JUDGMENT 1. - These three appeals arise out of two judgments of the Special Judge (Dacoity Affected Area) & Additional Sessions Judge, Dholpur in Sessions Case No. 8 of 1996 arising from one and same F.I.R. The charge - sheet in this case for the offence punishable under Section 395/396 IPC was submitted by the police after investigation against these three appellants, but subsequently the accused appellant Murari had absconded and the trial against the two accused appellants in Criminal Appeals No. 396 of 1998 and 550 of 1998 continued. They have been convicted under the judgment and order dated 24th of April, 1998 for the offence punishable under Sections 395 and 396 IPC and sentenced to undergo life imprisonment and a fine of Rs. five thousand each, in default of payment of fine to further undergo two years, rigorous imprisonment. 2. After this decision, the accused appellant in D.B. Criminal Appeal No. 834 of 2001 jointed the trial and the learned trial court under its judgment and order dated 8th of October, 2001 convicted and sentenced to him for the offence under Sections 395 and 396 IPC and ordered to undergo imprisonment for life and a fine of Rs. five thousand, in default of payment of fine to further undergo two years, rigorous imprisonment. Thus these appeals are taken up for hearing together. 3. From the record we find that in the matter the evidence upto PW-4 is common. Statements of the witnesses from PW-5 to PW-12 were recorded during the period when other accused Murari was absconding. On his surrender the statements were recorded of witnesses from PW-5 to PW-20. 4. The facts of the case are that Upendra Sharma, (PW-1) submitted a written report (Ex.P2) to the S.H.O.. Police Station Kolari, District Dholpur on 21st of December, 1995 camp at Hospital, at 6.30 AM. On the basis of this report, FI.R. (EX.P13) was chalked out at Police Station Kolari and criminal case No. 279 of 1995 was registered under Sections 395, 396 and 397 IPC against five to seven unknown miscreants. 5. In the report Ex.P-2 it is alleged that on 20th of December, 1995 in the evening at 5.00 PM the complainant accompanying his elder brother Satyendra, Kanta Prasad Sharma, Raghunath son of Gopi Chand were going on a tractor from village Mania to their village Shastnagar. When they approached the bank of river `parvati'. 5. In the report Ex.P-2 it is alleged that on 20th of December, 1995 in the evening at 5.00 PM the complainant accompanying his elder brother Satyendra, Kanta Prasad Sharma, Raghunath son of Gopi Chand were going on a tractor from village Mania to their village Shastnagar. When they approached the bank of river `parvati'. they were stopped by five to seven persons who were having with them guns and `kattas'. They started looting. The complainant was robbed of Rs. two thousand and a watch. Kanta Prasad and Raghunath were also robbed of their money. Satyendra who resisted was caught hold of by one of the robbers and another fired at him. Satyendra fell down. The complainant and others tried to help him, in the meanwhile the miscreants/robbers by firing in air, made them scar, (sic scare) 6. Injured Satyendra was taken to the Dholpur Hospital where he was declared dead. 7. During investigation, site plan of place of incidence was prepared. Corpse of deceased Satyendra was subjected to autopsy and the report of the same was obtained. Inquest report of the dead body was prepared. Accused appellants were taken into custody. Their identification parade was conducted by the Magistrate before the eye witnesses at the District Jail, Dholpur. Recoveries were made from the accused persons. 8. After completion of investigation, a charge sheet was submitted against the accused appellants in the Court of Additional Judicial Magistrate, 1st Class, No.2, Dholpur. Cognizance was taken for the offences under Sections 395, 396 and 397 IPC. As the case was triable exclusively by the court of Sessions, the same was committed to the Special Court (Dacoity Affected Area), Dholpur on 25th June, 1995. 9. The learned trial court framed the charges against the accused appellants for the offences punishable under Sections 395 and 396 IPC. 10. In the trial against the accused appellants, the statements of following persons were recorded, 1. Upendra Kumar (PW-1) 2. Raghunath (PW-2) 3. Kanta Prasad (PW-3) 4. Bhawani Shankar (PW-4) 11. Thereafter one of the accused appellants had absconded and the trial proceeded against two accused appellants and statements of following persons were recorded, 1. Ramavtar (PW-5) 2. Dr. Kamlesh Kumar Agarwal (PW-6) 3. Mangal Singh (PW-7) 4. Tota Ram (PW-8) 5. Rajendra Singh (PW-9) 6. Lakkhu Ram (PW-10) 7. Ranveer Singh (PW-31) 8. Ganga Singh (PW-12) : 12. Documentary evidence has also been produced. Ramavtar (PW-5) 2. Dr. Kamlesh Kumar Agarwal (PW-6) 3. Mangal Singh (PW-7) 4. Tota Ram (PW-8) 5. Rajendra Singh (PW-9) 6. Lakkhu Ram (PW-10) 7. Ranveer Singh (PW-31) 8. Ganga Singh (PW-12) : 12. Documentary evidence has also been produced. Under the judgment and order dated 24th of April, 1998, as stated in earlier part of this judgment, two of the accused appellants, namely, Rakesh and Komal were convicted and sentenced for the term as stated above. 13. After surrender of accused appellant Murari, the statements of following persons were recorded, 1. Anil Kumar (PW-5) 2. Ram Sahai (PW-8) 3. Ramveer (PW-9) 4. Prakash (PW-10) 5. Anil (PW-11) 6. Rajendra Singh (PW-12) 7. Samir (PW-13) 8. Rajveer (PW-14) 9. Lakkhu Ram (PW-15) 10. Ranveer Singh (PW-16) 11. Dr. Kamlesh Kumar Agarwal (PW-17) 12. Ganga Singh (PW-18) 13. Ramaotar (PW-19) 14. Mangal Singh (PW-20) 14. He was convicted and sentenced under the judgment and order dated 6.10.2001 as stated in the earlier part of this judgment. 