JUDGMENT 1. - Both these appeal arise out of the same judgment dated 18th Aug. 1989 passed in Sessions Case No. 47/88 by the Special Judge Dacoity-Affected Areas Bharatpur hence they both are being disposed of by this common judgment. By the judgment aforesaid appellants Netrapal Raju Dhanpal and Shyam have been found guilty of offence under section 395 IPC and sentenced to 7 years' rigorous imprisonment and a fine of Rs. 100/- each and in default of payment of fine to further undergo 1 month's rigorous imprisonment. and Netrapal Lakhmi and Vijendra have been found guilty under section 3/25 of the Indian Arms Act and sentenced to 3 years' rigorous imprisonment and a fine of Rs. 100/- each and in default of payment of fine to further undergo 1 month's rigorous imprisonment. 2. The incident had taken place during the night intervening 25th & 26th Nov. 1987. A report was lodged at PS-Sevar by one Ramjilal to the effect that a dacoity had been committed in Village-Samaspur and the decoits had looted properties from the houses of Ramjilal Chandan Gopal and Ramsukh. It was further alleged that during the dacoity the miscreants were armed with late his and guns ; they had caught Dwarka Prasad and in that dacoity Dwarka Prasad was murdered. On this report a case was registered and the police visited the place of incident. On 27th November 87 Ramsukh submitted a list of articles which were looted away from his house by the miscreants. Chandan also submitted a list of articles looted from his house on 27th November 87. The accused persons were arrested by the police on their information under section 27 of the Evidence Act some ornaments were recovered by the police. The accused persons were put to identification by the witnesses and they were identified by them. The seized and recovered articles were also put to test-identification and they were also identified by the persons to whom they belonged. Thus after concluding usual investigation the police submitted a challan against 7 persons. 3. The trial court framed charges against the accused persons under sections 395/397 & 396 IPC and also under section 3/25 of Indian Arms Act. The accused persons denied the charges framed against them and also the recovery of the articles and they contended that they have been falsely implicated in this case. 4. 3. The trial court framed charges against the accused persons under sections 395/397 & 396 IPC and also under section 3/25 of Indian Arms Act. The accused persons denied the charges framed against them and also the recovery of the articles and they contended that they have been falsely implicated in this case. 4. The prosecution examined 23 witnesses in support of its case and no evidence was produced in their defence by the accused persons. The trial court after discussing the entire case in detail by a long judgment found that the case against the accused persons has been established; it held them guilty of offences and sentenced them as mentioned above. 5. The learned counsel for the appellants argued that the case depends on three aspects-firstly on the point of identification of the accused persons; and secondly on the point of recovery of articles at their instance; and thirdly on that of identification of the recovered articles. It was argued by them that except these three aspects there is no other evidence to come to the conclusion that the accused persons are responsible for the dacoity committed at the houses of the above-named persons and that they had looted the properties. 6. The entire evidence adduced by the prosecution was read over and the material was brought to the notice of the Court. The dacoity was committed during the night intervening 25th & 26th November 87 and admittedly that night was a dark night. The dacoits had come in the night for dacoity and it cannot be presumed that the dacoits would come in such a position so that they could be identified by the villagers; they would always try to hide their identities; and that is the reason that dacoities are always committed in dark nights. The genesis of identification as is clear from the statements of the prosecution witnesses was an electric-bulb; and some of the witnesses have stated to this extent that electric- bulbs were on in the whole village. There was light at the houses of Ramsukh and the other persons from where the properties were looted away by the dacoits. When the cross-examination of the prosecution witnesses was brought to the notice of this Court it was found that their statements are completely false and incorrect ones. There was light at the houses of Ramsukh and the other persons from where the properties were looted away by the dacoits. When the cross-examination of the prosecution witnesses was brought to the notice of this Court it was found that their statements are completely false and incorrect ones. It is in the evidence that there was no light at the house of Ramsukh and only a temporary electric bulb was on at his house and that too in the chowk. There was no electric-fitting or wiring inside the rooms of Ramsukh's house. Then it is also in the evidence that the bulb which was fixed at the chowk of his house was also off. The evidence is also there that in the entire village there was no electric light. 