Umesh Chandra, J.:— These are three connected appeals, namely, Criminal appeal No. 789 of 1978, Criminal appeal No. 883 of 1978 and criminal appeal No. 1050 of 1978, directed against a judgment and order dated 15.3.1978, passed by II Additional Judge, Ghazipur, convicting and sentencing all the four appellants to five years rigorous imprisonment under Section 395 I.P.C

2. The case relates to the commission of a dacoity at the house of Sheo Shanker Tiwari in village Sakkepur, police station Mardah, District Ghazipur in the night between 5th and 6th May, 1975. According to the prosecution at about 12 O'clock in the night some 30 dacoits out of whom one was armed with a gun, the other with a knife and the remaining with lathis entered the house of Sheo Shanker Tiwari. They had also torches with them. It is alleged that the lighted lanterns were kept at the door of the house and the baithaka. The dacoits entered the house through the northern gate of the house and then reached Sehan where Sheo Shanker Tiwari (P.W 9), Tribhuwan Nath Tiwari (P.W 2), Gauri Shanker Tiwari (P.W 1) and Mahendra Tiwari (P.W 10) were sleeping. The dacoits started tying them to their cots. Sheo Shanker Tiwari, however managed to escape. He ran towards the village raising an alarm. The dacoits removed one of the door leaves of the door of the Zenana house and entered inside it. Some of them kept standing in the sehan near the cots of Sheo Shanker Tiwari and others, who had been tied and they were continuously threatening them. Some residents of the village came near the house of Sheo Shanker Tiwari but the dacoits fired a shot Page: 21at them as a result of which the villagers ran away out of fright, but they kept on raising alarms from a distance. The entire house was ransacked, cash, cloths and jewellary kept in the boxes were looted. The ladies of the house ran towards the village out of fear. These villagers who had collected there were flashing their torches. As the dacoits came out of the house with the looted property, they assaulted Gauri Shanker Tiwari and Mahendra Tiwari with lathis. After committing the dacoity the dacoits managed to run away to the southern side of the village. Munnu Passi son of Sakaly Passim resident of the same village was recognised. The other dacoits were not named in the report but it was alleged that their faces were very well seen in the light of the torches and lanterns. A report of the occurrence was lodged by Sheo Shanker Tiwari at police station Mardah on 6.5.1975 at about 7.05 a.m, the place of occurrence being about one mile from the police station. Monu appellant has been named in the first information report. The prosecution case against rest of the appellants is based on the performance of the prosecution witnesses in the test parade. Shanker Saran Upadhya (P.W 12) was the Thana Incharge, Mardah, Rajnath and Mahatim appellants were arrested by him on 28.8.1975 and on-7.9.75 he made a report that they be put up for identification. Mohd. Jamal Khan (P.W 15) was constable Moharrir at police station Birno when on 10.9.1975 he arrested appellant Ram Janam at the culvert of Alawalpur and brought him Baparda to Thana Birno where he was lodged. He was taken to jail an 11.9.1975 These three appellants were put up for identification on 15.10.1975, the identification parade being held by Sri B.B Singh (P.W 14) Ram Janam was correctly identified by Sheo Shanker Tiwari (P.W 9) and Mahendra Tiwari (P.W 10), and Tribhuwan Nath Tiwari (P.W 2). All the three appellants were correctly identified by Mahendra Tiwari (P.W 10) and Tribhuwan Nath Tiwari (P.W 2).

3. After a report of the identification parade was received by the Investigating Officer, who in the meanwhile had interrogated the other witnesses and prepared a site plan, he submitted a charge-sheet against all the appellants leading to their trial.

4. It may be mentioned that Mahendra Tiwari and Gauri Shanker Tiwari were examined by Dr. Sugriva Singh (P.W 7). Sri Mahendra Tiwari had a lacerated wound on the right side of the forehead, multiple abrasion and one contusion while Gauri Shanker Tiwari had two contusions and one abrasion. In support of the prosecution case Gaciri Shanker Tiwari (P.W 1) Tribhuwan Nath Tiwari (P.W 2), Sheo Shanker Tiwari (P.W 9) and Mahendra Tiwari (P.W 10) who had identified the appellants in jail were produced, the testimony of other witnesses is of formal nature. Believing their testimony, the Additional Sessions Judge convicted and sentenced the appellants as mentioned above. Aggrieved, the present appeals have been filed which have been heard together and are being disposed of by this judgment.

5. There is no doubt that a dacoity was committed at the house of Sheo Shanker Tiwari of village Sakkapur in the night between 5th and 6th May, 1975. The prosecution has deposed about the factum of dacoity and they have not been seriously cross-examined on this point. A report of the occurrence was lodged promptly. In the commission of the dacoity the miscreants had assaulted Mahendra Tiwari and Gauri Shanker Tiwari both of whom were medically examined at 7.50 a.m and 7.45 a.m respectively on 6.5.1975, i.e, soon after the occurrence. Injury No. 1 caused to Gauri Shanker Tiwari i.e contusion with traumatic swelling on the loser part of left arm was kept under observation as fracture was suspected. The learned Additional Sessions Judge was, therefore, justified in finding that the factum of dacoity has been fully established by the prosecution.