15. Learned counsel for the accused appellants contended that the identification parade conducted in this case is wholly unreliable. In his submission sufficient light was not available to identify the miscreants. The tractor was not seized nor mechanically examined to ascertain whether sufficient glaze was there or not. The incident would have been taken place within a span of few minutes and sufficient time was not available to identify the miscreants. 16. It is contended that description of miscreants was not given by the witnesses nor the particular role played by the miscreants. There was sufficient time and opportunity with the prosecution witnesses to see miscreants before the identification parade was held. Reference has been made to the documents - (1) arrest memo and (2) remand sheet. In support of his contentions, the learned counsel for the accused appellants placed reliance on the following decisions of the Apex Court, 1. AIR 1991 SC 1938 , State of A.R v. M.V. Ramana Reddy 2. AIR 1991 SC 1468 , B. Pedda Narsi Reddy v. State of A.P. 3. AIR 1998 SC 1732, Shambhu Dayal v. Subhash Chandra 17. Mangal (PW-7), in the trial of accused Murari, has not supported the prosecution case. He was declared hostile. It has next been contended that there are general infirmities in the story of prosecution. Komal was not named in the F.I.R. Blood Stained clothes were not seized. AIR 1998 SC 1732, Shambhu Dayal v. Subhash Chandra 17. Mangal (PW-7), in the trial of accused Murari, has not supported the prosecution case. He was declared hostile. It has next been contended that there are general infirmities in the story of prosecution. Komal was not named in the F.I.R. Blood Stained clothes were not seized. It is further contended that wrist watch and ring were not exhibited in the court. No identification of these articles was undertaken. It is urged that Ramir and Dr. Janarden were not examined in the first trial. In the second trial Ramir was examined but declared hostile. Time, place and manner in which the occurrence took place, are doubtful. Lastly, it is contended that there is a delay in lodging of F.I.R. 18. Shri S.S. Rathore, learned Public Prosecutor, in contra, submitted that the eye witnesses of this occurrence identified the accused appellants in the indemnification parade conducted by the Judicial Magistrate. Recoveries have also been made. Identification parade was conducted after following all the requirements as laid down under law. Sufficient light was available for identification of these persons. There are no general infirmities in the prosecution story and the recoveries made. Non exhibition of wrist watch and ring or identification thereof is hardly of any substance. Non examination of Ranveer and Dr. Janardan is not fatal to the prosecution case. There was no delay, in the facts of the case, in lodging the F.I.R. There was no necessity to seize the tractor and of its mechanical examination. It is not contended in any manner in the offence. 19. In the F.I.R. all minor details are not to be given. The informant has written in the F.I.R. that he can identify them and thus no giving of the details hardly of any substance. 20. In rejoinder, the learned counsel for the accused appellants repeatedly attacked on the identification parade. Referring to document Ex.D-12 it is contended that for a long period the accused before the identification parade remained in the police custody and there is all the possibility of seeing them by the prosecution witnesses. 21. We have given our thoughtful consideration to the rival contentions advanced by the learned counsel for the accused appellants and the learned Public Prosecutor. 21. We have given our thoughtful consideration to the rival contentions advanced by the learned counsel for the accused appellants and the learned Public Prosecutor. We have closely, carefully and minutely scrutinised the evidence produced by the prosecution both in the trial of Rakesh, Komal and Murari, accused appellants. We have also carefully gone through the judgment and order of the learned trial court. 22. Ex.R1 is the memo of identification proceedings of the accused wherein it has been enumerated that it was conducted on 1st of February, 1996 at District Jail, Dholpur, by Kamta Prasad, Civil Judge (Sr. Div.), Bari, Dholpur. 23. Upendra (PW-1) identified by face all three accused appellants Murari, Komal and Rakesh. 24. Kanta Prasad son of Ram Singh (PW-3) has not identified any accused. 25. Komal son of Shravan Kaccha identified accused Murari and Komal but did not identify accused Rakesh. 26. Raghunath son of Gopi Chand (PW-2) identified all the three accused appellants correctly by face. 27. Post mortem on the body of deceased Satyendra was done by Dr. K.K. Agarwal, Medical Jurist, General Hospital, Dholpur (PW-6). The post mortem report is Ex.P-12. As per the post mortem report, injuries found on the person of the deceased are - "Gun shot wound of enterence 21/2 cm x 2 cm in size oval in shape situated 10 cm above iliac crest 9 cm away from vertebral column on Rt. side i.e. at Rt. Lumber region. Edges inverted. Direction upward and medially towards the Lt. size reaching in the Lt. hypochondrium. Wound of Exist : 4 cm x 3 cm in size, with averted edges and regged situated at Lt. Hypochondrium above and lateral to amblicus 20 cm below Lt. nipple, a portion of small intestine is protruding cut from exit. There is hole in swater, shirt and Baniyan corresponding to entrance of wound and corresponds to wound of exit." (This portion is reproduced from the paper book.) 28. Dr. K.K. Agarwal (PW-6) opined that deceased Satyendra died due to hemorrhage and shock caused by rupture of snail and small stantin due to gun shot injury. 29. Ex.P-20 is the information given under Section 27 of the Evidence Act by the accused appellant Murari regarding weapon `deshi pona'. 30. Ex.P-23 is the information given by the accused appellant Rakesh regarding wrist watch. 31. 