JUDGMENT 1. - This is a criminal appeal against the judgment of the learned Additional Sessions Judge, Baran dated October 23, 1971 whereby the appellants were convicted and sentenced as underAppellants Gurdev alias Dev & Jasram : (1) Under Section 148, IPC to two years R. I. (2) Under Section 452 read with section 149, IPC to two years' R.I. (3) Under Section 323/324 read with section 149, IPC to one year's R. I. (4) Under Section 365, IPC to five years' R. I. Rest of the accused appellants : (1) Under Section 147, IPC to one year's R. I. (2) Under Section 452 read with section 149, IPC to two years' R, I. (3) Under Section 323/324 read with section 149, IPC to one year's R. I. (4) Under Section 365, IPC to five year's R. I. 2. All the sentences were ordered to run consecutively. 3. The prosecution case, in brief, is that in the night intervening 16th and 17th February, 1970, at about 11 p.m. the deceased Gangey was assaulted by the appellants along with some others. The prosecution alleged that 10 or 11 persons went to the village Khatka to bring Gangey. They entered into the house of Gangey and belaboured him, Gangey, however, managed to escape in the house of Nandu. Some of the accused, however, entered into the house of Nandu and beat Gangey there. Gangey was dragged out of Nandu's house and was beaten by all the accused persons. Later on, the accused persons forcibly took him away in the trolley of a tractor to village Sunda. Gangey died in the village Sunda and his body was disposed of in the field of sugar-cane by sprinkling kerosene oil by Swaran Singh, Buta Singh and Umrao Singh. The prosecution further alleged that the incident took place at the instigation and abatement of Swaran Singh. The prosecution examined four eye-witnesses namely PW/24 Sahani, mother of the deceased Gangey, PW/26 Nandu, PW/27 Mohan and PW/28 Shyama. Ajodhya was another eyewitness, but was not examined by the prosecution. It appears that Gangey was employed as "Hali" of Digoda Farming Society. Swaran Singh was the President of the said Farming Society. It appears that Gangey left the farm after having taken some advance from the Farming Society. Ajodhya was another eyewitness, but was not examined by the prosecution. It appears that Gangey was employed as "Hali" of Digoda Farming Society. Swaran Singh was the President of the said Farming Society. It appears that Gangey left the farm after having taken some advance from the Farming Society. The First Information Report was lodged on February 18, 1970 at 2.30 p.m, and accused Jasram and Arjun have been named in the First Information Report. In the First Information Report the names of the alleged eye-witnesses namely Sahani PW/24, Nandu PW/26, Mohan PW/27 and Shyama PW/28 have not been mentioned. The learned Munsiff-Magistrate, Baran after conducting the preliminary enquiry committed the accused to the Court of the learned Addl. Sessions Judge, Baran. The plea of the accused was recorded on May 12, 1971 to which they pleaded not guilty and claimed to be tried. The accused in their statement under Section 342, Cr. P.C. denied the prosecution case, but they did not examine any defence witness. The learned Addl. Sessions Judge by his order dated October 23, 1971 convicted and sentenced the seven accused-appellants as indicated above and acquitted the rest of them. 4. On behalf of the accused-appellants, it was contended that the investigating agency has not been fair to them. It was contended that there is ample evidence on record to establish that at the time of the incident there was darkness and that the faces of the accused-appellants could not be identified. It was further contended that the identification proceedings were very much delayed. Accused Gurdev was arrested on 2nd of March, 1970, but his identification proceedings took place on March 21, 1970. Pathroy and Boota Singh were arrested on March 3. 1970, but their identification proceedings took place on March 21, 1970. Amariya was arrested on March 24, 1970, but his identification proceedings were conducted on April 3, 1970. In the case of Hattu, though, he was arrested on April 3, 1970 still his identification proceedings were conducted on April 18. 1970. It was time contended that the identification proceedings were conducted after a lapse of great delay, and no reliance can be placed on such identification proceedings. In the case of Hattu, though, he was arrested on April 3, 1970 still his identification proceedings were conducted on April 18. 1970. It was time contended that the identification proceedings were conducted after a lapse of great delay, and no reliance can be placed on such identification proceedings. It was further contended that PW/24 Sahani has stated that the accused were shown to her in the Police Station before she had gone for identification in the sub-jail, it was also contended that the identification proceedings are of such a nature that it could not inspire confidence of the Court. It was also contended that as there was darkness, the witnesses could not have seen the faces of the accused, and as such, the accused could not have been identified by the witnesses in the identification parade. It was also contended that though the incident took placed at about 10 or 11 p.m. in the night intervening 16th and 17th February. 