Hon'ble Virendra Vikram Singh, J.

Heard learned counsel for the appellant, learned AGA and perused the record.

The appellant, only accused, who faced trial in S.T No. 41/1982 stood convicted for offence under Section 395, IPC and was sentenced to undergo imprisonment for ten years, has challenged his conviction and sentence by way of present appeal.

The prosecution version, as it has come forth in the FIR lodged by Kedar Nath Yadav, is that on 24.11.1981 at about 7.00 in the evening he along with his other family members namely, Radha Yadav, Shanker Yadav and Smt. Sudamiya were warming infront of the fire. Lantern was on in the house. Other inmates of the house namely, Keshav Prasad Yadav and Rama Kant Yadav were inside the house that all of a sudden 7-8 Dacoits trespassed into the house and asked for the gun. The complainant having suspected dacoity, put fire to the fodder in the courtyard, whereby lot of illumination appeared, and raised cries. The Dacoits in order to terrorise hurled bombs and fired with the tamanchas they were having and also affected loot inside the house. Keshav Prasad took his gun and fired on the Dacoits. On the cries made by the inmates of the house witnesses also appeared while flashing torches. The witnesses were unknown and they were recognised in the light mentioned above. Due to the fire and bomb blast by the robbers the complainant, Ram Chandra, Smt. Sudamiya, Shanker Yadav and Parshuram received blast injuries. It is also mentioned in the FIR that the Dacoits also received injuries by the fire made by Keshav Prasad as also from the blast of bombs they were having. The Dacoits took retreat to the East of the house where the trail of blood was found.

This written report (Ext.Ka-1) was lodged at the police station Haldharpur at 8.10 in the night. The case bearing crime no. 174/81 was registered under Section 395/397, IPC vide G.D Entry, copy whereof is Ext.-Ka-18.

The I.O immediately after the registration of the criminal case at the police station rushed to the place of occurrence and proceeded to prepare the memo of the source of light to wit lantern inside the house and the ashes of the burnt fodder and the torches. He also sent the injured persons for the medical examination. In the meantime he was informed that the dead bodies of two Dacoits are laying to the East of the house. It was also informed that one Dacoit in the serious injured condition was found. Inquest proceedings were drawn for the two dead Dacoits and the injured person, who was found to the East of the house, was apprehended by the police. This person is Sheo Shankar, the present appellant. The witnesses to the occurrence of dacoity also fired at the scene of occurrence and they recognised the present appellant to be one of the Dacoit, who participated in the occurrence. The Investigating Officer also took into police custody and prepared memo of the shoe, bag and the empty cartridges fired during the course of dacoity and prepared the memo, which have been proved during the trial by the Investigating Officer. After concluding the investigation charge sheet has been submitted against the present appellant alone, who faced trial and stood convicted in the manner referred to above.

In the present case, two Dacoits are said to have died due to the fire made by Keshav Prasad, witness as also due to the blast of the bombs the miscreants were having with them. The post-mortem report shows following injuries to the person of the unknown miscreants.

Postmortem report (Ext.Ka-18):-

1. Lacerated wound 3 cm × ½ cm. × muscle deep on the left side of occipital region of scalp. Bleeding present.

2. Lacerated wound involving whole of the right wrist joint resulting complete amputation of right hand from wrist joint. All structure, skin, muscles, vessels, tendons, nerves bones both badly lacerated. The bones pieces are lying in wound. The right thumb is hanging from a skin from the wound. The whole wound is blackened.

3. Lacerated wound 3½ cm. × 1½ cm × tendon deep on the dorsal aspect of left palm. Clotted bleeding present. Blackening on the wound present.

4. Lacerated wound 8 cm × 3 cm × skin deep on the left thigh front and middle front. Blackening present.

5. Lacerated wound varying 1 cm × ½ cm × skin deep in 3 cm × ½ cm × skin deep over the scrotum all covered with clotted blood and blackening as partly washable.

6. Multiple lacerated wound varying from 1 cm × 1 cm × skin deep 3 cm × ½ cm × skin deep all over the middle aspect of left thigh, all covered with clotted blood and blackening while whole is partly washable.

