JUDGMENT 1. - Learned District and Sessions Judge, Jaisalmer convicted and sentenced the accused appellant by his judgment dated 12.10.1995 as follows : Under section 302 IPC - Life imprisonment & fine of Rs. 1000/- Under section 307 IPC - 10 Years' RI & fine of Rs. 1000/-. Under section 333 IPC - 3 Years' RI & fine of Rs. 1000/-. Under section 147 1PC - 1 Years' RI & fine of Rs. 1000/-. Under section 27 of Arms Act, 3 Years' RI & fine of Rs. 1000/-. In default of payment of fine for each offence, he was ordered further to undergo three months S.I. Learned Sessions Judge has directed all the sentences to run concurrently. 2. It is against this judgment and conviction that the accused appellant has preferred this appeal. 3. The prosecution case is that on 10.4.1986, an information was received from the SHO, Sam (Jaisalmer) about the presence of smugglers near village Sawa. The Superintendent of Police, Jaisalmer formed three parties under the charge of Dy. S.P., Girdharilal, Dy. S.P., Purshottam and the Company Commandar Jugat Singh to ap-prehend the smugglers. The parties were equipped with rifles and light machine guns. At about 7 a.m. on 19.4.1986, police parties proceeded to round up t';e smugglers. At 3 p.m. in village Shobhminora, there was an encounter between the smugglers and the police parties as a result thereof constable Phool Chand (deceased), Brigal and Gulam Shah received injuries, the police jeeps were damaged. There was an, per encounter at Ehelak. The smugglers were successful to run away in the darkness if night. On the same day at about 7 p.m., Dy. S.P. Girdharilal prepared the report at Check and sent it to the Police Station Sangot. On its basis, FIR Ex. P/25 was drawn and case under sections 307, 353, 332, 323 IPC and Section 25 of the Arms Act was registered. The investigation commenced. Constables Kojraj Singh, Punjraj Singh and Gulam Shah identified eight smugglers while they were being persuaded by the parties. During the investigation, injured constable Phool Chand succumbed and the case was registered under section 302 1PC. Challan was presented against certain other persons as well whose case has been finally decided by the Division Bench of Hon'ble Mr. Justice Milap Chandra Jain and Hon'ble Mr. Justice R. Balia on 2.3.1992 (D.B. Cr. Appeal No. 168/89 187/89 and 211/89). During the investigation, injured constable Phool Chand succumbed and the case was registered under section 302 1PC. Challan was presented against certain other persons as well whose case has been finally decided by the Division Bench of Hon'ble Mr. Justice Milap Chandra Jain and Hon'ble Mr. Justice R. Balia on 2.3.1992 (D.B. Cr. Appeal No. 168/89 187/89 and 211/89). The present accused appellant was absconding and challan against him was presented before the Chief Judicial Magistrate, Jaislmer in the year 1990. The case was committed to the learned Sessions Judge, Jaisalmer. He framed relevant charges against the accused appellant. Prosecution examined as many as 27 witnesses. Then the accused appellant was examined under section 313 Cr.P.C. He did not produce any witness in defence. His simple case is that he has been falsely implicated. After hearing both the parties, learned Sessions Judge, Jaisalmer convicted and sentenced the accused appellant as stated above. 4. We have heard the learned counsel for the appellant as well as learned P.P. 5. Learned counsel for the accused appellant submitted that the case of the prosecution is based on the testimony of PW 5 Gulam Shah and PW 6 Punjraj Singh. He submitted that Kojraj Singh has not been examined. He submitted that it is clear from statements of these two witnesses that they were not knowing the accused appellant prior to the occurrence and, therefore, they should have been asked to identify the at cused appellant but no identification parade was held by the prosecution in which these witnesses might have taken part. No explanation is coming forward about it. He also contended that the identification before the trial Court, not supported by the prior test identification is of no value. He further contended that Girdharilal, Dy. S.P., and Jugat Singh have of course taken part in the identification parade, but it is of no value. He further submitted that the witnesses could not have identified the appellant at all. He also contended that the size and nature of the injuries received by the deceased Phool Chand indicate that they were caused by the shots fired by the police party and not by the smugglers. 6. On the other hand, learned P.P. tried his best to support the judgment under challenge. He also contended that the size and nature of the injuries received by the deceased Phool Chand indicate that they were caused by the shots fired by the police party and not by the smugglers. 6. On the other hand, learned P.P. tried his best to support the judgment under challenge. He contended that the previous identification of the police from Gulam Shah and Punjraj Singh was not necessary as they were knowing the appellant from before. He submitted that Girdharilal, Dy. S.P. and Jugat Singh identified the appellant before the Executive Magistrates and, therefore, the conviction of the appellant should be maintained. 