6. There is also no doubt that the dacoity was committed when there was sufficient light in the house. Two lighted lanterns were kept, one at the door leading to the Zenana house and the other in the courtyard where Sheo Shanker Tiwari and others were sleeping. These lanterns were found by the Investigating Officer when he reached in the village soon after a report was lodged. It is also natural that lighted lanterns would be kept at the door leading to Sehan of the ladies. The testimony of the prosecution witnesses as to the source of light has been consistent and on this point also the finding of the learned Additional Sessions Judge as to the availability of the light must be confirmed.

7. The prosecution evidence, however, establishes that the witnesses had no opportunity of seeing the faces of the dacoits and their performance in the test parade does not inspire confidence. The case of Munnu alias Monu (criminal appeal No. 1050 of 1978) stands apart as he has been named in the first information report. For two reasons his participation in the dacoity Page: 22has not been proved. Firstly, although he is a resident of the same village yet he had not taken precaution to conceal his identify. In this connection reference may be made to the statement of Mahendra Tiwari (P.W 10). He has admitted that some of the dacoits had concealed their faces but Ram Janam had not done so. In all probability if Ram Janam of the same village had been with the dacoits he would have concealed his face. Secondly, even though Ram Janam was known to prosecution witnesses particularly Shea Shanker Tiwari who had lodged a report no particular part has been assigned to him. According to prosecution Mahendra Tiwari and others were tied to their cots. The dacoits had stayed near the cots of these inmates of the house. Some of them had assaulted Mahendra Tiwari. They moved from one room to another to ransack and remove the contents of the boxes. All this was done by the dacoits but no part has been assigned to Monu. In evidence, however, Gauri Shanker Tiwari (P.W 1) admitted that he had not told Sheo Shanker Tiwari about the part played by Monu in the dacoiy. No reason is given for this omission. His statement that Munnu was with the dacoits and when they were leaving the house he returned and gave him a lathi blow hardly inspires confidence because there was no occasion for Munnu to resort to violence after the dacoits had started leaving the house on account of the mounted pressure by the villagers on them. For these two reasons the participation of Munnu in the dacoity has not been established.

8. The case of the other three appellants may be taken together. Learned counsel for the appellants has referred to a case Ramesliwar Singh v. State of Jammu and Kashmir 1971 CAR SC 416. In this case referring to the evidence of identification it was held:

“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 ft of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and 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 that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit 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 are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fair play can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting statement in court of the identifying witness.”

9. Regarding the description of the miscreants' and its omission from the first information report, the Hon'ble Supreme Court has held in the case referred to above as under:

“That report, it is not disputed, does not contain any description of the alleged culprit that the witness known the culprit earlier, one would have reasonably expected him to so state in the report. If, however, without knowing him earlier he had formed a distinct impression of the culprit's looks and bearing so as to able to identify him later, then also one would have expected this witness to give the report the description of the culprit as seen by him so as to provide the investigating authorities with something tangible as guideline to start with the investigation.”

10. In this very case the lapse of the Investigating Officer not to take steps to arrest the culprits even when their names had been disclosed, was considered and an adverse inference was drawn. It was held:

“We have also to consider further the circumstance that the High Court has not adverted to the omission on the part of the investigating authorities to take steps to arrest the appellant soon after the alleged disclosure of his name to them by the said witness. According to Ch. Ghulam Nabi Mir. S.H.O the appellant's name was disclosed on the very day of the occurrence. There is no plausible reason discernible on the record as to why such steps were not taken if the appellant's identity as a result of the disclosure of his name became known to the authorities the same day. The High Court appears to us not only to have erroneously disregarded the forms of legal process but has failed to advert to important and vital aspects, thereby causing serious prejudice to the appellant. In view of what has just been stated prima facie grave and substantial injustice cannot but be considered to have resulted from the infirmities in the impugned judgment.”

11. In Manzoor v. State Of Uttar Pradesh 1982 SCC (Cri) 356, the importance of identification parade and the omission to mention the identifying features of the miscreants was emphasised and it was held as under:

“If at the earliest opportunity the home-guards did not mention any identifying features of the culprits when they were examined by P.W 12 it is difficult for us to believe how P.W 2 could have identified both the appellants nearly two months later on November, 17, 1978. It has to be noted that the appellants have stated in the trial court that they were shown to the witnesses before the identification parade was held. In these circumstances we are not impressed with the evidence of P.Ws 1 and 2.