Note:-Singing and tatooing present around the wounds. Cause of death was due to shock and haemorrhage of ante-mortem injuries.

Post-Mortem Report (Ext. Ka-19):

1. Badly lacerated wound involving whole of the left forearm above the left wrist joint. The whole of skin muscles, vessels, tendons and bones lacerated badly resulting amputation of left forearm. Skin muscles bones pieces lying in the wound. Margins not opened.

2. Lacerated wound 5 cm × 2 cm × 2 cm over the radial aspect of left forearm 10 cm below the left elbow joint.

3. Badly lacerated wound over the right wrist joint. The skin muscles bones nerves are lacerated badly. Skin muscle pieces are lying in the wound. The right thumb is hanging with small pieces, skin from wound margin resulting the complete amputation of right forearm over wrist joint.

4. Lacerated wound 10 cm × 1½ cm × bone deep over the lateral aspect and middle front of left thigh. The muscles, vessels and skin are lying in pieces in wound. The margins are lacerated.

5. Lacerated wound 3 cm × ½ cm deep over the dorsal aspect of penis.

Note:- Blackening, singing, burning present around and over the wound. Blackening is partly washable over all wound.

The cause of death is due to shock and haemorrhage following ante-mortem injuries.

The present appellant Sheo Shanker was medically examined on 25.11.1981 at 7.15 p.m and following injuries were noted over his person:-

1. Lacerated wound on middle part of left leg 2 cm × 1½ cm × bone deep underneath fractured and coming out of the wound deformity present swelling over the whole of the left leg present. No fresh bleeding. Margins reddish.

2. Lacerated wound on the upper part of left leg front and inner aspect 1 cm × 1 cm × bone deep. No fresh bleeding. Margin reddish. Charring present.

3. Multiple abrasion over front of left thigh in an area of 20 cm × 11 cm ranging from 6 cm × ½ cm (big) to 1 cm × ¼ cm (small) scab present. Reddish.

4. Lacerated wound on the palmer aspect of right hand on thener prominence 3 cm × 2½ cm × bone deep. Blackening and charring present.

5. Lacerated wound on the plamary aspect of right hand over hynothenon prominence 2 cm × 1½ cm × muscle deep. Blackening and charring present. Opinion-Injury No. 1 is grievous in nature. Injury No. 2 is kept under observation. Injury Nos. 4 & 5 are kept under observation. Advised X-Ray (I) left leg and right hand for fracture and pellets. Injury No. 3 is simple in nature. The injury Nos. 1 & 3 are caused by hard blunt weapon while Injury Nos. 2, 4 & 5 are caused by some firearm (weapon). Duration of all the injuries-about 1½ to 1 day old.

The witnesses, who received injuries in the occurrence received following injuries:-

Injury Report of Kedar Nath Yadav:-

1. Multiple burn on the left side gluteal region and upper part of left thigh and size varying from 5 cm × 2.5 cm × 1½ cm × 0.5 cm. Scab not present. Tatooing was found present.

Nature of injury: simple caused by burn with some firearm object. Duration-fresh.

The other injured Smt. Sudamiya, who was examined on 24.11.1981 at 9.55 p.m sustained following injuries:-

1. Abrasion 2 cm × 1 cm on the outer surface of right leg 7 cm above lateral mallealous bleeds on touch

2. Lacerated wound 1 cm × ½ cm × muscle deep on the right lateral mallealous bleeds on touch

3. Abrasion 4 cm × 1 cm on the medium surface of left leg in the middle bleed of touch.

Nature of Injury was simple and fresh caused by blunt weapon.

The injured Shri Parshuram, a young boy of 12 years was examined on 24.11.1981 in the night received following injuries:-

1. Abrasion 2½ cm × ⅓ cm on the front of right thigh upper part bleeds on touch

2. Abrasion 2.5 cm on the front of right thigh 3 cm above knee joint bleeds on touch

3. Lacerated wound 1 cm × 1 cm × muscle deep on the medial surface of right forearm 2 cm above wrist joint bleeds on touch

4. Abrasion 1 cm × ½ cm on the upper part of right foot just above base of little finger bleeds on touch.

Nature of Injury was simple and fresh caused by blunt weapon.

