Ganga Nath and Yorker, JJ.:— This is an appeal by the Local Government against the acquittal of Debi Charan alias Debi Prasad, Prem Shankar, Randhir Singh, Kedar alias Gulzari and Ram Ratan. Kedar and Ram Ratan have been absconding and notice of the appeal has not been served on them. So the appeal against them is not disposed of. The Local Government has also filed an application in revision for the enhancement of the sentence of Debi Dayal. These persons were prosecuted under section 395 of the Indian Penal Code for dacoity committed in the house of Misri Lal in village Rannupur, district Fatehpur. Debi Dayal was prosecuted also under section 19(f) of the Arms Act.

The case for the prosecution was that on the 7th of June, 1940, between 10 and 11 p.m a dacoity was committed in the house of Misri Lal. A fight took place between the dacoits and the villagers of Rannupur and the neighbouring village Lohri Sarai who came to Misri Lal's house on hearing an alarm raised by Misri Lal and Barua who was sleeping on the roof of Misri Lal's house. Debi Dayal received an injury on his head and fell down. He was arrested by the villagers and taken to the police station. A loaded revolver was found in his possession. The learned Sessions Judge acquitted Debi Charan, Prem Shankar and Randhir Singh but convicted Debi Dayal under sections 395 of the Indian Penal Code and 19(f) of the Arms Act, sentencing him to four years' rigorous imprisonment under section 395 and to six months' rigorous imprisonment under section (19)(f) of the Arms Act. The sentences were to run consecutively.

There can be no doubt about the occurrence of the dacoity in the house of Misri Lal. The prosecution has examined a number of witnesses including Misri Lal, who have all deposed as to how the dacoits came and committed the dacoity. At the time of the occurrence Misri Lal was sitting smoking with some persons near his house. Some dacoits approached him and told him that the police had come and the sub-inspector wanted him. Misri Lal came with them to his house but before he reached his house he suspected that these persons were dacoits. He ran away and raised an alarm. After the report, the sub-inspector came and inspected the place. He found a box broken open and things lying scattered inside the house of Misri Lal.

The only question is whether the participation of Debi Charan, Prem Shankar and Randhir Singh in the dacoity is proved. Thirteen eye-witnesses have been produced by the prosecution who have identified these persons. Randhir Singh was put up for identification with Kedar and Ram Ratan on the 2nd of July, 1940. Prem Shankar and Debi Charan were put up for identification on the 11th of September, 1940.

Debi Charan has been identified by Barua, Rami Sahai and Gopal Barua made two correct identifications and three mistakes. Ram Sahai made three correct identifications and two mistakes. Gopal made four correct identifications and one mistake. The evidence of Barua and Ram Sahai cannot be regarded as satisfactory. Apparently there is no defect in the evidence of Gopal and he seems to be a good witness, but it would not be safe to base a conviction on his evidence alone.

Prem Shankar was identified by Ram Sahai and Raghunandan. Ram Sahai made three correct identifications and two mistakes. His evidence is, therefore, poor. Raghunandan made four correct identifications and one mistake. Apparently he is a good witness, but his solitary evidence would not be sufficient for the conviction of Prem Shankar.

Randhir Singh has been identified by no fewer than eleven witnesses, viz. Misri Lal, Raghubar, Durga, son of Bachcha, Barhma, Rameshar, Kali Charan, Ram Sahai, Dijrga, son of Debi Dayal, Sukhcleo, Raghunandan and Gopal. Misri Lal made three correct identifications and one mistake. Raghubar made three correct identifications anc two mistakes. Durga made three correct identifications and two mistakes. Barhma made one correct identification and one mistake. Rameshar made three correct identifications and two mistakes. Kali Charan made three correct identifications and the mistake. Ram Sahai and Durga each made three correct identifications and two mistakes. Sukhdeo made two correct identifications and one mistake. Raghunandan and Gopal each made four correct identifications and one mistake. With the exception of the evidence of Raghunandan and Gopal, the evidence of the other witnesses is not satisfactory. It has been urged on behalf of the defence that no reliance should be placed on the identification evidence as the accused had been shown to the witnesses at the time of his arrest. An objection to that effect was also made by his counsel who was present at the time of the proceedings. Randhir Singh was arrested in Gajner. Amir Baksh, chaukidar of Gajner, was produced by the prosecution. He was not examined in the lower court but lie was put up for cross-examination. In his cross-examination he has stated: “The sub-inspector of Jahanabad had gone to Gajner for his arrest. He went there by motor-lorry. There would have been 25 or 30 men in the motor-lorry with daroghaji. The lorry stopped in front of the house of daroghaji of Gajner. Randhir Singh would have been brought under arrest at about 11 or 12 o'clock noon. He was made to sit on the chabutra in front of daroghaji's house. Besides Randhir Singh, a number of people were sitting on the chabutra. Some were village people and some from the motor-lorry. Randhir Singh was sitting there till dark appears from this evidence that there is some substance in the complaint of the accused, because, according to the evidence of Amir Baksh, about 25 or 30 persons were taken by the sub-inspector in the lorry with him and these persons were made to sit with Randhir Singh accused on the chabutra in front of the sub-inspector's house at Gajner. The witness was not cross-examined on this point by the prosecution. There is no reason to disbelieve the evidence of this witness. If the sub-inspector took with him 25 or 30 outsiders and they were with him when he arrested this accused and these persons were allowed to remain with him, it would be difficult to say whether the witnesses who have been produced by the prosecution were not among them. The value of the identification has been lost very much. We do not think it safe to rely on the evidence of the witnesses who have identified him.