12. In the present case a general description of the dacoits has been given in the first information report and the special features of each of the appellants as mentioned by the Magistrate conducting the identification parade were not stated in the first information report or to the Investigating Officer. Moreover, Mahatim and Raj Nath were arrested on 28.8.1975 and their identification parade took place nearly after two months, which itself creates doubt about the performance of Mahendra Tiwari and Tribhuwan Nath Tiwari in the identification parade.

13. There is another reason to discard the testimony of these two witnesses. The Investigating Officer Shanker Saran Upadhya (P.W 12) has stated that the participation of Harish Chandra, Mahatim Singh, Rajnath Singh and Ram Janam was known to him when he interrogated Badri and Ram Baran. He also admitted that Ram Baran was interrogated on 19.5.1975, therefore, the participation of these two appellants in the dacoity had come to the notice of the Investigating Officer on 19.5.1975 These appellants were arrested on 28.8.1975 It follows, therefore, that the Investigating Officer had taken no steps from 19.5.1975 to 28.8.1975 for apprehending the appellants and for putting them for identification. No explanation has been given as to why the appellants were not arrested soon after they were named by the co-accused. In Nathwa v. State AIR 1951 Alld. 452, this lapse on the part of the Investigating Officer has been criticised and it was held:

“It was on 20.1.1949, that Ali Husain's confession was recorded and thereafter on 22.2.1949, the circle inspector directed that Kirpal should be arrested. No explanation at all is forthcoming why Kirpal was left at liberty for about two months or so between 26.11.1948, and 22.1.1949 It appears to me that there is considerable force in the suggestion made on behalf of the appellant that the circle inspector deliberately left Kirpal and liberty along with him to live peacefully in his village with the object that this interval of about two months might be utilised by his prosecution witnesses to see him in his village and mark him carefully so as to be able to recognise, him at the time of the identification proceedings subsequently. Even if this inference does not necessarily follow, this circumstances create a considerable doubt in my mind about the genuineness of the identification.”

14. Thirdly, none of these two witnesses could have identified the appellants at the time of commission of the dacoity, About 30 dacoits had entered the house of Sheo Shanker Tiwari on the night of the occurrence. Both these witnesses Mahendra Tiwari and Tribhuwan Nath Tiwari were in the courtyard. They were sleeping when the dacoits broke into the house. It is admitted Page: 24by these witnesses that the dacoits had tied them to the cots and about four dacoits in turn had stationed themselves near the cots of Mahendra Tiwari, Gauri Shanker Tiwari and Tribhuwan Tiwari. They were not permitted to rise or go out. The scene inside the house can very well be imagined These 30 dacoits were roaming about, breaking open the lock and ransacking the contents of the boxes. They had also broken open the door leading to a portion of the house occupied by the ladies who had run away out of fear. A few dacoits had also used violence against the inmates of the house. Under such circumstances even if there was a lighted lantern in the courtyard it would have been difficult for these two prosecution witnesses to recognise the identifying features of the dacoits and keep them in memory for about two months so as to correctly identify the appellants in the test parade. They would have hardly got a glimpse of the dacoits running round and looting the property and in view of their position they would hardly have an opportunity of noting the identifying marks. It may also be mentioned that in the earlier parade held on 9.7.1975 Mahendra Tiwari had not identified any of the five dacoits put up for identification and Tribhuwan Math Tiwari could only identify the three dacoits while he committed a mistake in the parade of Alt Sher. Their performance about three months thereafter on 15.10.1975 to the effect that they correctly identified all the three appellants raises grave doubt about their performance. It is highly probable that the period of about two months from the time when the participation of the appellants arrest was utilised by the prosecution agency to help these two prosecution witnesses so that they can correctly identify the appellants in the parade.

15. The performance of Sheo Shanker Tiwari (P.W 9) does not help the prosecution. In the parade of 9.7.1975 he could not identify in five dacoits put up for identification and committed mistake in the parade of Dhoodh Nath, Badri and Ali Sher. In the parade dated 15.10.75 he identified only Ram Janam, with the result that out of the eight dacoits he could identify only four, the performance being about 50 per cent it must be rejected. In view of the discussion given above, I hold (1) that the prosecution witnesses Sheo Shanker Tiwari, Mahendra Tiwari and Tribhuwan Nath Tiwari had no opportunity of noting the special features of the dacoits who committed dacoity in the house of Sheo Shanker Tiwari in the night between 5th and 6th May, 1975, and (Z) the performance of these two witnesses in the test parade cannot be relied upon for the reasons mentioned above. The result is that participation of the appellants in the said dacoity has not been established.

16. In the result, the appeals succeed and are allowed. The order, dated 15.3.1978, passed by II Additional Sessions Judge, Ghazipur, convicting and sentencing the appellants to five years rigorous imprisonment under Section 395 I.P.C is set aside. The appellants are found not guilty of the offence with which they were charged. They are acquitted of the same. Appellants Rajnath Singh, Munnu alias Monu and Mahatim Singh are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged Appellant Ram Janam is in jail. He shall be released forthwith unless required in connection with any other case.