Shri Shanker Yadav, who was medically examined on 24.11.1981 at 9.35 p.m Received following injuries:-

Abrasion 1½ cm on the left side forehead ½ cm above medial end of left eyebrow bleeds on touch.

Nature of injury was simple and fresh caused by blunt weapon.

After the investigation charge sheet was submitted against the appellant. He was called upon to face trial. Since the offence was exclusively triable by the Court of Sessions, the case was committed and the trial commenced before the Court of Sessions as S.T No. 41 of 1982.

The trial commenced while framing charge by the Additional Sessions Judge on 2.7.1982 The charge under Section 395, IPC was framed against the appellant to which he denied and claimed trial.

In order to prove its case the prosecution examined Keshav Prasad, the complainant as PW-1, Kedar Nath Yadav, Swami Nath Yadav and Phool Chand as witness of fact as PW-2 to PW-4 respectively. The I.O of the case S.I Ram Avtar Singh was examined as PW-5. Dr. S.N Pandey was examined as PW-6, who has proved the post-mortem report of the two unknown miscreants. Dr. G.N Rai, PW-7 has proved the injury report of the present appellant and has also proved the X-Ray report. He has also proved the injury report of the witnesses and the complainant of the case, which have been marked as Exhibits, as it has been mentioned in the Judgment. After the closure of prosecution evidence, as described above, the appellant was examined under Section 313, Cr.P.C He denied all the circumstances appearing against him and claimed to be falsely implicated in the case., He also stated that on 24.11.1981 one sub-Inspector of P.S Rasra called him at the police station and locked him in the Hawalat at about 11.00 in the night. He was taken out and was taken to some unknown place where he was shot at. He fell unconscious and while he regained conciousness, he found himself confined at Haldharpur police station. He has falsely been implicated in this case. Police attempted to implicate him even on earlier occasions, but he was acquitted of the false charges levelled against him. The appellant was given an opportunity to adduce evidence in defence, which he did not avail. After hearing arguments of the learned counsel for the parties, by passing the impugned Judgment, the learned Additional Sessions Judge convicted the appellant for offence under Section 395, IPC and sentenced him to undergo imprisonment for ten years, which is under challenge.

On behalf of the appellant it has been argued with all the vehemence that admittedly the appellant was not known to the complainant or any other witness, hence, the only good evidence against the appellant would have been the test identification. In the present case, the Investigating Agency has never subjected the appellant to test identification parade, hence, there is no evidence available against the appellant worth connecting him with the offence in question.

The sanctity of the identification parade in any case lies upon the following facts:-

1. That the accused was not known to the witnesses;

2. That the witnesses had ample opportunity to see and recognise the miscreant in the source of light available;

3. That after recognising the miscreant in the occurrence the witnesses never had any opportunity or occasion to see the miscreant before the test identification parade;

4. That the witnesses after the test identification parade correctly picked up the miscreant before the Court;

5. That the witness correctly picked up the accused during trial.

In order to appreciate the argument, the Court will have to analyse the weightage and the sanctity of the test identification parade and when the evidence of test identification is considered to be good.

Most important thing to add sanctity to the test identification parade is that the witnesses must not have any opportunity to see the miscreant after the occurrence and before the test identification. In the present case, if the appellant would have been put to test identification, the same would have been farce for the simple reason that immediately after the occurrence on the very next day the witnesses saw the miscreant, the present appellant near the place of occurrence, hence, this important ingredient would have been missing and the test identification would have been of no avail. Thus, the mere fact that the appellant was not subjected to test identification is of no consequence and the appellant cannot claim his acquittal simply on the ground that he was not subjected to test identification parade.

In the present case, commission of dacoity at the house of the complainant is not disputed. Report about the occurrence in question was lodged at the police station. As many as five persons, who were the inmates of the house, received injuries in the occurrence due to the fire made by Keshav Prasad and explosion of bomb by the Dacoits. The injuries to the witnesses have been proved during trial. Two persons were found dead outside the house in question. The appellant himself was found near the place of occurrence in an injured condition. The post mortem reports and enquiry report have been proved by prosecution during trial. Thus, the fact that the Dacoity was committed inside the house of the complainant on the relevant evening is proved and the same has also not been challenged on behalf of the appellant.