1970. Act the First Information Report was lodged at 2.30 p.m. on February 18. 1970, and thus there .was ample time for lodging a fabricated and false report. 5. On behalf of the State, it was contended that the prosecution has succeeded in bringing the guilt home to the accused. It was further contented that the accused-appellants did not deserve any leniency as they had mercilessly beaten the poor labourer. It was also contended that Jasrant and Arjun have been named in the First Information Report. Jasram is the son-in-law of PW/24 Sahani, the mother of the deceased. It was, therefore, urged that a mother-in-law would not falsely implicate her son-in-law. It was also contended that the prosecution has examined as many as 44 witnesses and the guilt of the accused-appellants has been established beyond all manner-of reasonable doubt. It was also contended that the accused-appellants along with others came to the house of the deceased Gangey duly armed with deadly weapons, and as such an inference can reasonably be drawn that the accused-appellants intended to cause such injuries to Gangey which would result in death. 6. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. 7. PW/30 Govind Lal lodged a written report Ex. P/20 on February 18, 1970 before the Sub-Inspector of Police, Shahbad Ex. 6. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. 7. PW/30 Govind Lal lodged a written report Ex. P/20 on February 18, 1970 before the Sub-Inspector of Police, Shahbad Ex. P/27 is the First Information Report prepared on the basis of Ex. P/20. In this First Information Report the name of the accused-appellants Jasram and Arjun have been mentioned. The witness has stated that he knows Arjun and Jasram. On the night of February 17, 1970 Arjun and Jasram accompanied by some other persons came to forcibly take away Gangey. Gangey's mother Came to his house that night to inform him and told him that people from village Sunda had some and that they have forcibly taken away Gangey after beating hini. She asked him to go to the Police Station and make a report. Ir. the night, the witness did not go to the Police Station due to the fact that the Police Station was about 12 miles away and the forest intervened. The witness is the cousin-brother of the deceased Gangey. He is not an eye-witness, and he had gone to lodge a report as instructed by Smt. Sahani PW/24, the mother of Gangey. 8. PW/24 Smt. Sahani is the mother of the deceased Gangey. She has stated that about 15 months back she had started preparing meals. Her daughter Ayodhya and her son Gangey were sitting by her side. Gangey used to work in the farm of Swaran Singh. Jasram, Nathu, Arjun, Pathery, Nathha, Hattu, Nirmal, Boota Singh and Devi Singh came to her house. She knew all these persons from before. Her daughter Surja has been married to Jasram. Arjun is the resident of the village in which she resides The accused persons jumped into her house and started beating her son Gangey. Gangey somehow managed to go to Nandu's house. The accused persons followed him there, beat him mercilessly and dragged him out of the house of Nandu. Thereafter all the accused persons started beating him again, and forcibly took him away in a trolley. She weeped and cried, but nobody from the village came to rescue Gangey due to the fear to Punjabis. These accused persons beat Gangey to death. There was darkness when the accused persons had come to her house. Thereafter all the accused persons started beating him again, and forcibly took him away in a trolley. She weeped and cried, but nobody from the village came to rescue Gangey due to the fear to Punjabis. These accused persons beat Gangey to death. There was darkness when the accused persons had come to her house. She could not identify the accused persons in the house as there was darkness. Gangey was assaulted by lathis and axe in her house. He received injuries on back and neck. When Gangey went into the house of Nandu, the accused persons chased him. They beat him mercilessly there and dragged him out of the house and again beat him. The accused persons beat Gangey on his hands, shoulders and legs. Gangey was bleeding profusely from his neck. The accused persons then forcibly took away Gangey in the trolley which was attached to the tractor. She had gone to the jail to identify the accused persons, but before going to the jail the had seen the accused persons in the Police Station. 