JUDGMENT 1. - This appeal is directed against the judgment dated 8.2.79, by which, the Addl. Sessions Judge No. 2, Dholpur, acquitted the respondents of the charges under sections 395, 396 & 365, IPC. 2. According to the prosecution story, on the intervening night of 26th & 27th July, 76, Mojiram, along with his wife and children, was sleeping in the verandah of his house, when at about 11PM, 10-11 dacoits armed with guns, Pachphers and axes came there and started beating his wife and niece. A lantern was burning in the verandah. Hearing their noise, villagers Mokamsingh, Tikamsingh. Maharajasingh, Omprakash, Ranisingh and Jawahar came there with torches in their hands. The dacoits thereupon fired at them and gave beating to a number of persons and snatched away ornaments. The dacoits were alleged identified in the torch-light. Mokamsingh also put on fire some woods lying nearby, which created sufficient light to identify the dacoits. On this report, a case under sections 395, 397 & 365, IPC, was registered. After usual investigation, a challan was filed in the court of Judicial Magistrate, Etmadpur (Agra), from where, the case was transferred under the orders of Supreme Court to the jurisdiction of Dholpur in Rajasthan. The case was tried by the Addl. Sessions Judge No. 2, Dholpur, who framed charges against the accused persons under sections 395, 397 & 365, IPC, who pleaded not guilty and claimed trial. The learned trial judge, after the trial, did not find the accused persons guilty of the charges levelled against them and so, be acquitted them of all the charges. 3. The learned counsel for the respondent submitted that this is a case which has been tried by the Addl. Sessions Judge No. 2, Dholpur under the orders of the Supreme Court. The dacoity had taken place at Gadi Sebzad, PS- Berhan, Agra, in U P. The Government of India organised a ceremony and persuaded the dacoits to surrender before the police; and in that case, the Government would try to rehabilitate the dacoits. Under that scheme, both the accused persons surrendered before the police; Harvilas on 29th Aug.,76, and Ramlakhan on 11th Oct.,76. After their surrender, they were prosecuted, and their trial commenced in Rajasthan. It was argued that the trial court acquitted the appellants on the ground that the identification-parade of the accused persons was belated. Under that scheme, both the accused persons surrendered before the police; Harvilas on 29th Aug.,76, and Ramlakhan on 11th Oct.,76. After their surrender, they were prosecuted, and their trial commenced in Rajasthan. It was argued that the trial court acquitted the appellants on the ground that the identification-parade of the accused persons was belated. The court observed that in the torch-light, lantern or by burning of wood, it was not possible to identify the dacoits. It was also observed by the trial court that during identification-parade, the witnesses had committed some mistake, and on account of that fact, according to the trial court, it was by chance that the witnesses identified the accused persons. So, it did not believe the identification of the accused persons. It was also held by the trial court that while conducting the identification-parade of the accused persons, the police had not taken the precautions. which were necessary, nor were they kept Ba-Parda before the identification-parade has no value. It was further held by the trial court that prior to their identification-parade, the accused persons were shown to the witnesses. So, the trial court, on the basis of all these aspects, did not believe the identification of the accused persons and acquitted them. 4. There was no recovery from the possession or at the instance of the respondents. Thus, the argument of the learned counsel for the respondents was that as there were no recoveries at the instance of the accused persons, and as their identification-parade was also not believed by the trial court, the accused respondents cannot be convicted It was argued that according to criminal jurisprudence, especially in dacoity cases, where the accused persons are not known to the witnesses, it is the duty of the prosecution to keep the accused persons Ba-Parda, after their arrest, that is to say, from the very day when they are arrested; and without any delay, their identification-parade should be held, so that, the witnesses who had seen the dacoits while committing dacoity, are able to identify them as early as possible. The idea of keeping Ba-Parda means that there should be a fair identification-parade. If the accused persons are not kept Ba-Parda, then, there are all chances for their been seen by the witnesses, prior to the identification-parade. But, in this case, according to the learned counsel for the respondents, the position is a different one. The idea of keeping Ba-Parda means that there should be a fair identification-parade. If the accused persons are not kept Ba-Parda, then, there are all chances for their been seen by the witnesses, prior to the identification-parade. But, in this case, according to the learned counsel for the respondents, the position is a different one. It was contended that the respondents were known dacoits, and they were not only arrested but they surrendered themselves. The dacoits who committed such offences and were charge-sheeted for committing dacoity, were asked by the Government to surrender themselves before the police, so that, they might be rehabilitated in future life; and under that scheme, the respondents had surrendered themselves. The argument of the learned Public Prosecutor was that when a person is arrested, he is kept Ba-Parda, so that, witnesses may not see him before his identification-parade; and that as this procedure was known to the accused-respondents in this case, it was their duty to have kept themselves Ba-parda, and they should not have waited for the police to keep them Ba-Parda; it was their duty to hide their faces; they know how to be Ba-Parda