21 Shyam Das, Magistrate, First Class, has categorically stated that no precautions were taken to hide the prominent chin marks or the injuries on the nose, or the mark beneath the lower lip. The special feature in the case is that the accused Bhagwana was released by the police, and he was asked to get the accused Nanda arrested. But as he could not bring Nanda, be was re-arrested after about a week's time. During this time, Bhagwana could be seen and watched by anybody.
15. The only ornament relevant to the present accused appellant is the recovery of a pair of silver 'newaris'. Most of the silver 'ghuoghurus' of these 'newaris' were missing; but the other 'newaris', which were mixed, had no missing ghuaghurus'. Under such circumstances, the identification of Bhagwana, accused appellant, as well as the silver 'newaris' is hardly worthy of credence. In Yashwant v. State of Maharashtra : 1SCR291 , it was held that the suspect seen by identifying witnesses before a test identification parade, and no person similar in appearance included in parade of only five persons the suspect with tape on his neck, which the other persons did not have, the identification proceedings were rightly, described by the trial Court as a farce. In State of Orissa v. Maheswar : AIR1964Ori37 , it was held that the purpose of test identification is to test the evidence in court. The safe rule is that the sworn testimony of the 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 proceeding. There may, however, 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 proceeding. In such circumstances identification evidence should always be examined with great care.
16. In Ram Shankar v. State of U.P. : 1956CriLJ822 , it has been held as under:
Six accused were placed on trial under charge that they bed committed dacoity. Of these six accused three belonged to the complainant's village while the remaining three belonged to an adjoining village. All the six accused were well-known to the complainant's party and were actively opposed to the complainant's party The Sessions Judge convicted all the six under Section 395, Penal Code.
In appeal the High Court acquitted the three accused belonging to the complainant's village on the ground that evidence against them was tainted testimony & it was not probable that they would commit dacoity in their own village without raking the least precaution to conceal their identity. The High Court did not give the benefit of this observation to the remaining three accused and convicted them under Section 395:
Held that the High Court erred in making a distinction between the three accused belonging to the complainant's village and the remaining three belonging to the adjoining village. The High Court having come to the conclusion that three out of the six accused were not guilty, should have gone into the question whether there was satisfactory evidence to show that that three remaining accused could be convicted under Section 395, Penal Code, on the charge as framed.
In any event the three remaining accused could be convicted of the lesser offence of robbery under Section 392. Penal Code if there was evidence to show that they had committed acts of theft and used violence while committing the theft. In such a situation their individual acts in connection with the alleged occurrence had to be considered. That also had not been done. The evidence led on behalf of the prosecution had not sought to bring home to each individual accused the part played by him. This would also necessitate a retrial. But as the accused had already been in jail for a little less than three years, which period of imprisonment might have been enough as a sentence Under Section 392, retrial should not be ordered in the interests of justice. The evidence against the accused not being above serious criticism, they should be acquitted.
17. In Hindu Singh v. The State 1952 RLW 130, it was held that ordinarily people are so much striken with terror at the time of a dacoity in which a considerable amount of property is looted, and guns fire and lathies used that it will be very difficult to base conviction only on the statement of a very small number of witnesses are not free from doubt.
18. Taking the over all view of the prosecution case, it is difficult to hold the the silver 'newari' has been correctly identified. Similarly, it is exceedingly difficult to hold that the accused-appellant Bhagwana has been correctly identified. It is exteremely unfortunate that in a dacoity where one person has lost him life and the other person was injured, the guilt could not be brought home to the accused.
19. Under such circumstances, the accused appellant Bhagwana is entitled to the benefit of doubt.
20. For the reasons stated above, the appeal filed by the accused Bhagwana is hereby allowed He is acquitted of the charges under Sections 396, 397 and 393, IPC. The conviction and sentence are accordingly set aside He shall be released forthwith from custody, if not required in any other case.