9. PW/26 Nandu stated that about 8 or 9 persons came running to the house of Gangey. They were armed with lathis, swords and kulharis. They first of all looked at Mohan Lal, and finding that he was not Gangey, they rushed towards the house of Gangey. The house of the witness is adjacent to the house of Gangey. Jasram and one another person said that Gangey was there in the house. When Jasram and others said that Gangey was in the house, some of the accused persons entered into Gangey's house and the remaining accused entered into the house of Nandu. Gangey was assaulted by the accused persons, and as such he run away and took shelter in the house of Nandu, Thereupon Jasram and others cried that he had entered into the house of Nandu. Then all the other accused persons rushed to his house and beat Gangey mercilessly. Jasram, Hattu and Boota Singh beat Gangey in his house. When Gangey was dragged out of the house, the remaining persons also beat him mercilessly with lathis. Some of the accused persons used lathis, some used kulharis and some used sword. Jasram was armed with kulhari and Arjun was armed with lathi. Jasram, Hattu and Boota Singh beat Gangey in his house. When Gangey was dragged out of the house, the remaining persons also beat him mercilessly with lathis. Some of the accused persons used lathis, some used kulharis and some used sword. Jasram was armed with kulhari and Arjun was armed with lathi. He has further stated that he along with Smt. Sahani, Mohanlal, Shyama, Govindi, Ajodhya, Shri Lal, Mathura and Tulsi came together in a bus to identify the accused persons. He has further stated that this is incorrect to say that the accused persons were shown to them in the Police Station first before they had gone for their identification at the jail. They had gone to the jail twice for the purposes of identification. They had stayed in Baran for a night when they had gone for the purposes of identification. 10. Mohan Lal PW/27 has stated that he along with Shyama and Nandu were warming up near a fire. After sun-set 8 or 9 persons came in search of Gangey. Gangey's mother was preparing meals in her house. Ajodhya and Gangey were sitting nearby. Two persons entered into the house of Gangey and started beating him. Gangey ran into the house of Nandu. Four or five accused persons entered into Nandu's house. Those who entered into Nandu's house were Jasram. Boota Singh, Arjun and Nirmal Singh. These persons beat Gangey in the house of Nandu and dragged him out. When Gangey was dragged out of the house of Nandu-he was beaten by other accused persons also. Gangey was bleeding profusely from his neck. Jasram had an axe in his hand. Arjun was armed with a lathi, and the other accused persons had lathis, kulharis and swords. Gangey's mother was weeping and crying for help. He has further stated that it is wrong to say that he and the accused persons had gone from the police station in the same truck. Sajjo, Sahand, Govindi, Nandram etc. had been brought by the police along with him for the purpose of identification. The witness has further stated that it is incorrect to say that the accused persons were shown to them in the police station before they were taken for identification at the jail. The police did not keep the said persons with them before the identification took place. 11. The witness has further stated that it is incorrect to say that the accused persons were shown to them in the police station before they were taken for identification at the jail. The police did not keep the said persons with them before the identification took place. 11. Shyama PW/28 stated that Nandu, Mohan and he were sitting outside the house of Nandu about 15 months back. They were warming up by the side of the fire. After sun-set eight persons came in search of Gangey. These persons inquired from them as to where Gangey was, to which they replied that they did not know. Hearing this reply, two persons went to Gangey's house. Then they cried that Gangey was there in the house. The other accused persons also went to Gangey's house. Due to fear Gangey had escaped to the house of Nandu. The accused persons chased him to Nandu's house which is adjacent to Gangey' house. Gangey was beaten mercilessly in Nandu's house. He was assaulted by sword and lathis, and was dragged out of the house of Nandu. He became unconscious when he was dragged out of house of Nandu. Gangey was bleeding profusely from his neck. Gangey prayed Nandu to save him. When Nandu wanted to intervene, the accused persons threatened him with dire consequences. Then these accused persons forcibly took him away in the trolley. The mother of Gangey was weeping and crying for help, but the villagers did not come to rescue Gangey as they were afraid of the Punjabis. He has further stated that it is incorrect to say that the accused persons were locked up in the Police Station and that he was called at the Police Station and the accused persons were shown to him. All the witnesses for identification had come together. The witnesses had come of their own accord, and were not brought by the police people The witnesses for identification had only received an intimation regarding the date for identification. All the witnesses had come in the evening, and had stayed in the night at Baran. The police people had not met the witnesses at Baran. The witnesses had gone direct to the jail for identification. 12. All the witnesses had come in the evening, and had stayed in the night at Baran. The police people had not met the witnesses at Baran. The witnesses had gone direct to the jail for identification. 