29. Ex.P-20 is the information given under Section 27 of the Evidence Act by the accused appellant Murari regarding weapon `deshi pona'. 30. Ex.P-23 is the information given by the accused appellant Rakesh regarding wrist watch. 31. Ex.P-24 is the information given by accused appellant Komal under Section 27 of the Evidence Act regarding ring. 32. Ex.P-25 is the information given under Section 27 of the Evidence Act by accused Rakesh regarding `lathi'. 33. Ex.P-26 is the information given by accused Komal under Section 27 of the Evidence Act regarding `kassi'. 34. Ex.P-5 is the recovery memo in pursuance of the information furnished by the accused appellant Komal of the ring. It has been recovered in the presence of Ramaotar (PW-5) and Anil Kumar. It has been identified by Kanta Prasad son Ram Singh (PW-3). 35. Ex.P-6 is the recovery memo of watch made on the information and at the instance of accused Rakesh in the presence of Ramaotar and Anil Kumar. This has been identified by Kanta Prasad. (PW-3) 36. Ex.P-8 is the recovery memo of `lathi' made in pursuance of the information and at the instance of accused Rakesh. It has been recovered in the presence of Ramaotar and Anil Kumar. 37. Ex.P-9 is the recovery memo of `deshi pona' made on the information and at the instance of accused Murari. It has been made in the presence of Ramaotar and Anil Kumar. 38. Ex.P-10 is the recovery memo of `kassi' recovered on the information and at the instance of accused Komal in the presence of Ramaotar and Anil Kumar. 39. The accused appellants were arrested on 26.1.1996 vide arrest memo Ex.P-19, Ex.P-20 and Ex.P-21. 40. Sweater, Shirt, Baniyan of the deceased were seized. These clothes of the deceased were sent to the F.S.L., Rajasthan, Jaipur for examination. Pistol has also been sent for examination to F.S.L. Reports of the examination are there on the record as Ex.P-30 and Ex.P-31. On these clothes, the human blood stains were found. On examination of this country made pistol, it is found that it had been fired. However, definite time of its last fire could not be ascertained.Contention regarding delay in lodging of F.I.R. 41. Parcha Bayan (Ex.R1) was given by Upendra Sharma to the S.H.O., Police Station, Kolari Camp - Hospital, Dholpur, at 6.30 A.M. on 21st of December, 1995. On examination of this country made pistol, it is found that it had been fired. However, definite time of its last fire could not be ascertained.Contention regarding delay in lodging of F.I.R. 41. Parcha Bayan (Ex.R1) was given by Upendra Sharma to the S.H.O., Police Station, Kolari Camp - Hospital, Dholpur, at 6.30 A.M. on 21st of December, 1995. The incident is of 20th of December, 1995 at 5.00 PM. The incident was at the slope of `parvati' river. Gun shot injury was caused to Satyendra by miscreants and from the place of incidence they had taken the injured to the Hospital in tractor trolley. The F.I.R. was lodged after about twelve hours of the incident by Upendra Sharma (PW-1). Not a single question was put to Upendra (PW-1) regarding this delay in filing of the F.I.R. This was raising the objection of delay without putting the suggestion to the complainant Upendra Sharma (PW-1), is not justified. The report has been submitted to the S.H.O., Police Station, Kolari, Camp at Hospital, Dholpur. The deceased received gun shot injury and naturally the first and foremost step needs to be taken was to take care of the injured and he had rightly been taken to the hospital from the place of incidence. They had to take care of the deceased in the Hospital and it is not unreasonable and unnatural conduct of Upendra not to first go to the Police Station to file the F.I.R. Immediately on coming into contact with the S.H.O., Police Station - Kolari, Camp at Hospital, Dholpur, he submitted this F.I.R. Looking to all these facts, alleged delay in filing of the F.I.R. do not appear to be unreasonable and unexplained and that too to the extent where the prosecution case ought to be thrown out. The delay in lodging the F.I.R. cannot be used as ritualistic formula for doubting the prosecution case and discarding it. The delay has the effect of putting the court on its guard to search if any explanation has been offered and if offered, whether or not it is satisfactory. It is to be stated at the cost of repetition that this was not defence which is clearly borne out from the fact that it was not suggested to the prosecution witnesses and particularly to the PW-1. It is to be stated at the cost of repetition that this was not defence which is clearly borne out from the fact that it was not suggested to the prosecution witnesses and particularly to the PW-1. Defence has not put this to the prosecution witnesses and therefrom it can be accepted that this alleged delay was not taken to be serious or as if for which no explanation would have been there. Only where the prosecution fails to satisfactorily explain and there is a possibility of embezzlement in the prosecution version by causing the delay, the delay would be fatal to the prosecution case but not where it is explained to the satisfaction of the court. The reference here may have to the decision of the Apex Court in the case of Munshi Prasad v. State of Bihar, (2002) 1 SCC 351 . Therein it is held that mere delay in filing FIR cannot be said to be fatal to a criminal prosecution. First Information report cannot but be termed to be the starting point and thus sets in motion a criminal investigation. Strictly, speaking it is of no consequence in the event the FIR has been delayed with plausible explanation. 