JUDGMENT 1. - This appeal has been directed against the judgment dated 10.1.1975 of the learned Additional Sesssions Judge, Alwar where by he convicted the accused-appellant Pyare Singh alias Banta Singh son of Atar Singh for committing dacoity in the house of Madanlal and Ramesh Chandra under Section 395 I. P. C, and sentenced him to undergo rigorous imprisonment for a period of five years and a fine of Rs. 100/- and in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Tersely speaking the prosecution case as disclosed at the trial was that on the intervening night of 4/5th August, 1969 a dacoity was committed in the house of P. W. 3 Madanlal and P. W. 4 Ramesh Chandra. The dacoits, inflicted injuries on the person of Madan Lal and robbed him, went to the shop of Ramesh Chandra, asked hin to handover the key of the safe, opened it, brought out silver and gold ornaments and decamped with the property. The F. I. R. Ex. P. 4 of this occurrence was lodged at the police station, Ramgarh on 5.8.69 at 7.30 a.m. P. W. 3 Madan Lal, Anguri, Santa were injured during the course of dacoity at the hands of the dacoits. They were clinically examined by the P. W. 1 Dr. A. C. Dutta. A chalian under section 395/397 was filed against Harnath, Man Singh, Kukko in the court of Additional Munsif Magistrate, Alwar. As the appellant Pyare Singh could not be apprehended he was shown amongst the list of absconders. The three accused were committed to the court of Addl. Sessions Judge, Alwar who by his judgement dated 24.10.72 convicted accused Harnath Singh under section 395 I.P.C, and sentenced him to three years' rigorous imprisonment. Rest of the accused were acquitted of the charges framed against them. 3. Later on P.W. 5. Kishan Singh, the Investigating Officer of this case, came to know that the appellant Pyare Singh was in jail at Alwar in connection with some other case. On 6.9.1973 an identification parade was held at Alwar Jail for identifying the accused in test identification by the victims of the dacoity.'The tests identification was held under the supervision of P. W. 6 Jagannath Chandel, First Class Magistrate and the identification memo is Ex. P. 7. On 6.9.1973 an identification parade was held at Alwar Jail for identifying the accused in test identification by the victims of the dacoity.'The tests identification was held under the supervision of P. W. 6 Jagannath Chandel, First Class Magistrate and the identification memo is Ex. P. 7. The police after usual investigation submitted a challan against the accused in the court of Additional Munsiff and Judicial Magistrate, No. 5, Alwar, who committed the accused to stand trial under section 395 1. P, C. in the court of Additional Sessions Judge, Alwar. The learned Additional Sessions Judge placing reliance on the statements of P. W. 3 Madan Lal and P. W. 4 Ramesh Chandra corroborated by the test identification memo Ex. P. 7 and the statement of P. W. 6 Jagannath Chandel as well as P. W. 1 Dr. A. C. Datta and the First Information Report Ex. P. 4, convicted the accused-appellant under section 395 I. P. C. and sentenced him as mentioned above. The convicted accused-appellant has challenged the conviction awarded to him by this appeal. 4. It has not been challenged that on the intervening night of 4/5th August, 1969 a dacoity took place in village Chomu, Tehsil Ramgarh in which the house and shop of P. W. 3 Madan Lal and P. W. 4 Ramesh Chandra -were ran-sacked and the dacoits decamped with the valuable articles. 5. The first contention of the learned counsel appearing for the appellant is that the delay of four years in between holding of the identification parade and the commission of dacoity is fatal to the prosecution case. He urged that the occurrence took place in the year 1969 and the test identification parade was held in the year 1973. A considerable period has passed in between the commission of the dacoity and holding the test identification parade and as such no reliance can be placed on such an identification. Thus the question which remains to be considered is whether P. W. 3 Madan Lal and P. W. 4 Ramesh Chandra should be believed when they say that the appellant was one of the dacoit, who committed the dacoity at their places. The facial recognition of a human being is dependent on the particular quality of memory. Detailed observation, clarity of image its retention and recall are the obvious steps in the process. The facial recognition of a human being is dependent on the particular quality of memory. Detailed observation, clarity of image its retention and recall are the obvious steps in the process. They differ from person to person and from occasion to occasion. The intervention of time between observation and recall is certainly a relevant factor in determining the reliability of recall but it would be hazardous to fix a universal measure of time after which recall should be necessarily disbelieved. All that a Judge in appreciating evidence has to do is that when there is a long period intervening the observation and recall without any repetition of observation and recall without any repetition of observation the court has to be cautious. A perusal of the statement of P.W. Madan Lal and P.W. 4 Ramesh Chandra reveals that the dacoits gave beating to Madan Lal, both of them were asked to point out valuable property from the places of its concealment. Madan Lal has stated that after looting his property they took him to the place of Ramesh Chandra, there they broke open the safe and brought out the ornaments. Fie further stated that he saw the accused in the light of the lentern which was burning there. P. W. 4 Ramesh Chandra has also stated that he and the inmates of his house were given beating by the accused. They broke open the safe after lighting the lantern, they brought out the ornaments. Thus both of them had enough opportunity to observe the physical feature of the dacoits. Their own property was being looted and as such they must have been keen to observe and identify the accused and simply because a period of four years has elapsed between the commission of the dacoity and the test identification their statements relied upon by the learned trial court, cannot be discarded. 