Cases referred:

1. Ram Kishan v. State of M.P., 1981 M.P. L.J. 755.

2. Bari Shankar and another v. The State of M.P., 1977 Cr. L.R. (M.P.) 316.

G.C. Gupta, J. - This judgment shall also govern the disposal of Criminal Appeal No. 530 of 1984 (Nanhu v. State of M.P.), which arises out of the same judgment and involves common question of fact and law.

2. The two appellants in these two appeals have been found guilty of offence punishable under section 392/397, Indian Penal Code and section 25 of Arms Act read with section 13 of M.P. Dakaiti Aur Vyapsharan Prabhavit Kshetra Adhiniyam (hereinafter referred to as the 'Adhiniyam') and sentenced to seven years' R.I. by judgment dated 23.3.1984, passed by Shri S.K. Tiwari, Special Judge. Sagar, in Special Criminal Case No. 87 of 1983.

3. Prosecution case against the appellants was that on 9.10.1983, when Achchelal (P.W. 4), accompanied by his daughter-in-law Damoti (P.W. 5), was going to his village Piparia on foot, the two appellants, who were armed with country-made pistols apprehended them and robbed Damoti of her silver ornaments which she was wearing at that time. It is also alleged that before the aforesaid robbery, Achchelal had met Gariba (P.W. 6) on his way and, hence, Gariba had seen the incident. Report of the incident was lodged at police-station Deori on 10.10.1983 at. 3.00 p m. (Ex. P. 4). The two appellants were arrested on 26.10.1983 and stolen property recovered at their instance. Later on, an identification parade was held on 7.11.1983 (Ex. P.2), wherein the witnesses recognized the two appellants. Thereafter, the two appellants were put on trial for offences as aforesaid.

4. The learned Special Judge, relying on evidence of Achchelal (P.W. 4), Damoti (P.W. 5) and Gariba (P.W. 6), held that the two appellants had robbed Damoti by using country made pistol. The learned Judge also held that the stolen articles were seized from the possession of the appellants. The objection of the defence that identification of the appellants was not correct was rejected. That is how the appellants were found guilty and sentenced.

5. Submission of the learned counsel for the appellants is that identification parade has been held after unexplained delay of 13 days and hence it has no legal value. In the absence of legal corroboration, identification of the witnesses in the Court is not sufficient to connect the two appellants with the robbery. As far as seizure is concerned, it is submitted that evidence of Latori (P.W. 7) sufficiently proves that no statement was given by these appellants and, therefore the recovery could not be connected with the appellants. Even identification of stolen articles is said to be illegal. The learned Government Advocate supported the conviction and sentence with his usual vehemence by submitting that the case relates to Sagar District which is becoming notorious for road side robberies and therefore, prayed that this Court should not interfere with the conviction of the appellants.

6. Before considering the submissions of the parties on merits, it may be observed that the suggestion that Sagar District is gradually becoming notorious for road-side robberies, is without any substance. Road-side robberies are not common to this District alone and this Court is flooded with cases of such incidents in other parts of the State as well. Inspite of it, the anxiety of the respondent State to root out this social evil, is appreciated. Indeed, this court is anxious to supplement the effort of the respondent State in this behalf; provided, in so doing, this Court does not cross its legal limits and does no injustice with anyone. It must be emphasized that every effort to establish the rule of law has to be taken in accordance with law and has to confirm to the established legal standards. Neither the State would be justified in making a request to this court to apply the law in certain cases differently, nor this Court would be able to do so in the context of its commitment to do justice in accordance with law. Under the circumstances, the fact that this case arose in the District of Sagar, has no relevance and can certainly not be accepted as a justification for treating these appellants differently.

7. It may, therefore, be examined if the two appellants have been properly identified as the persons committing robbery? That robbery had been committed on the date of incident, and Damoti (P.W. 5) robbed of her silver ornaments which she was wearing, is sufficiently proved by the evidence of P.W. 4 Achchelal, P.W. 5 Damoti and P.W. 6 Gariba. It is also clearly established by the evidence of these three witnesses that the robbers were armed with pistol and had used the same during the course of robbery. It is also established by the evidence of these witnesses that Articles A-1 to A-8 silver Lachcha, Article B-1 and B-2 (Bangri and Article C Takawar, were the Silver ornaments which had been looted from Damoti (P.W. 5). These appellants do not claim ownership of these ornaments and the fact that Damoti had identified them, is sufficient to hold that they were the ornaments which were looted from her possession. Ex. P. 8 is the memo indicating that the two appellants alongwith one Prabhu, were arrested on 26.10.1983 at 16.40 hours at village Dhullahar. Latori (P.W. 7) and Narmadaprasad (not examined) were the witnesses their arrest. Lalmani Sharma (P.W. 9) was the police official arresting the appellants. Identification memo (Ex. P-2i indicates that identification parade was held on 7.11. 1983 at 4.55 p.m. at First Class District Jail, Sagar by Shri A.J. Quraishi, Naib-Tahsildar, Sagar. In this test identification parade, besides two appellants, twelve persons were mixed with them and witnesses Achchelal, Damoti and Gariba correctly identified these two appellants. This test identification is said to be valueless as (i) it was delayed and (ii) necessary precautions were not taken. As far as delay is concerned, Lalmani Sharma (P.W. 9) the Investigating Officer, had stated that he had requested on 31.10.1983 the Tehsildar to hold the test identification parade and the Tahsildar had fixed 7.11.1983 for the purpose (Para 6). If this evidence is to be believed, it would appear that Tahsildar was approached for holding the test identification parade. The Tahsildar, however, has not held the identification parade. Shri A. J. Quraishi (P.W. 2) was the Naib Tahsildar and not the Tahsildar. There is nothing on record to indicate when the Naib Tahsildar was approached for holding the test identification parade. It is, therefore, clear that there is no explanation whatsoever about the delay in holding the test identification parade. Value of holding the test identification parade cannot be under-estimated. Main purpose of holding such parades is to establish identify of persons concerned in the offence who are not previously known to the witnesses. Such parades are intended to satisfy. Investigating Officers of the bona fides of the witnesses and to further furnish evidence to corroborate their testimony in the Court. That is the reason why it has been emphasised that test identification parades should be held at the earliest opportunity, because an early opportunity to identify the offenders, tends to minimise the chances of the memory of the identifying witnesses failing away due to long lapse of time. Under the circumstances, if no test identification has been held or the identification held is found to be defective, the identification of offenders in the Court for the first time, would serve no purpose. In such a case, it would be reasonable to hold that the person identifying the culprit in the Court, after a long lapse of time, was bound to make mistakes and his identification, in the absence of previous test identification parade, would be unreliable. Inspite of it, no hard and fast rule has been laid down in this behalf and each case is required to be decided on the basis of its own facts and circumstances.