42. The reference may have to another decision of the Apex Court in the case of Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690 . The Apex Court held, "When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine clauses for FIR lodgment to get delayed. Rural people might be ignorant of the need to inform the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Another possibility facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the person who are supposed to give such information impaired that the police had to reach them on getting some nebulous information abut the incident. This is not an exhaustive catalogue of instances which could cause delay in lodging the FIR. The stale demand made in the criminal courts to treat the FIR vitiated, merely on the ground of delay in its lodgement cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. In the present case, no doubt, there is apparently a long delay of two days to give information to the police but the bereaved widow was not absolutely certain that she lost her husband once and for all until her brother-in-law confirmed to her, after identifying the dead body, that the same was that of her husband. The initial tension and suspense undergone by her would have billowed up into a massive wave of grief. It is only understandable how much time a woman, placed in such a situation, would take to reach some level of placidity tor communicating to t he strangers of what she knew about the last journey of her husband. Therefore, there is no merit in the contention that he inordinate delay in filing the FIR was itself a vitiating factor. 43. In the facts of the case which emerge from the record, we are satisfied that this alleged delay in filing the FIR is not fatal to the prosecution case.Re - the contention `identification parade conducted is wholly unreliable' 44. 43. In the facts of the case which emerge from the record, we are satisfied that this alleged delay in filing the FIR is not fatal to the prosecution case.Re - the contention `identification parade conducted is wholly unreliable' 44. Upendra Sharma (PW-1) stated that he had identified miscreants on the spot in the light of tractor from the document Ex.P-1, the memo of identification parade, we find that Upendra Sharma (PW-1) identified by face all the three accused appellants Murari, Komal and Rakesh. Raghunath (PW-2), in his statement, stated that he has identified the miscreants in the light of tractor. He further stated that at the time of incidence there was not that much of darkness. In the test identification parade conducted by the Magistrate, this witness has identified all the accused appellants correctly by face. Kanta Prasad (PW-3) was declared hostile. From his cross - examination, it comes that the tractor light was on. He stated in the cross - examination, " ;g lgh gS fd va/ksjk gks x;k Fkk vkSj ;fn V~sDVj esa ykbZV ugha gksrh rks cnek'kk fn[kkbZ ugha nsrsA ;g dguk xyr gS fd ,d cnek'k us vkdj Vs~DVj dh ykbZV can djk nh gks vkSj mlds vkSj cnek'k vk, gksA " 45. On careful, close and minute scrutiny of the statements of these witnesses we are satisfied that there sufficient light and visibility was available to these witnesses to identify the miscreants. Not only this, this incident took place at about 5.00 to 5.30 PM and it has come in the statement of one of the prosecution witnesses that there was not that much of darkness. In the month of December at 5.00 to 5.30 PM there may not be that much of darkness that a person cannot identify the person. But. here, in addition to the natural light whatever available, the tractor light was on and thus there was sufficient light available so as to make it easy for these witnesses to identify the miscreants. The submission of the learned counsel for the accused appellants that sufficient light was not available to these witnesses to provide that much of visibility to identify the miscreants is devoid of any substance and merits. 46. The tractor and trolley were not seized by the police but it is hardly of any help to the accused appellants. The submission of the learned counsel for the accused appellants that sufficient light was not available to these witnesses to provide that much of visibility to identify the miscreants is devoid of any substance and merits. 46. The tractor and trolley were not seized by the police but it is hardly of any help to the accused appellants. The articles - tractor and trolley, were not involved in the offence thus not necessarily to be seized for the trial of this case. Learned counsel for the accused appellant has insisted upon the seizure of tractor and for its mechanical examination to ascertain whether it was having light or not. That much emphasis on seizure of these articles which are not connected with the offence, is not reasonable and logical. More so when overwhelming evidence on record i.e. of Upendra (PW-1) and Raghunath (PW-2) is there that lights of tractor were on. We do not find any ground or justification not to believe this part of statements of these witnesses. Even from the statement of Kanta Prasad (PW-3), who has been declared hostile, it is clear that the lights of tractor were on. The ground that the incident took place within a span of few minutes sufficient time was not available for these witnesses to identify the miscreants, is also untenable. 47. Another argument advance that there was sufficient time and opportunity with the prosecution witnesses to see to the miscreants before identification parade was held, is also devoid of any merit and substance. Accused appellants Rakesh, Murari and Komal were arrested on 26th of January, 1996 vide Ex.P-19, Ex.P-20 and Ex.P-21, respectively. From the document Ex.D - 12 we find that the accused were arrested `baaparda' as their identification parade was to be conducted by the Magistrate. As the recoveries were also to be affected, a prayer was made for their police/judicial remand and by order of the Magistrate dated 21st of January, 1996 (Ex.D - 12) that had been granted. We find that the accused appellants were present `baaparda' before the Magistrate. On 21st of January, 1996 site plan of the place of incidence (Ex.D-1) was prepared at the instance of accused Murari. Mangal