7. The first question, therefore, for consideration in this appeal, is whether the prosecution witnesses Punjraj Singh and Gulam Shah were knowing the accused appellant from before. We have read the statements of these two witnesses with great care and caution. PW 5 Gulam Shah has stated that the appellant used to visit Jaisalmer and also worked in the famine relief area. This witness was a driver with the police party led by Jugat Singh. He has stated that he had seen the accused appellant about four or five years before the date of occurrence. He has further stated that at the time of firing there was a distance of about 300 panwdas' between the smugglers party and the police party. According to him indiscriminate firing was going on. When he saw towards the smugglers, he found that the faces of some of the smugglers were covered while of others were open. According to the learned counsel for the accused appellant the witness could not have identified the accused appellant from such a distance and secondly when he had seen the appellant four or five years ago, he could not have identified him at the time of incident. He has drawn our attention to the book 'Criminal Investigation' by Dr. Hans Gross, Fifth Edition, page 159, which mentions that presuming the eyesight to be normal and the light good, one is able in broad daylight to recognise: (a) Persons whom one knows very well, at a distance of from fifty to ninety yards; when there are particular and very characteristic signs, 110 yards; in exceptional cases up to 165 yards. (b) Persons one does not know very well and has not often seen, from twenty eight to thirty-three yards. (b) Persons one does not know very well and has not often seen, from twenty eight to thirty-three yards. (c) People one has only seen once, sixteen yards. So since Gulam Shah had seen the accused appellant only once some time four or five years ago, he could have identified only if he had seen from 16 yards or at the most if he did not know the accused appellant very well and had not often seen from 28 to 33 yards. This witness Gulam Shah could not have been in a position to identify the accused appellant from a distance of 300 panwcdas' which comes to about 450 yards. So Gulam Shah cannot be believed. There appears to be no reason as to why he did not take part in any test identification parade. 8. So far as Punjraj Singh is concerned, he is a constable at Police Station Jaisalmer. According to him, the accused appellant used to visit Jaisalmer, therefore, he identified him. But at the time of occurrence he was about 200 panwdas' (350 yards) away from the smugglers. He had seen the appellant three or four years before the occurrence near Ghadisar Pole when they crossed each other while going to their respective villages. So the witness and the appellant were not very familier to each other as they had met only once. In his case also the standard which we have applied to Gulam Shah will apply. He could not have identified the accused appellant from a distance of about 350 yards as he has so stated. Therefore, these two star witnesses cannot be believed that they had identified the accused appellant at the time of occurrence. Identification in Court during trial is of no value in absence of pretrial test identification. 9. Another set of two witnesses is of Girdharilal and Jugat Singh. They took part in the test identification parade before the Executive Magistrates. According to PW 4 Jugat Singh, who was also a police constable, there was a distance of about 200 yards between the smugglers and him. According to him it were Punjraj Singh and Gulam Shah who had identified the smugglers. They were behind this witness. It appears from his statement that the prosecution forgot to exhibit the test identification memo from him and it was during re-examination that the document was exhibited. According to him it were Punjraj Singh and Gulam Shah who had identified the smugglers. They were behind this witness. It appears from his statement that the prosecution forgot to exhibit the test identification memo from him and it was during re-examination that the document was exhibited. But it is of no avail to the prosecution because the witness had stated in an earlier statement Ex. D/1 that he had seen the faces of the smugglers but he was not in a position to identify because he did not know them from before. Ex. D/1 was recorded during the trial of the Sessions Case No. 31/87 before the learned Sessions Judge, Jaisalmer. Now the prosecution is coming and saying that this witness identified the accused appellant correctly before the Magistrate on 29.3.1989. We find from the record that the accused appellant was arrested on 16.3.1989 and the test identification parade was conducted on 29.3.1989 while the occurrence had taken place on 19.4.1986. It was almost about three years' period which had elapsed. 10. Our attention has been drawn to Wakil Singh & Ors. v. State of Bihar, 1981 SCC (Cr.) 634 , wherein test identification parade was conducted about 3-1 /2 months after the occurrence. It was not relied and it was held that reasonable possibility of mistake in identification cannot be excluded. In State of Rajasthan v. Babu, 1986 Cr.L.R. (Raj.) 277 , delay of ten days in identification parade was held to be suspicious when the delay was not explained. In Manzoor v. State of U.P., 1982 SCC (Cr.) 356 , identification of the accused by a witness nearly two months later in test identification parade was held to be suspicious. So in the case in hand, when the occurrence had taken place on 19.4.1986 and the test identification parade was conducted on 29.3.1989, it is of no assistance to the prosecution. An explanation is given that the accused appellant was arrested on 16.3.1989 but even then the delay in the facts and circumstances of this case is fatal to the prosecution. 11. Next material witness is Girdharilal, Dy. S.P. PW 24 on whom the prosecution has relied. He was Dy. S.P. of the Jaisalmer District at the relevant time. An explanation is given that the accused appellant was arrested on 16.3.1989 but even then the delay in the facts and circumstances of this case is fatal to the prosecution. 