12. The main argument on behalf of the accused-appellants is that due to darkness at the time of the incident the prosecution witnesses could not have seen the faces of the accused persons. It is further contended that even the identification proceedings have been held after a great delay, and as such no reliance can be placed on such proceedings. It was also contended that PW/24 Sahani, the mother of the deceased Gangey, has herself admitted in her statement before the Court that the accused persons were not shown to her at the Police Station before the identification proceedings took place at the jail. The other three eye-witnesses have denied that the accused persons were shown to them at the Police Station, before the identification proceedings took place at the jail. The learned counsel advanced the argument that as all these witnesses came together for the purposes of identification, and as Nandu PW/26 had an opportunity of seeing the accused persons in the Police Station there is no reason to disbelieve that the other prosecution witnesses had also seen the accused-appellants in the Police Station before the identification proceedings took place in the jail. Reliance has been placed on Sheikh Hasib v. State of Bihar, 1971 CAR 410 (SC) , wherein it has been held as under "We are also not satisfied about the fairness of the identification proceedings. It may be recalled that the first identification parade was held on February 3, 1969. It however, appears that because the result of this parade was not considered satisfactory by the investigating agency an application was made to the court of the magistrate stating that the identifying witnesses had got confused and, therefore, a fresh test identification parade should be held. Thereafter several identification parades were held on 14, 21st and 28th February. 1963. This procedure only serves to give rise to grave suspicion about the bona fide of the investigating agency. And then we find from the evidence of Jhari Lal Mahto. Thereafter several identification parades were held on 14, 21st and 28th February. 1963. This procedure only serves to give rise to grave suspicion about the bona fide of the investigating agency. And then we find from the evidence of Jhari Lal Mahto. Sub-Deputy Magistrate (PW 13) who had held the T.I. parade on February 14, 1963 that two identification parades were held on that day within half an hour of each other one at 5 p m. and the other at 5.30 p.m. At both these parades PW 10 was present. In the first parade the appellant is stated not to have been included in the suspect to be identified. No reason is shown for his non inclusion in that parade. The High Court has in its judgment accepted the argument raised on behalf of the accused that they were produced in court on February 13, 1963 and has expressed its opinion that the possibility of PW 10 seeing the accused persons in court could not be entirely eliminated. These circumstances, in our view further weakens the value of the appellant's identification held on February 14, 1963. There is, however, also another aspect which requires to be noticed. Now, if PW 10 had recognised the appellant at the time and place of the occurrence as one of the two dacoits hailing from village Banaudha then clearly the identification test of the appellant by this witness can be of little value because the accused was already known to the witness. In that event there is no question of the identification parade dated February 14, 1963 being used as corroborative evidence .supporting his identification in court. As a result of the foregoing discussion we find that there is no legal evidence connecting the appellant with the alleged offence in question and we have, therefore, no hesitation in acquitting him." Reliance was also placed on Rameshwar Singh v. State of J & K., 1971 CAR 416(SC) , in which it has been held as under "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 is 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 avoidance 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 is 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 from appropriate judicial opinion about its evidentiary value for the purpose of roborating or contradicting the statement in court of the identifying witness.' Reliance was placed on Budhson v. State of U.P., AIR 1970 BC 1321 , in which it has been held as under : "Facts which establish the identity of an accused person are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior that identification, therefore, is to test and strengthen the trustworthiness of that evidence, It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings." Reliance was placed on Pritam Singh v. State, AIR 1971 Raj. 184 , in which it has been held as under "Test identification hold long after the event in of little value. The value of identification depends on two most important factors viz., that the person who identifies an accused had no opportunity of seeing him after the commission of the crime ; and secondly that no mistake has been made by the witness. No importance can be attached to identification if the test identification is conducted long after the arrest of the accused, When the accused were put in the identification parade 11 days after their arrest and no convincing explanation case forth as to why so much time was allowed to pass between the arrest of the accused and the identification proceedings identification cannot be said to be proper." Reliance was also placed on Vaikuntam Chandrappa v. State of A. P., AIR 1960 SC 1340 in which it has been held as under "It is true that the substantive evidence of a witness is his statement in Court; but the purpose of test identification is to test that evidence and the safe role is that the sworn testimony of 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 proceedings." 