Singh (PW-7), the then S.H.O., Police Station Kolari, in his examination-in-chief, stated that from the date of their arrest to the date of their identification parade they were kept `baaparda'. On 21st of January, 1996 site plan of the place of incidence (Ex.D-1) was prepared at the instance of accused Murari. Mangal Singh (PW-7), the then S.H.O., Police Station Kolari, in his examination-in-chief, stated that from the date of their arrest to the date of their identification parade they were kept `baaparda'. In the cross - examination he stated that he produced the accused appellants for remand before the Magistrate on 26th of January, 1996 and in the document Ex.D - 12 it is there that they were kept `baaparda'. Before identification parade, he stated, the three accused were taken by him to the place of incidence of preparation of site plan at their instance. This has been done by him three or four days before the date of identification parade conducted. He prepared the site plan Ex.D - 1 at the instance of accused Murari on 28th of January, 1998. Ex.D - 7 is the site plan of the place of occurrence prepared at the instance of accused Rakesh on 28th of January, 1996. Ex.D - 8 is the site plan of the place of occurrence prepared at the instance of Komal. On being put to him, he denied that he kept the accused appellants at the place of occurrence for three hours and therefrom the peoples of village Sastanagar were passing through. He made a categorical statement that accused were kept `baaparda'. On being put to him with reference to the exhibited documents Ex.D - 1, Ex.D - 7 and Ex.D - 8, he stated that he did not put the note thereon that the accused were kept `baaparda' but this note was put in the diary. He has not considered it necessary to put this note on the documents Ex.D - 1, Ex.D - 7 and Ex.D - 8. He denied this suggestion put to him that he did not keep the accused `baaparda at the time when the peoples were passing therefrom of villages Sastanagar and Mania. He also denied the suggestion put to him that he kept the accused for three days without `baaparda'. He also denied the suggestion made to him that he brought the accused from the site of occurrence without `baaparda'. He also denied the suggestion that he summoned the complainant and members of his family during the period when he was there at the site for preparation of the site plan. He also denied the suggestion made to him that he brought the accused from the site of occurrence without `baaparda'. He also denied the suggestion that he summoned the complainant and members of his family during the period when he was there at the site for preparation of the site plan. 48. Having considered the matter from any angle and aspect we do not find anything wrong or suspicious or a point which goes in favour of the defence that non - mentioning of keeping the accused `baaparda' at the time of preparation of site plan in the documents Ex.D - 1, Ex,D - 7 and Ex.D - 8 more so when the investigating officer has made a categorical statement that the accused were kept `baaparda' and this has been recorded by him in the diary. 49. Upendra Sharma (PW-1), Raghunath (PW-2) and Kanta Prasad (PW-3) are the eye witnesses of this incidence. Upendra Sharma (PW-1), who is the brother of deceased Satyendra, has given out the time of incident 5.45 PM. He stated that Raghunath, Kanta Prasad and Komal were with him. He stated that when the tractor was crossing the slope of the river, the miscreants stopped them which were seven in number and lashed with gun, `lathi' and `Farsa He stated that they robbed him two thousand rupees and one wrist watch. One miscreants took his ring also. One miscreant fired at Satyendra. He identified this miscreant in the tractor light. In the court he identified the miscreant `Murari' who fired at Satyendra. Rakesh was identified as a miscreants who took search and caught hold of Satyendra. Pointing out miscreant Komal he stated that he made air fire while running from the place of incidence. 50. Raghunath (PW-2) stated that he saw the miscreants in the tractor light at the time of incident. There was not that much of darkness. 51. Kanta Prasad (PW-3) though declared hostile, on his cross - examination by the Public Prosecutor, admitted that on that day he with Satyendra, Upendra and Komal were going in tractor from Mania to Village Shastnagar at 5.30 PM. Satyendra was driving the tractor. Seven miscreants were seen in the light, who stopped them and got them down from the tractor. In the cross - examination by the counsel for the accused he admitted that the tractor lights were on. Satyendra was driving the tractor. Seven miscreants were seen in the light, who stopped them and got them down from the tractor. In the cross - examination by the counsel for the accused he admitted that the tractor lights were on. On being a suggestion was put to him he denied that one of the miscreants has put off lights. He further admitted in the cross - examination that he had given out the description of the miscreants during investigation to the investigating officer. This witness fully supports the prosecution case that this incident was taken place on that date. Though, subsequently, he look a hostile attitude and he has not identified the accused in the identification parade but it is hardly of any substance or merit or tilt against the prosecution case. Similarly, his statement that miscreants who took his search are not present in the court, is also of no substance and importance. The reference here may have to the decision of the Apex Court in the case of Bhoora Singh v. State of Rajasthan, 2001) SCC (Cr.) 323 wherein there Lordship of the Supreme Court held that it is a misconceived notion that merely because a witness is declared hostile, his entire evidence should be excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness. In the