11. Next material witness is Girdharilal, Dy. S.P. PW 24 on whom the prosecution has relied. He was Dy. S.P. of the Jaisalmer District at the relevant time. According to him the SHO Sam informed the Superintendent of Police on 18.6.1986 at 9.00 p.m. that 9 or 10 smugglers were seen in Khaba area who are carrying smuggled goods and it was expected that they would go towards Khohari. According to the witness, four parties were formed to chase the smugglers. He was the leader of one party. He along with his party went on patrolling duty but the smugglers could not be found. However, in the morning three parties were formed and the Superintendent of Police was requested to send additional force. Foot steps of camels were found. When the party led by this witness reached near Shorn village, the smugglers suddenly started firing. The police party led by the witness also fired in defence. This encounter lasted for about 11/2hours. He has stated in examination in chief that Kojraj Singh, Punjraj Singh and Gulam Shah who were the members of this party identified some of the smugglers including the accused appellant. The witness had also seen them. In this encounter two jeeps of police were damaged and Phool Chand, Brijlal and Gulam Shah were injured. They were sent for treatment to Sangar and Jaisalmer. The witness again chased the smugglers following the foot steps. They reached 10 km. away and again the smugglers started firing. In defence the police party again fired, what had happened during the day was reported to the Superintendent of Police vide Ex. P/21 which is the FIR of this case. So according to him, he did not know the accused appellant from before and he saw him for the first time on the date of encounter i.e. 18.4.1986. At that time the distance between two was about 100 yards. The witness thereafter saw the accused when he was put for identification on 6.4.1989 i.e. about after three years. We, already relying on different rulings (supra), are of the view that such a test identification parade after about three years from the date of occurrence is of no value to the prosecution. The witness thereafter saw the accused when he was put for identification on 6.4.1989 i.e. about after three years. We, already relying on different rulings (supra), are of the view that such a test identification parade after about three years from the date of occurrence is of no value to the prosecution. The witness could not have identified the accused appellant. The explanation of the prosecution is that the accused appellant was arrested on 16,3.1989 but it is clear from the record that even thereafter the test identification parade in which this witness took part was held on 6.4.1989 i.e. about 20 days of the arrest. Such an identification is of no help to the prosecution. 12. The two test identification parades were conducted by the Executive Magistrates. Ex. P/27, identification memo, mentions that Girdharilal PW 24 correctly identified the accused appellant. It also mentions that eight persons were mixed with the appellant but their names are not mentioned in the memo. This test identification parade was conducted by PW 27 Rajpal Singh Chouhan who was the Assistant Collector and Executive Magistrate, Jaisalmer on 6.4.1989. He has admitted that the persons who were mixed with the appellant were not similar. He has also admitted that the appellant was not kept `baparda' before the test identification parade was conducted. Thus the identification parade conducted by Rajpal Singh Chouhan in relation to the appellant by the witness PW 24 Girdharilal Sharma is not at all reliable because firstly it was conducted almost after three years of the occurrence, secondly, the persons mixed during the parade were not similar and thirdly the accused appellant was not kept 'baparda' before the test identification parade. Similarly, the identification parade relating to the accused appellant conducted by PW 1 Bhanwarlal. Ex. P/1 is also not of any help to the prosecution. This test identification parade was conducted on 29.3.1989 by PW 1 Bhanwarlal Nawal. PW 1 Bhanwarlal Nawal was the Executive Magistrate and he got accused appellant identified from Jugat Singh who correctly identified him and put his signatures on Ex. P/1. The witness has admitted that nine persons were mixed in the identification parade but he admits that Ex. P/21 does not mention that the appellant was kept 'baparda' before the test identification parade. He has also not mentioned the names of the persons who were mixed with the accused appellant. P/1. The witness has admitted that nine persons were mixed in the identification parade but he admits that Ex. P/21 does not mention that the appellant was kept 'baparda' before the test identification parade. He has also not mentioned the names of the persons who were mixed with the accused appellant. Jugat Singh was the police constable and the witness has admitted that he did not know as to how many cases and for how many days the accused appellant remained in police custody. So far as the value of this test identification parade is concerned, we have already discussed about it while appreciating the evidence of Jugat Singh. This test identification parade also does not help the prosecution to connect the accused appellant with the crime. As we have already stated, another material witness Kojraj Singh has not been examined by the prosecution during the trial. 13. In view of above discussion it is not possible to hold that the accused appellant took part in the said encounter and fired towards deceased Phool Chand and injured Brijlal and Gulam Shah. Thus this appeal deserves to be allowed. 14. Accordingly, the appeal is allowed and the accused appellant is acquitted of the charges levelled against him. He is in custody and shall be released forthwith, if not wanted in any other case.Appeal allowed. *******