when they were conversant with the procedure of the trial, and they know that they should be kept Ba-Parda; and so, according to the learned Public Prosecutor, if the police failed to keep the respondents Ba-Parda, that has no material effect on the merits of the case. 5. I do not agree with the above contention of the learned Public Prosecutor. Criminal jurisprudence is the same for each and every offender, which says that it is the duty of the prosecution to keep the accused persons Ba-Parda, when they are not known and when it is alleged that they were identified by the witnesses at the time of commission of the offence. So, in this case, it was not the duty of the accused persons to keep themselves Ba-Parda, nor was it their duty to hide their faces; but, a fair investigation and trial require that the police should keep the arrested persons Ba-Parda. It appears that the argument of the learned Public Prosecutor lays down a new principle in the criminal jurisprudence, which means that it is the duty of the accused persons to prove themselves innocent, and if one fails to prove himself innocent, then, he is to be punished. But, it is not the law. It appears that the argument of the learned Public Prosecutor lays down a new principle in the criminal jurisprudence, which means that it is the duty of the accused persons to prove themselves innocent, and if one fails to prove himself innocent, then, he is to be punished. But, it is not the law. It is the duty of the prosecution to prove beyond reasonable doubt, its case; and if any doubt is created in the prosecution case, then, the benefit of the doubt should be given to the accused; such benefit is never given to the prosecution. Therefore, it is the duty of the prosecution to keep the accused persons Ba-Parda and see that their faces are not seen by the witnesses prior to their identification-parade. And, no duty can be fastened on the accused persons in this regard. 6. Thus, the argument of the learned Public Prosecutor, has no substance, which is against the principles of criminal jurisprudence. 7. The next argument on behalf of the State was that during the identification-parade, some mistake was committed by the prosecution witnesses; one they identified one another person and then the correct person. In this regard it was argued that the mistake was unavoidable, because, the witnesses being human-being, it could not be expected that each and every witness would identify correctly, each accused at once. However, in criminal cases, it is a question of life and death of a person. So, simply saying that some mistake was committed and the same may be ignored, is no argument. If the witnesses committed some mistake and it creates some doubt in their testimony, if benefit must go to the accused. 8. While referring to the judgment of the trial court, we find that the trial court has discussed the point of identification of the accused persons, by the witnesses. Allegedly, the witnesses could identify the accused because of the reason that there was torch-light, lantern-light and light from the burning-wood, which all created sufficient light and in that light, the accused persons were identified by the witnesses. Allegedly, the witnesses could identify the accused because of the reason that there was torch-light, lantern-light and light from the burning-wood, which all created sufficient light and in that light, the accused persons were identified by the witnesses. In this context, the relevant portion of the judgment of the trial court, was read over by the learned Public Prosecutor, in detail, and it was argued that the trial court based its judgment on conjectures; there were minor contradictions in the statements of the witnesses, but, the trial court has given too much value to them. According to him, there was sufficient light available for identifying the accused persons; and so, the trial court has committed error in not believing the statements of the prosecution witnesses, and rejecting the whole identification-parde in a very light manner. 9. In reply to the arguments of the learned Public Prosecutor, the learned counsel for the respondents argued that no illegibility has been committed by the trial court in finding the accused-respondents not guilty of the charges. The accused persons surrender old in the months of August & October, 76; they were kept in jail; and there is no indication by the police to have kept them ba-Parda. In this regard, the statement of PW 9 Surajmal, S P., Tonk, was read over to me. Surajmal has stated that on 29th Aug., 76, accused Harvilas was put into Dholpur Jail, and there were instructions to keep this accused Ba-Barda, while accused Ramlakhan entered the jail on i 1th Oct.,76; but, there were no instructions for keeping this accused 'Ba-Parda. So, from the statement of Surajmal, it is clear that no instructions were given so far as accused Ramlakhan was concerned for keeping him Ba-Parda. Regarding Harvilas, the statement of Surajmal is not correct, because, there is nothing on the record to prove that the police department had given any instructions to the jail authorities to keep Harvilas Ba Parda. He had surrendered himself, arrested and was then sent to jail. When there is no note on the jail-papers while entering the jail, what was the basis for Surajmal PW. 9 to say that instructions were given to keep Harvilas Ba-Parda'. Who had given him the instructions?. The police under whose direction Harvilas was sent to jail, did not give this instruction to the jail authorities to keep him Ba-Parda. When there is no note on the jail-papers while entering the jail, what was the basis for Surajmal PW. 9 to say that instructions were given to keep Harvilas Ba-Parda'. Who had given him the instructions?. The police under whose direction Harvilas was sent to jail, did not give this instruction to the jail authorities to keep him Ba-Parda. I do not see any reason to believe the statement of Surajmal PW 9 that Harvilas was