In this connection it may be stated that it appears that Mr. Narsingh Narain, Deputy Magistrate, who conducted the identification proceedings does not realise his responsibility. An objection was taken by Randhir Singh and repeated requests were made by him to make a note of it but the learned Magistrate did not do so. His counsel had to make an application (Ex. S) on which the learned Magistrate had to make a note that the objection had been taken by the accused. The learned Magistrate has stated: “I do not write such objection in my identification memo.” This is not the correct procedure. It is the duty of the learned Magistrate to make a note of every objection which is made by an accused at the time of the identification proceedings so that the court which has to judge the value of the identification evidence may take into consideration the objections and, in the light of those objections, may appreciate the evidence of identification. It as appears that the learned Magistrate is rather dilatory in conducting identification proceedings. Debi Charar was admitted in jail on the 8th of July, 1940. He was asked to conduct the proceedings of the identification of Debi Gharan on the 11th of July, 1940. On the 15th of July, 1940, he asked the station officer of Jahanabad to report whether any accused was absconding. The order to the prosecuting inspector was: “Please let me know how many times I have already conducted identification proceedings in this case, whether any accused is still at large and whether action under sections 87 and 88 of the Criminal Procedure Code has been taken against such accused.” He was informed that proceedings under sections 87 and 88 of the Criminal Procedure Code against the absconding accused were being taken; still he did not like to conduct the identification proceedings and again asked for another report on the 16th of July, 1940, and again on the 22nd of July, 1940. The accused had to be detained in the lock-up unnecessarily till the identification proceedings were ultimately conducted by him on the 11th of September, 1940. The sooner the identification proceedings are conducted, the better it is. It is not desirable to delay identification proceedings because a delay may affect the ability of a witness to identify an accused.

There is no force in the Government Appeal and it is, therefore, dismissed. The respondents need not surrender to their bail.

As regards the application for the enhancement of the passed on Debi Dayal, it was contended by his learned counsel that this Court had no jurisdiction now to enhance the sentence as an appeal sent by the accused from jail had been dismissed and his conviction and sentence had been confirmed. Reliance is placed on the decision in the case of Emperor v. Kehar(1). We find no discussion in this judgment. It has been taken for granted that no revision for enhancement of sentence would lie if an appeal from jail of the accused has been dismissed by a learned single judge of this Court.

There is another case Emperor v. Abdul Qaiyum(2), in which the same question as to whether a revision would lie in the present circumstances or not was considered. There it was held that section 369 of the Criminal Procedure Code was no bar to the exercise of the power of enhancement by the High Court as that section must be read subject to the provisions of section 430 of the Criminal Procedure Code the exception to which covers the power of enhancement. It was further observed: “Under the rules of this Court—chapter I(17)(d) a single judge cannot exercise the jurisdiction of enhancement and that jurisdiction can only be exercised by a Bench of this Court. Accordingly the order of the learned single Judge disposing of the jail appeal cannot be taken to have been an exercise of the jurisdiction of this Court under chapter XXXII so far as the power of enhancement is concerned”. The same view has been taken in Emperor v. Koya Partap, Ramlakhan Chaudhry v. Emperor, Emperor v. Jorabhai Kisabhai(3), and Khodabux…Accused Applicant; v. Emperor…Opposite Party.(4). We are of the opinion that the revision would lie.

Debi Dayal, as stated above, has been sentenced to four years' rigorous imprisonment under section 395 of the Indian Penal Code and to six months' rigorous imprisonment under section 19(f) of the Arm Act. The sentences are to run consecutively. There was a fight between the dacoits and the villagers in which a number of persons were injured. Debi Dayal was found in possession of a loaded revolver. Both the sentences are, in our opinion, rather inadequate. We, therefore, enhance the sentence under section 395 of the Indian Penal Code from four years' to ten years' rigorous imprisonment and the sentence of six months' rigorous imprisonment under section 19(f) of the Arms Act to that of two years' rigorous imprisonment. Both the sentences will run concurrently. We allow the revision application accordingly.