case of Bhola Ram Kushah v. State of M.P., AIR 2001 SC 201 the Apex Court observed that it is enough to pursue the statements of all prosecution witnesses and ascertain whether their testimony inspire confidence for holding the accused guilty. Thus mere a witness turns hostile, may not be a general ground for acquittal. In a criminal trial where the prosecution witness is cross-examined and contradicted on leave of the court by the part calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross - examination and contradiction the witness stands described or can still be believed in regard to any part of his testimony. In the appropriate case the court can rely upon the part of testimony of such witness if that part of deposition is found to be credit worthy. In the appropriate case the court can rely upon the part of testimony of such witness if that part of deposition is found to be credit worthy. 52. Upendra Sharma (PW-1), in the cross - examination has explained that in Ex.P-2 he has not mentioned about the ring as at that time he was not knowing that it has also been robbed. He stated that in Ex.P-2 though he has not given the description of the miscreants but in the police statement he has given the same. He has given out that when they were climbing over upslop of river, the sun was set and there was slight darkness. In the cross - examination, a question was put to him in respect of Ex.P-2 but not in respect of Ex.D - 9 where in he has given all the details. In the cross - examination he has stated that he has given the details of the incident in the police statement but he was not confronted with his police statement. In the cross - examination he has denied this suggestion put to him that he along with Komal, Raghunath and Kanta Prasad went to the police station on 26th of January, 1996 to see the faces of miscreants, he denied the suggestion that he saw these miscreants at the police station and that they were shown to the witnesses. He has stated that he does not know from which date to which date the miscreants were in police custody and from which to which date they were on remand. He denied the suggestion put to him that he saw the miscreants in the police station or Mangal Singh (PW-7) helped him to see those miscreants. 53. Raghunath (PW-2), in his cross - examination denied the suggestion that Upendra Sharma (PW-1) took him to the police station and shown the accused. He also denied the suggestion that he saw these accused persons at police station. 54. From the statement of Upendra (PW-1), Raghunath (PW-2) and Mangal Singh (PW-7) and the documentary evidence Ex.D - 12 we are satisfied that during the period the accused remained on police remand they were kept `baaparda'. We are further satisfied that the accused were not seen nor shown to them by the police during this period. 55. Upendra Sharma (PW-1) has identified all the three accused persons in the test identification parade. We are further satisfied that the accused were not seen nor shown to them by the police during this period. 55. Upendra Sharma (PW-1) has identified all the three accused persons in the test identification parade. Raghunath (PW-2) also identified all the three accused persons. Kanta Prasad (PW-3) has not identified any of the accused. Komal was not produced in the witness box. Upendra Sharma (PW-1), in his cross - examination, stated that he went to jail for identification of the accused. He entered in jail when his name was called. The information for this date of identification parade was given a day earlier by the police. He alone went to the jail on scooter. He denied the suggestion that on the date of test identification parade at 12.00 Hrs. He went with Jai Narain, Kanta Prasad, Komal, Raghunath and Mangal Singh to jail. He also denied that it is recorded in the jail record. He denied this suggestion that he, Raghunath, Komal, Jai Narain and Mangal Singh on that day went to jail in the jeep of Mangal Singh. When he entered in the jail, only Magistrate, the accused and some other prisoners were there. 56. In the cross-examination, Raghunath (PW-2) stated that he has answered the questions which were put to him by the Magistrate at the time of identification parade of the accused. He stated that for this identification of the accused he went alone to jail. Though, outside some other persons were sitting who told to him that they have come for this identification proceedings. The date of identification was informed to him by the police. He did not see the constable of the police station Kolari. He reached in the noon at jail. When he 1 entered in jail, Kanta Prasad, Komal and Upendra Sharma were not present. He stayed there for about half an hour. During that period also Kanta Prasad, Komal. Upendra were not there. He saws these three persons when he was returning from the jail on the way. He went to jail on rickshaw. He also denied J the suggestion that at jail the signatures of all the persons were obtained together. He also denied the suggestion that at 11.45 he came out of the gate of jail with other persons and Mangal Singh remained inside the jail. He went to jail on rickshaw. He also denied J the suggestion that at jail the signatures of all the persons were obtained together. He also denied the suggestion that at 11.45 he came out of the gate of jail with other persons and Mangal Singh remained inside the jail. He also denied the fact that at 1.15 Mangal Singh came out of jail. 57. Bhawani Shankar (PW-4), Additional Chief Judicial Magistrate, Bari, 1 stated that he conducted the identification parade. He stated that total 21 prisoners were mixed up with the accused. He proved document Ex.P-1, the result sheet of the test identification parade. He stated that a list of those prisoners who were mixed up with the accused is Ex.D - 11. He saw all the prisoners who were mixed up with the accused and he