On behalf of the appellant the only explanation that has been given is that he was apprehended by the police and was shot at on 24.11.81 whereupon he fell unconscious and he found himself detained at Haldharpur police station. Apart from the suggestions put to the witnesses and the statement of the accused under Section 313, Cr.P.C there is nothing on record to substantiate the defence version of the appellant. Despite giving opportunity no evidence was adduced by or on behalf of the appellant to substantiate the defence version, which in no case can be taken to override the entire prosecution version which has correctly been relied upon by the learned Subordinate Court.

There is mention in the FIR that Dacoits also received injuries in the occurrence. Two of the Dacoits were found dead and the appellant was found in an injured condition. The injury report of the appellant shows that apart from the gun shot wound he has received other injuries as well which the appellant has not explained. There is also mention in the FIR that a trail of blood was witnessed towards the East of the house in question and the appellant was apprehended by the witnesses and later on police towards the East of the house. Immediately, the witnesses saw the appellant, they recognised him to be the “dacoit”, who participated in the commission of “Dacoity” at their house. This evidence of recognition was admissible under Section 9 of the Indian Evidence Act, which provides as follows:-

“Facts necessary to explain or introduce relevant facts. — Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.”

Section 9 of the Indian Evidence Act provides for that any evidence which connects the identity of any person is a relevant fact. In the present case, the evidence against the appellant is that the very next day of the commission of Dacoity he was apprehended near the place of occurrence in a seriously injured condition which the prosecution has explained to have been caused in the commission of Dacoity and the appellant has failed to give any cogent explanation for the same. The evidence of witnesses that they saw the appellant the very next day and recognised him to be the person, who shared the commission of dacoity, is the statement which is admissible under Section 9 of the Indian Evidence Act and the same cannot be disbelieved simply because the Investigating Agency did not put the appellant to test identification, which has discussed earlier, would have been a farce.

All the witnesses of fact examined during trial have categorically stated that they identified the appellant on the very next day of the occurrence to be the person, who participated in dacoity at their residence. These witnesses have also correctly recognised the appellant during their statement on oath. This recognition of the appellant finds support in the injury sustained by him, which could have been caused at the time when the occurrence took place. There is yet another circumstance to corroborate that the appellant was arrested to the East of the house where the dacoity took place and a trail of blood was seen going to the East of the house showing that the miscreants, who have received injuries in the occurrence of dacoity, have marched to the East of the house.

Thus, from the detailed discussion made above it is apparently clear that there is good evidence in the present case about the identification of the appellant as the person, who participated in the commission of dacoity, as already discussed above. This evidence of recognition has been supported by the witnesses by recognising the appellant in the Court and the same also finds corroboration from the circumstances indicated above. The commission of dacoity at the house of the complainant is not under dispute.

Having considered the facts and circumstances the prosecution has successfully proved the participation of the appellant in the dacoity and the trial Court has correctly held the appellant guilty of commission of dacoity inside the house of the complainant and thus, the conviction of the appellant for offence under Section 395, IPC can nowhere be said to be suffering from any flaw.

Now, the Court shall proceed to examine whether the sentence imposed upon the appellant was just. The appellant has been convicted for offence under Section 395, IPC alone. There is no evidence at all against the appellant that he was armed with deadly weapon or that he used any weapon in the course of dacoity. No specific role has been assigned to the appellant. The appellant has not been apprehended along with any looted article and apart from all this the appellant is facing trauma of pendency of criminal appeal against him for the last about 32 years.

Having considered the circumstances, the Court considers it just and expedient that the period of imprisonment be reduced to five years instead of ten years imposed by the trial Court. To this extent, the appeal deserves to be partly allowed.

The conviction of the appellant for the offence under Section 395, IPC is, hereby, upheld, however, the sentence imposed upon the appellant is modified in terms that in place of imprisonment of ten years the appellant shall suffer rigorous imprisonment for five years instead of ten years, as ordered by the trial Court in the impugned Judgment. Any sentence or detention faced by the appellant during the course of trial shall be given set off in the period of punishment for five years.

With this order, the appeal stands partly allowed maintaining the conviction.