8. In Ramkishan v. State of M.P.1, the appellants were arrested on 2.12.1975 and test identification parade was held on 10.1.1976. There was no explanation for the delay in holding the Parade. This court, relying on an earlier decision in Bari Shanker and another v. The State of M.P.2, held that the test identification parade held by the prosecution, was of no help to hold that the appellants were the persons who were responsible for committing the alleged offence. The facts of the present case are very much similar to this case and therefore, there is no reason why the aforesaid law should not govern these appeals also. Under the circumstances, no reliance can be placed on the test identification parade held on 7.11.1983 vide Ex. P-2.

9. Evidence of witnesses about identification of the two appellants during the test identification parade, is also not reliable. Damoti P.W. 5 in her statement (Para 4), has admitted that the two appellants were wearing the same clothes during the test identification parade which they were wearing at the time of robbery. She further admitted that she recognized the two appellants because of these clothes. It is true that she has also stated that she recognized the two appellants by seeing their faces also, but her admission that she recognized the two appellants because of their clothes, is a very vital admission on the part of this witness and cannot be ignored. Garibe (P.W. 6), in para 3 of his statement, had said that the two appellants were the same clothes during the parade as they wore wearing at the time of robbery, while the other persons mixed with them, were wearing jail clothes. This evidence sufficiently indicates that the two appellants were conspicuous because of the clothes and this had been an important factor in their identification. It cannot be seriously disputed that test identification parade is a serious formality intended to achieve an important purpose and hence, it is required to be done with utmost care. All prominent marks discernible on the accused persons have to be concealed so that the memory test intended to be done by holding the parade leads to an unfailing result. Clothing is certainly one of the identifying marks in the instant case, clothes of these appellants had helped the witnesses in spotting them. Under the circumstances, no reliance can be placed on the test identification parade.

10. The witnesses identifying the two appellants in the court, have given their evidence after about six months and, therefore, their Court identification can also not be accepted as sufficient to connect the two appellants with the robbery. Under the circumstances, conviction of the appellants for offence punishable under section 392/397, I.P.C. cannot be sustained. They are, therefore, acquitted of these offences.

11. The aforesaid would require examination of seizure of articles and unlicensed arms from the appellants. Exs. P-5 and P-6 are the seizure-memos indicating stolen ornaments and unlicensed gun from the two appellants. Lalmani Sharma (P. W. 9) is the Officer effecting the seizure in the presence of Latori (P.W. 7). Latori (P.W. 7) has admitted his signatures on these seizure-memos and has deposed that the goods were seized at the instance of the two appellants. The only criticism of his statement is that in para 2 of his statement, he could not definitely state if the appellants had given any statement. This, however, is not sufficient to discredit his version. He has clearly and specifically stated that appellant Jamna had produced Takewar and Nanhu had produced Lachcha. There is nothing in his cross-examination to cast any doubt about this seizure. The seizure has been consequential to the statements given by these two appellants vide Ex. P. 10 and P. 11. Lalmani Sharma (P.W. 9), who has recorded this statement, had clearly and specifically stated that these two appellants had given these statements. Evidence of P.W. 7 latori that he does not know whether the two appellants gave such statement or not, is, by itself, not sufficient to discredit his statements in Exs. P. 10 and P. 11, particularly when no questions were asked to Latori about these documents. Under the circumstances, it is clear that on the statements of the two appellants, not only the stolen ornaments but also unlicensed gun and cartridges were seized from their possession. As a necessary consequence, conviction of these appellants for offences under section 25(1)(a) of Arms Act, read with section 13 of the Adhiniyam, is fully justified. Similarly, though these appellants would not be guilty of offence punishable under section 392/397, I.P.C. they would be guilty of offence punishable under section 411, I.P.C. as persons in possession of the stolen property.

12. As far as sentence is concerned, the learned Special Judge has inflicted a punishment of three years' R. I. for offence under section 25(1)(a) of Arms Act, read with section 13 of the Adhiniyam. This sentence, in the context of facts and circumstances of the case, is the minimum and fully justified-needing no interference. As far as sentence for offence under section 411, I.P.C. is concerned, 1½ years' R.I. would meet the ends of justice. The appellants are, therefore, sentenced to 1½ years' R.I. for offence punishable under section 411, I.P.C. The two sentences shall run concurrently.

13. In view of the discussion aforesaid, the appeal partly succeeds and is allowed as stated above.

Appeal partly allowed.