was satisfied that their i appearance resembled with the accused. He stated that he did not call all the witness together. After interval of identification by one witness another was called. He denied that during the test identification parade Mangal Singh, S.H.O. was present. He also denied this suggestion that all the four witnesses came out of jail at 12.45 Hrs. He also denied that he and Mangal Singh s remained at Jail upto 1.15 PM. We do not find anything wrong in the statement of the Magistrate on the basis of which it can be taken that the test identification parade conducted in the manner, prejudicial to the accused. Merely on the point that list of prisoners who were mixed up with the accused, prepared by the jail officer, do not discredit the statement of the Magistrate. He - has recorded his own satisfaction after seeking those prisoners mixed up with the accused regarding their resemblance with the accused. 58. We have also gone through the statement of Mangal Singh (PW-7). 59. Now we consider the defence produced by the accused appellants on this point. In ocular evidence statement of DW-1 Subhash Chand Yadav : was recorded. In documentary evidence, Ex.D - 13, jail register was produced. 60. It is to be noted that the defence has not produced any other documentary evidence except Ex.D - 13 As per Subhash Chand Yadav (DW-1) the entry of the visitors to the jail are recorded. These entries are made both in visitors book and jail register. The time is also recorded. 60. It is to be noted that the defence has not produced any other documentary evidence except Ex.D - 13 As per Subhash Chand Yadav (DW-1) the entry of the visitors to the jail are recorded. These entries are made both in visitors book and jail register. The time is also recorded. He admitted that there : are two gates in jail. The moment the entry is there from first gate the same is entered in the register. He admitted that from this entry made in the register (Ex.D - 13), it is difficult to find out who are the persons entered from second gate. Ex.D - 13 is the register entry from main gate. He has shown his inability to give detail of the persons who came in jail on 1st of February, 1996. He admitted that in this register except the entry copy of which is Ex.D - 13, no reasons of `entry' and `exit' of a person in jail are recorded. He admitted the suggestion that there is a possibility that Ex.R 13 would have been prepared for some purpose. On being put further he admitted that by seeing this entry he is not in a position to say who are the persons entered in the second gate for identification parade and other who remain present in the office or chamber. He stated that ordinarily police wala is not permitted to enter in the jail. Where he entered from the main gate he had to remain sit in the office or the chamber of the Superintendent. From the statement of this witness and the document Ex.D - 13 we are satisfied that leaving apart the possibility that it would have been prepared for some purpose, it is not established that all the witnesses gone inside jail for Identification parade together. 61. Now before proceeding further we consider it to appropriate to refer here the decisions on which reliance has been placed by the learned counsel for the accused appellant. 62. In the case of State of A.P. v. M.V. Ramana Reddy, AIR 1991 SC 1938 , their Lordships of the Hon'ble Supreme Court held that where there is no valid explanation for the delay in holding the identification parade and the evidence of the prosecution regarding identity of accused is not absolutely reliable, the accused are entitled to benefit of doubt. There cannot be any quarrel with the proposition of this law. 63. In the case of B. Peeda Narsi Reddy v. State of A.P., AIR 1991 SC 1468 , their Lordships of the Hon'ble Supreme Court held that where there is no cogent evidence that witnesses had clear vision of action of accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify accused even after lapse of long time, the accused are entitled to acquittal. There cannot be any quarrel on this proposition but each case is to be D/d. its own facts. 64. In the case of Shambhu Dayal v. Subhash Chandra, AIR 1998 SC 1733 , their Lordships of the Hon'ble Supreme Court held the discovery of clothes and golden ring at the instance of alleged dacoit doubtful as it was not probable that while committing dacoity they would have taken away clothes also and burried them in the courtyard and the accused were held to be entitled to acquittal. 65. Dr. Kamlesh Kumar Agarwal (PW-6) who has conducted the post mortem on the body of the deceased Satyendra on 21st of December, 1995 at Government Hospital, Dholpur, on internal examination of the body found that small intestines and spleen were raptured. These were gun shot injuries caused during twenty four hours. 66. Accused Murari on 1st of February, 1996 voluntarily gave the information under Section 27 of the Evidence Act to the investigation officer Mangal Singh that he can get recovered `desi pocha' which he had hidden in the bushes near the 'parvati' river. This hidden in the bushed near the `parvati' river. This information is Ex.P-22. In pursuance of the voluntary information and at the instance of the accused Komal on 2nd of February, 1996 `desi pocha' was recovered in the presence of witnesses Ramavtar and Anil Kumar. The recovery memo is Ex.P-9 prepared by the investigating officer Mangal Singh (PW-7). Ramavtar, motbir of this recovery, is produced as PW-5. He stated that at the bank of river near the boring in the bushes accused Murari taken out `desi pocha' and gave to investigating officer. The recovery memo is Ex.P-9 prepared by the investigating officer Mangal Singh (PW-7). Ramavtar, motbir of this recovery, is produced as PW-5. He stated that at the bank of river near the boring in the bushes accused Murari taken out `desi