7. The statement of Ram Swaroop Yadav, SHO, PW-23 was also perused. In his cross-examination he has stated that in the site-plan (Ex. P. 2) he did not mention as to at which place the electric-bulb at the house of Ramsukh was on not was the existence of the bulb shown therein. He also did not mention in the site-plan the place from where the witnesses had seen occurrence though the witnesses have stated it in their statements. He only mentioned therein the fact that there was electric-light in the village. So from the statement of this witness it appears that there was light in the village but his statement does not reveal that at the time of the alleged incident the lights were on in the whole village. If this was a fact that there was electric-light at the houses of the persons from where their properties were looted away I see no reason that the SHO would not point out this fact in the site plan (Ex. P. 2). This is a very important aspect. because allegedly the witnesses had identified the dacoits in the light of electric-bulb; otherwise the night was a dark one and there was no chance to identify the dacoits. So whether or not the electricity or a bulb was on is a very important aspect. Why did the SHO not mention in the site-plan whether there was any light or not at place where the dacoity had taken place ? It shows that there was no light at those houses as well as in the whole village. So whether or not the electricity or a bulb was on is a very important aspect. Why did the SHO not mention in the site-plan whether there was any light or not at place where the dacoity had taken place ? It shows that there was no light at those houses as well as in the whole village. The night was a dark one and there was no chance to identify the dacoits. So the statements of all the witnesses who have stated that they had identified the dacoits in the light are false and unbelievable in dark night the witnesses would identify the miscreants. 8. The accused persons were arrested on 21st/22nd Dec. 1987 and after their arrest their identification-test was held. The dacoity took place in the month of November 87 and practically after one month this identification-parade was held. According to the identification-memo it took place on 24th Dec. 1987. So according to the prosecution just after 3 days of the arrest of the accused persons their identification-parade was conducted. Whether this fact is correct or not is to be judged from the statements of the witnesses. 9. PW-1 Ramjilal in his cross-examination has stated that they came to know about the arrest of the miscreants after 3 days of the incident. PW-6 Sukkho has also stated in his cross-examination that 8-10 days after the dacoity when he came to know that the looted ornaments had been recovered meant that the police had arrested the accused persons and on their information the articles were recovered. Similarly PW 7 Rekha has stated that 7-8 days after the incident they came to know that the dacoits had been arrested. All this shows that the accused persons were arrested just after 7-8 days of the incident which had taken place during midnight intervening 25th & 26th November 87 but their arrest was shown for 21st/22nd December 87. For a number of days the accused persons were detained at the police station. Immediately their arrest was not shown which was shown after all manipulation for 21st/22nd December 87. 10. The contention of the learned counsel for the appellants was that during this period the accused persons were shown to the prosecution witnesses. 11. For a number of days the accused persons were detained at the police station. Immediately their arrest was not shown which was shown after all manipulation for 21st/22nd December 87. 10. The contention of the learned counsel for the appellants was that during this period the accused persons were shown to the prosecution witnesses. 11. According to the prosecution just after arrest the accused persons gave information under section 27 of the Evidence Act and on the basis of that information the articles were recovered. But according to the prosecution witnesses they had come to know 7-8 days after the incident that the accused persons had been arrested and that the stolen articles were recovered. It means the arrest of the accused persons their giving information as well as the recovery are all false ones and they have been manipulated later on So the argument has great force that the articles which were alleged to have been recovered by the police were not so recovered and the accused persons who were arrested and the allegedly recovered articles were shown to the witnesses prior to holding their identification-parade. and this fact is sufficient to throw away the contention of the prosecution that the accused persons had been identified by the witnesses and the articles were recovered at the instance of the accused persons and that those articles were identified by the witnesses. 12. The report about the dacoity was lodged immediately on 26th November 87. At that time no list of stolen articles was submitted by any of the persons at whose houses dacoity was committed. Thereafter on 27th November 87 Ramsukh and Chandan submitted lists of articles which were stolen away from their houses. After lodging of the report and verifying from the houses about the looted properties the lists were prepared; these lists were submitted after verifying every- thing. but there are certain articles which were recovered by the police and identified by the witnesses but they had no mention in those lists. Even witnesses Sukkho PW-6 and Rekha PW-7 who identified the ornaments and who were examined during investigation on 29th November 87 i.e. after two days of the submission of the lists of the stolen articles did not state in their statements under section 161 Cr.P.C.about those ornaments which were identified by them during the identification- parade. Even witnesses Sukkho PW-6 and Rekha PW-7 who identified the ornaments and who were examined during investigation on 29th November 87 i.e. after two days of the submission of the lists of the stolen articles did not state in their statements under section 161 Cr.P.C.about those ornaments which were identified by them during the identification- parade. They identified these ornaments which were not even mentioned in the lists; and even then they did not mention it in their statements before the police on 29th November 87 that those were also the articles which were stolen away by the miscreants and that those ornaments also belonged to them. After a thorough search and verification the lists were prepared and submitted on 27th November 87. The two witnesses were further examined under section 161 Cr.P.C. on 29th November 87 by the police still they did not make any mention of the ornaments which they had identified subsequently. This shows that the ornaments which were identified by the witnesses did not belong to them. This type of identification has no value. The lists submitted by Ramsukh (Ex. P. 12) and Chandan Singh (Ex. P. 10) were perused and I find that both these lists do not contain the descriptions of the ornaments looted away. It was their duty to have mentioned in the lists detailed descriptions of the ornaments; mere mentioning that gold-chain and other gold- ornaments i. e. 