6. The other contention raised by the learned counsel for the appellant is that though the accused-appellant was arrested in this case in the month of July 1973 yet the test identification was held after a considerable time on 6.9.73 and the intervening period must have been utilised for showing the accused to the prosecution witnesses. 7. I do not find any merit in this argument. 7. I do not find any merit in this argument. Neither P. W. 3 Madan Lal nor P. W. 4 Ramesh Chandra or P.W. 5 Kishan Singh, Investigating Officer of this case, have been cross-examined on this point. If the accused wanted to rely upon this defence, the eye-witnesses and the Investigating Officer ought to have been cross-examined to that effect and it ought have been suggested to them that the appellant was shown to them in jail or at the Police Station. In the absence of such a suggestion to the witnesses a bald statement of the accused that he was shown to the prosecution witnesses during investigation cannot be held sufficient to discard the evidence of identification otherwise reliable. A similar argument which has. been raised before the Division Bench of this Court in the State of Rajasthan v. Rama and others, 1973 WLN Page 934 . Hon'ble B.P. Beri J. the then Chief Justice speaking for the court observed as under:- "In this contest it was urged that Rama was arrested on 15.11.1971. How is it that he was identified on 4.2.1972. An explanation on this respect could be only had from Mr. Kuber dan (PW. 20) but no question was directed to him. The delay in identification, in our opinion, merely decreases the ability to recall and unless it is shown by reliable circumstances that this opportunity was utilised for showing the suspect to the witness nothing else turns on this." 8. Repelling a similar argument their Lordships of the Supreme Court in Bharat Singh. v. State of U. P. , 1973 GLR (SC) 317 observed as under - "Now it is true that in the instant case there was delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that thereby cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross examined in that behalf". 9. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the police officer who conducted the investigation should have been cross examined in that behalf". 9. The ratio-decidendi of the two cases cited above applies to the facts of this case. 10. The third contention raised on behalf of the appellant is that the accused-appellant is a Sikh and in the First Information Report it was not mentioned that one of the dacoits was a Sikh. Besides that there are contradictions in statements of the two identifying witnesses and the Magistrates regarding the number of the members of Sikh community being mixed with the accused-appellant at the time of identification parade. It is true that description of the accused has neither been given in the First Information Report nor in the statement of the witnesses recorded in the police they had given any description of the appellant. But it also stands proved that both the eye-witnesses P. W. 3 Madan Lal and P. W. 4 Ramesh Chandra had enough opportunity to mark the physical feature of the miscreants because those miscreants were on the scene of occurrence for a considerable long time i. e. for more than an hour. They were seven or eight in number and there was no crowd between them and the victims which could stultify that opportunity. P.W. 4 Ramesh has assigned specific part to the accused-appellant. According to him the appellant took out the ornaments from the shop. This was the most important event of the life of the witnesses. His property was being taken away in. his own presence and as such there is nothing unusual if he identified the person who had removed the ornaments, it has come in evidence of P. W. 6 Jagannath Chandel, the Magistrate concerned, under whose supervision the test identification was held that he mixed other co-accused with the accused who were similar to the accused at the time of identification parade. The trial court after scrutinising the evidence and detailed discussion has believed the statements of the eye-witnesses of the occurrence. Both P.W. 3 Madan Lal and P. W. 4 Ramesh Chandra correctly identified the accused-appellant in the test identification parade as well as in the court during trial. The trial court after scrutinising the evidence and detailed discussion has believed the statements of the eye-witnesses of the occurrence. Both P.W. 3 Madan Lal and P. W. 4 Ramesh Chandra correctly identified the accused-appellant in the test identification parade as well as in the court during trial. The trial court had the opportunity to observe the witnesses in the witness box. Inspite of cross-examination nothing appeared on the basis of which the veracity of their statements can be doubted. There is no substantial reason to reverse the finding of fact arrived at by the trial court. 11. Now remains the question of sentence. It has been argued that the accused appellant is a young man, thirty years of age and is cultivator by profession. He has already remained in jail for a period exceeding four years and his further continuance in jail is not likely to have any reformatory effect upon him. 12. Taking the conspectus of the circumstances of the case, I consider that the ends of justice would be met if the sentence of the appellant is reduced. 13. The net result of the above discussion is that the conviction of the accused-appellant under Section 395 I. P. C. is upheld and the sentence awarded to him is reduced from five years rigorous imprisonment and a fine of Rs. 100/- to that of four years rigorous imprisonment and a fine of Rs. 100/- in default of payment of fine to further undergo rigorous imprisonment for one month. With the above modification in the term of sentence the appeal stands dismissed. It is, however, made clear that the accused-appellant shall be entitled to the benefit of section 428 Cr. P. C., 1973 and the period of detention undergone by him during investigation, inquiry or trial before the date of conviction shall be set off against the term of sentence awarded to him by this Court. *******