13. This is true that the identification proceedings took place after more than 10 to 11 days. This is also true that Sahani PW/24 has stated that the accused persons were shown to her in the police station before she had gone to the jail for identification parade. This is true that the identification proceedings took place after more than 10 to 11 days. This is also true that Sahani PW/24 has stated that the accused persons were shown to her in the police station before she had gone to the jail for identification parade. Identification proceedings are held with a view to ensure that the innocent persons are not improperly involved or falsely implicated in criminal proceedings. The facts and circumstances of the instant case, however establish some salient features beyond any shadow of doubt. The deceased Gangey was working as Hali of Digoda Farming Society of which Swarn Singh was the President It appears that some money was advanced to Gangey. Gangey did not continue to work as Hali. The accused persons were, however, keen to take him back to the village Sunda and to ensure that he continues to work as Hali. The accused-appellant Jasram is the son-in-law of PW/24 Sahani and brother-in-law of the deceased Gangey. Arjun is also the resident of the same village. It has not been seriously challenged before me on behalf of the accused-appellants that the incident did not take place. The main argument is that due to darkness, the accused-appellants could not have been identified. Smt. Sahani PW/24 has clearly stated on oath that she knew the accused-persons from before. As Gangey was employed id the Digoda Farming Society, it is not unnatural that he and the members of his family knew about the persons with whom he had to deal during the course of his employment. Despite weeping and crying by PW/24 Sahani, the village people did not come to rescue Gangey as they were afraid of the Punjabis. If some money was advanced to Gangey and if he had stopped working as a Hali, then legal steps could have been taken to recover the money advanced to him. At any rate, the accused-appellants were, in my considered opinion, not justified in forcibly abducting Gangey in the trolley from the village Khatk to village Sunda. Before actually forcibly abducting Gangey they mercilessly beat him, as a result of which he was profusely bleeding from his neck, and had almost become unconscious, and it is impossible to conceive of extracting forced labour from a "hali" by such coercive method. Before actually forcibly abducting Gangey they mercilessly beat him, as a result of which he was profusely bleeding from his neck, and had almost become unconscious, and it is impossible to conceive of extracting forced labour from a "hali" by such coercive method. Sahani PW/28 would not go to the extent of implicating her own son-in-law Jasram falsely, especially when her daughter was still alive and living with Jasram. The prosecution has examined 44 witnesses and on a careful perusal of the evidence on record. I have no hesitation in holding that the accused-appellants were the persons who had gone to Khatk to forcibly abduct Gangey. In the course of this forceful abduction Gangey was mercilessly beaten as a result of which he was profusely bleeding from his neck. He ultimately succumbed to his injuries. 14. For the reasons stated above, I have no hesitation in holding that the prosecution has succeeded in bringing the guilt home to the accused-appellants and they have been rightly convicted. As regards their sentences, I feel, there is no justification for ordering the sentences to run consecutively. In my considered opinion, as all these offences were committed in the course of the same transaction, the ends of justice would be met if all the sentences are made to run concurrently. As a result thereof, the appeal is partly allowed. The sentences of the accused appellants shall run concurrently instead of consecutively, as ordered by the learned Addl. Sessions Judge. The accused-appellants shall also be entitled to a set-of under Section 428, Cr. P.C., 1973 for the period they remained in custody during investigation, enquiry or trial. Subject to these modifications, the convictions and sentences awarded to the accused-appellants are hereby confirmed. The accused-appellants are on bail. They are hereby ordered to surrender to their bail-bonds. The learned Addl. Sessions Judge, Baran is hereby directed to cause the accused-appellants to be arrested to undergo the sentences awarded to them. *******