'Top' 'Nathphool' 'Jhumke' etc. had been looted was not sufficient. In order to identify the ornaments it was the duty of those witnesses to have mentioned before identification that they would identify their ornaments on account of their particular descriptions or identities. But there is nothing on the record to show/prove this fact. 13. Apart from this aspect. there are some procedures to be adopted by the Magistrate before conducting identification-parade or ornaments and accused. The Magistrate has to take some precautions and he must make it clear that the identification-parade was being conducted fairly and that there is no doubt about the fairness of the Magistrate. But what I find here is that in the present case the identification-parade was not conducted by the Magistrate in a fair and proper manner. The Magistrate has to take some precautions and he must make it clear that the identification-parade was being conducted fairly and that there is no doubt about the fairness of the Magistrate. But what I find here is that in the present case the identification-parade was not conducted by the Magistrate in a fair and proper manner. It is very unfortunate that the Magistrate concerned did not act according to the principles of natural justice he did not care to see and know the precautions he had to take no doubt in the identification memo he has mentioned the fact that one gold chain had a mark 'Om' and in order to hide that identity he had put a shit on that ornament and similar chits on the other ornaments but if we look into statements of the witnesses we find that this was not the correct position ; none of the witnesses stated that one of the chains which had an identity of 'Om' was affixed with a chit and that similar chits were put on the other articles of similar pattern. It means no chit was affixed on an ornament of a particular pattern, which was having an engraving of word, Om'. Rut the learned Magistrate has saved his skin by mentioning in Ex. P. 11 this fact. which is contradicted by the witnesses. As per the statement of the Magistrate the packets in which the recovered ornaments were kept was a sealed-packet which was brought by the police and submitted before him ; be then broke the seal took out the ornaments and handed them over to one of the clerks of his court with the direction to bring similar ornaments from the market. The statement of the Magistrate is that the said clerk did not show those ornaments to the witnesses who were present at that time outside the court. I do not agree with this statement. How did the Magistrate know that the clerk who had gone with those ornaments to fetch similar type of ornaments did not show those ornaments to either the witnesses or other persons ? The learned Magistrate did not accompany the clerk nor did he send any person to check that clerk did not show those ornaments to any other person. How did the Magistrate know that the clerk who had gone with those ornaments to fetch similar type of ornaments did not show those ornaments to either the witnesses or other persons ? The learned Magistrate did not accompany the clerk nor did he send any person to check that clerk did not show those ornaments to any other person. So what was the guarantee that the clerk was a honest person and that he did not show the ornaments to the witnesses who were present at that time outside the court or that he did not meet the police officers outside the court ; and while bringing the similar ornaments they were not shown to the witnesses before giving them to the Magistrate. All these questions could be answered by the clerk concerned who was entrusted this duty but unfortunately that clerk has not been examined. So the statement of the learned Magistrate that the ornaments which were mixed with the recovered articles were not shown to the witnesses is not a correct statement. This is a very sad state of affair that the learned Magistrate did not follow the procedure and did not conduct the identification in a proper manner. No doubt the Magistrate would not go to fetch the similar ornaments from the market but it was his duty to have taken all precautions while bringing the articles for mixing them with the recovered ones at the time of the identification-parade. It was not fair for the Magistrate to have handed ever the articles to the clerk. for keeping with him for fetching similar articles from the market. The clerk should have been shown those articles in the court secretly. and he should have been asked to fetch similar articles without giving those articles to him. The learned Magistrate gave him all chance for showing the ornaments to the witnesses and this fact in itself is sufficient to discard the entire identification-parade of the recovered articles. 14. The recovery of the articles as mentioned above is also doubtful because prior to the arrest of the accused persons and before their giving information under section 27 of the Evidence Act the articles were recovered by the police as stated by the prosecution witnesses. So. 14. The recovery of the articles as mentioned above is also doubtful because prior to the arrest of the accused persons and before their giving information under section 27 of the Evidence Act the articles were recovered by the police as stated by the prosecution witnesses. So. the alleged recovery as well as the identification-parade of the ornaments are all false and on this ground the conviction of the appellants is bad. 15. It was also argued that after the recovery of the ornaments they were sealed in a packet which was kept in the 'Malkhana'. There is nothing on the record to show as to which seal was affixed on that packet whether a sealed-packet was kept who was the incharge of