ordered to be kept Ba-Parda. About Ramlakhan, he specifically stated that there was no necessity to keep him Ba-Parda. Both Harvilas and Ramlakhan he surrendered before the police; they both were facing trial for committing dacoity; and so, it cannot be believed that for Ramlakhan, there would be no instructions for keeping him Ba-Parda', but for Harvilas, it would be given. If the local police was considering about keeping the accused Ba-Parda, that instruction should have been for both the accused persons; otherwise, there was no reason for considering it for accused Harvilas alone. So, the statement of Surajmal PW 9 in this respect is found to be an incorrect statement. Thus, the position becomes clear that both the accused persons were not kept Ba-Parda, and this fact is not disputed by the learned counsel for the State. So, the accused persons were not kept Ba-Parda; and after entering them in the jail, their identification-parade was conducted on 14th Apr., 1977, i. e., after about 8 months of the surrender by Harvilas and after 6 months of the surrender by Ramlakhan. Why their identification-parade was not conducted immediately when they surrendered? Where was the necessity for keeping them in jail for such a long time and then having their identification-parade conducted. No explanation has been given by the prosecution. It was the duty of the prosecution to have satisfied the Court that under some unavoidable circumstances, they were unable to hold their identification-parade immediately after the arrest of the accused persons. As there is no explanation to it, this identification-parade is a belated one, which affects the genuineness and correctness of the prosecution case; and the trial court has not committed any mistake in finding the parade to be belated and not placing any reliance on it. Surajmal PW 9 has stated in his statement that twice Harvilas was taken to Government Hospital Dholpur. Surajmal PW 9 has stated in his statement that twice Harvilas was taken to Government Hospital Dholpur. There is nothing on the record to show that from the jail to Dholpur Hospital, Harvilas was taken Ba-Parda. So, there were all chances of his being seen by the witnesses while Harvilas was being taken to hospital from the jail. Similarly, he has stated that Ramlakhan also in the year 1976, was taken from Dholpur Jail to Dholpur Hospital; and this witness has not stated that Ramlakhan was taken to hospital Ba-Parda from the jail So, the evidence shows that the accused persons were takeu from the jail to hospital not 'Ba-Parda, but in open faces; so, there were all chances of their being seen by the witnesses. 10. Another argument advanced by the learned counsel for the respondents was that the accused persons had surrendered themselves in an open function; and they did not surrender privately or secretly in a room; they surrendered before the police in a ceremony, which was witnessed by hundreds of persons. So, in such circumstances also, there was all possibility that the accused persons were seen by the witnesses. This aspect cannot be ruled out, which also creates a suspicion in the correctness of the identification of the accused persons. 11. Mst. Gulkandi PW 4, who has identified the accused persons, has no doubt stated that she did not attend the function when the accused persons had surrendered. This is only her statement; and it is not that point that is to be rebutted by the accused persons whether or not Mst. Gulkandi was present at the time of the ceremony; but, the question is whether the accused persons had surrendered in an open place; whether there were chances of their being seen by the other persons. Mst. Gulkandi could not be present there, but, this fact cannot be ignored that there were chances of their being seen, when the accused persons had surrendered before the police. In this respect, one very important aspect which is to be given more weight is not examining Pooran, son of Mojiram, at whole place, the dacoity was committed; and after commission of the dacoity, the accused persons abducted Pooran. So, Pooran was an ordinary person, but a very material and star-witness of the prosecution. In this respect, one very important aspect which is to be given more weight is not examining Pooran, son of Mojiram, at whole place, the dacoity was committed; and after commission of the dacoity, the accused persons abducted Pooran. So, Pooran was an ordinary person, but a very material and star-witness of the prosecution. Pooran being the son of Mojiram, at whose place, the dacoity was committed, was taken away by the accused persons and kept with them for a number of days, and then, he was released. So, Pooran had all opportunities and chances to know the accused persons by their faces very well. He was seeing the accused persons while he was in their custody. So, Pooran was the proper person who could have identified the accused persons apart from the fact that there was torch-light, lantern or other light, but, he was that persor who remained with the accused persons for a number of days. He could not only identify them. But, he was the person who know very well by all their habits, conversations etc , and he also knew what conversation had taken place in his presence while in the custody; and when this identification-parade was conducted. Pooran was released; he was with his father, by was he not asked to identify the accused persons? Pooran of course was asked to identify the accused persons in the jail, and he failed to identify them. A person who remained with the accused persons for a number of days, and who knew them very well, could not identify them at the time of the identification-parade, means that the accused persons were not the persons who had abducted Pooran and kept him in their custody for a number of days. This also indicates that the accused persons were not those who had committed dacoity at the house of Mojiram. When the accused persons, along with other dacoits had taken