the 'Malkhana' whether the seal on the packet was not tampered with and whether the seal was in tact till the period when the packet was handed over to the Magistrate for identification. The Malkhana-In-charge has not been examined. So the prosecution also lacks its evidence that the seal which was affixed on the packet of the recovered ornaments was not tampered with and that it remained in tact. 16. The accused persons were allegedly identified by the witnesses. After going through the evidence and the statement of the Magistrate who conducted the identification-parade I am not satisfied that identification-parade was fairly done. As discussed above even the witnesses could identify the accused persons only because of the reason that at the time of the dacoity there was electric light at the house of the persons from where the properties were looted as well as in the village but I have come to the conclusion that this is incorrect that there was any light at the concerned houses or even in the village. In fact the night was a dark- night and there was no chance for the witnesses to see the faces or identify the miscreants during the occurrence. So when they could not identify the dacoits on that night bow could they identify before the learned Magistrate. In fact the night was a dark- night and there was no chance for the witnesses to see the faces or identify the miscreants during the occurrence. So when they could not identify the dacoits on that night bow could they identify before the learned Magistrate. The reason is obvious as is in the evidence the witnesses came to know after 7.8 days o the incident that the accused persons had been arrested by the police but their arrest was shown as after one month; and during this period the accused persons were with the police so there were all chances that they were shown to the witnesses and their arrest was shown later on. So this also creates suspicion about the fact whether the witnesses had identified the accused persons in fact and so I do not believe even the identification-parade conducted by the learned Magistrate hence the conviction of the accused persons on the basis of the identification-parade is also bad. 17. Another aspect is that it is in the evidence that recovered ornaments were prepared by one Mohanlal Saraf as stated by PW-4 Chandansingh and by Raghuveer Sonar of Bharatpur as stated by Sukkho PW 6. So those ornaments were prepared by these two gold-smiths. It was the duty of the prosecution to have examined both these persons to prove that those were the ornaments which were prepared by them. for the persons from whose houses they were looted away. Non-examination of these persons also throws away the prosecution case. 18. The learned counsel for the appellants in support of their arguments relied on the case of Narsingh vs. State of Rajasthan ( 1984 RLR 479 ) which was also under sections 395.396 & 397 IPC where the accused persons were convicted on the basis of their alleged identification and recovery of certain ornaments. There also the persons who had prepared the ornaments -Rukhri' were not examined; and while dealing with the aspect it was held that identification of the accused when not reliable conviction cannot be upheld: and that as there was no convincing evidence about the recovered 'Rukhri' that it belonged to the complainant the alleged recovery was found having no value and no conviction could be passed on that basis. 19. 19. In Ramkaran vs. State of Rajasthan (1988 RCC 65) it was held that in the case of recovery of articles it was the duty of the prosecution to prove that the recovered articles were in-tact till they reached for the identification-parade; and that if the prosecution failed to prove that the seals remained in-tact from the date the packets were sealed till the date and time they were brought before the Chairman of the Nyay-Panchayat for identification it created suspicion. 20. Reliance was also placed by the learned counsel for the appellants on the cases of Radhey Shyam and Ors. v. State of Rajasthan, (1985 RCC 145) . It was observed in those two cases by this Court that when no description was given by the witnesses in their statements under section 161 Cr. P. C or in the court it was most unsafe to hold the appellants guilty on the basis of identification only which was not conducted according to the provisions of law. 21. In Vakil Singh vs. State of Bihar ( AIR 1981 SC 1392 ) their Lordships of the Supreme Court observed as under : "In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description it will be impossible for us to convict any accused on the basis of a single identification. in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons therefore the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness apart from the reasons that were given by the trial court. The High Court however has chosen to rely on the evidence of a single witness completely overlooking the facts and circumstances mentioned above. The High Court however has chosen to rely on the evidence of a single witness completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 31/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember the features of the accused and he is therefore very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness." 22. Thus in view of my above discussion and in the light of the principles enunciated in the various decisions the conviction of the present appellants by the Special Judge is found to be incorrect. The prosecution in my considered view has failed to prove beyond reasonable doubt that the appellants were persons who had committed the dacoity as alleged by it. 23. In the result both the appeals are allowed. Neither of the appellants is found guilty of the offences for which they have been convicted. They all are therefore acquitted. Appellants Lakshmi and Vijendia Singh are on bail; their bail bonds are cancelled; and they need not surrender. Appellants Netrapal Shyam Raju alias Rajveer and Dhanpal are in jail; they be set at liberty forthwith it not required in any other case.Appeals allowed. *******