Pooran and kept him for a number of days, Pooran should have identified them at the time of their identification parade, but, he could not identify them. And, another fatal aspect is that Pooran was not examined as a witness by the prosecution. Why was he suppressed? The only explanation could be that because he could not identify the accused persons at the time of their identification-parade. And, another fatal aspect is that Pooran was not examined as a witness by the prosecution. Why was he suppressed? The only explanation could be that because he could not identify the accused persons at the time of their identification-parade. the prosecution might have thought that his evidence would be of no value, and that is why, they did not examine Pooran. So, non-examination of Pooran and non-identification of the accused persons by Pooran, throws away the entire prosecution case. It throws away the entire identification-parade, and all the reasons given by the learned Addl. Sessions Judge disbelieving the identification-parade is strengthened by this fact that Pooran was not examined and he could not identify the accused persons. The learned Addl. Sessions Judge, in his judgment in paras 11 onwards, has discussed each aspect regarding the identification of the accused persons. He has discussed the possibility of identifying the accused persons in the torch-light, lantern-light or in the light which was created by burning of wood. A detailed and elaborate discussion has been made in the judgment with regard to this aspect; and after reading the relevant paras of the judgment, it seems that the trial court has correctly arrived at the conclusion; it has rightly appreciated the evidence; and has given cogent reasons for disbelieving the prosecution witnesses about identifying the accused persons. It is not necessary to repeat the entire judgment and the reasonings here, but, suffice it to say that the trial court has elaborately discussed this aspect; correctly arrived at the conclusion; and rightly discarded the evidence of identification 12. The learned counsel for the respondents relied on the judgment of this Court in the case of Noor Khan v. State of Rajasthan ( 1984 RLR 329 ), in which identification of the accused persons in torch-light by the witnesses, at the time of the alleged decoity, was discussed ; and it was held that it was not possible that the culprits would throw light on one anothers face, nor that they would give any chance to the inmates of the house to identify them; and the prosecution case was disbelieved. Reliance was also placed on the case of Narsingh etc. v. State of Rajasthan ( 1984 RLR 479 ), in which, I was one of the members. Reliance was also placed on the case of Narsingh etc. v. State of Rajasthan ( 1984 RLR 479 ), in which, I was one of the members. That case was also of dacoity, based on the identification of the accused persons; and after discussion, it was observed that the identification-parade was not correctly held, and so, conviction could not be passed on that basis. In that case, it was also argued that descriptions of the accused persons were already given to the witnesses prior to their identification-parade and so, it was hold that such identification-parade has no value. 13. In the case of Wakil Singh v. State of Bihar (1981 SC 1392 ), it was observed by their Lordships as under : "None of witnesses gave any description of dacoits in their statements or in oral evidence nor gave any identification-marks, such as stature of accused or whether they were fat or thin or of fair colour or black colour. In the absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification." 14. In the present case, the report was lodged by Mojiram, who did not give any description of the decoits. His statement was recorded by the police under section 161, Cr. P. C., and then in the court. The statements of the witnesses who had identified the accused, were also recorded, but, none of the witnesses has given any description of the dacoits them they allege to have identified at the time of the commission of the dacoity. So, mere identification of the accused persons at the time of the identification-parade, has no value; and on the basis of such identification, it is not fair and justifiable to pass conviction against the accused persons. 15. It was argued that the witnesses had seen the accused persons in the light of lantern. The lantern has been shown in the site-plan, and according to the learned counsel for the State, Mst. Gulkandi was standing near the lantern. She was beaten up by the dacoits; and she could identify the accused persons in the light of that lantern. It was argued that the witnesses had seen the accused persons in the light of lantern. The lantern has been shown in the site-plan, and according to the learned counsel for the State, Mst. Gulkandi was standing near the lantern. She was beaten up by the dacoits; and she could identify the accused persons in the light of that lantern. As held in the case of Kalyan and others v. State of Rajasthan ( 1987(1) RLR 282 ), a division bench of this Court, in which I was one of the members, has held that the conviction of the accused persons could not be sustained, as the identification of the accused persons in the light of lantern, was not reliable. 16. It was argued on behalf of the respondents that Banisingh PW2 was also examined by the prosecution, but, he was declared hostile and he did not corroborate the prosecution story, though, he had identified the accused persons in the jail. 17. In view of my above discussion and going through the entire judgment of the trial court, I find no infirmity in the said judgment, which is based on cogent reasoning's; and therefore, the trial court has not committed any error in acquitting the accused persons.In the result, there is no substance in this State-Appeal, which is hereby dismissed. The respondents are on bail. They need not surrender. Their bail-bonds are hereby cancelled. *******