pocha' and gave to investigating officer. Seizure memo of `desi pocha' is Ex.P-9 and his signatures are there at places A to B. He also identified the signatures of Anil Kumar, the motbir of this recovery, at places C to D. Places E to F he stated are the signatures of accused Murari. He stated that he can identify this `desi pocha' and he has identified this article and stated that it was sealed in his presence. Mangal Singh (PW-7) stated that accused Murari has given the information Ex.P-22 to him for this recovery of `desi pocha' and in pursuance and at the instance of the accused that recovery has been affected. He proved Ex.P-9 and his signatures thereon at G to H and that of accused Murari at E to F. He further stated that `desi pocha' was sealed at the site. He also proved the seals. This weapon was sent to the F.S.L. Rajasthan, Jaipur of this weapon is Ex.P-31. It is reported that on examination of the resides indicates that submitted country made pistol 1W/1 from pocket `C' has been fired. However, the definite time of its fire could not be ascertained. This report is of 4th of February, 1997 i.e. after one year of the recovery. 67. Similar recoveries were made of `lathi' and `farsa' at the instance of accused Rakesh and Komal. 68. On 5th of February, 1996 accused Rakesh has given voluntary information (Ex.P - 23) for recovery of a wrist watch from his house at Dharampura. In pursuance of this information and at the instance of accused Rakesh, this recovery has been affected on 5th of February, 1996 in the presence of Ramavtar, Anil Kumar and Kanta Prasad. It is Ex.P-6. 69. Kanta Prasad (PW-3) has identified this watch to be of him. 70. On 5th of February, 1996 accused Komai has given voluntary information to Mangal Singh (PW-7) for recovery of ring. As per this information (Ex.P - 24) and at the instance of accused Komal, this ring has been recovered in the presence of Ramavtar, Anil Kumar and Kanta Prasad. Kanta Prasad has identified this ring to be of him. 70. On 5th of February, 1996 accused Komai has given voluntary information to Mangal Singh (PW-7) for recovery of ring. As per this information (Ex.P - 24) and at the instance of accused Komal, this ring has been recovered in the presence of Ramavtar, Anil Kumar and Kanta Prasad. Kanta Prasad has identified this ring to be of him. This recovery memo is Ex.P-5. In the cross - examination Mangal Singh has given out the explanation that the constables are made the witnesses of the recoveries as peoples from village Dharampura were not willing to become `motbirs'. He stated that Kanta Prasad was met to him in the way. He identified watch and ring at the site. He denied the suggestion that the recoveries of these two articles were forged. He explained Ramavtar and Anil Kumar were taken by him as in the forest the witnesses are not available. Ramavtar (PW-5) has proved these recoveries of ring and watch. He has stated that Kanta Prasad was with them and he has identified both these articles. In cross-examination again he repeated that on the spot Kanta Prasad identified this ring. 71. Kanta Prasad (PW-5) was declared hostile and he has denied his signatures on Ex.P-5 and Ex.P-6. 72. His signatures on the documents Ex.P-5 and Ex.P-6 are proved by Ramavtar (PW-5) and Mangal Singh PW-7. Otherwise also we do not find any absurdity or illegality or unnaturality in the approach of the trial court to go and compare the signatures of this person on Ex.P-5 and Ex.P-6 with that of his on the court statements. This course can be adopted in a given case by the court for its own satisfaction. As said earlier, PW-5 and PW-7 have proved the signatures of Kanta Prasad on Ex.P-5 and Ex.P-6 but as this witness has been declared hostile, by a magnifier glass we have also examined minutely the signatures of this witness on these documents and his court statements and endorse the finding of the court below. Mangal Singh (PW-7), in his cross - examination, at the end, stated that during the investigation this fact has come that gun shot fire was made by Kaptan. The learned trial court has gone through the case diary and recorded a finding of fact that this statement of Mangal Singh is based only on interrogation of the accused which cannot be read in the evidence. The learned trial court has gone through the case diary and recorded a finding of fact that this statement of Mangal Singh is based only on interrogation of the accused which cannot be read in the evidence. Nor this interrogation has any evidentiary value. Mangal Singh (PW-7) on the investigation has noticed that in this crime Murari, Kaptan, Komal, Rakesh, Ram Niwas etc. are involved. It is not in dispute that against accused Rameshwar and Ram Niwas 'titamba' charge - sheet was filed. Other accused Kaptan and Rajveer are absconding. 73. It is not necessary that all these person are to be examined by the prosecution. It is not the number of witnesses but the quality 'of evidence is important. We fail to see how non - examination of Rajveer and Dr. Janardan in the case of two accused appellants is fatal to the prosecution case. Similarly in the trial of the the third accused appellant, Rajveer was declared hostile is hardly of any help to the accused appellants. Non mentioning of the name of Komal in the F.I.R. is not an infirmity of such gravity where the whole of the prosecution cause is to be disbelieved. Same is the case for non recovery of the blood stained clothes. The wrist watch and the ring have been identified at the spot of the recovery. 74. From the evidence of PW-1, PW-2 and PW-3 are satisfied that when they were crossing through the slope of `parvati' river seven persons with gun, lathi and farsa came, stopped their tractor and snatched the valuable articles from them. When Satyendra resisted them, one out of them killed him by gun shot fire. The prosecution has established beyond reasonable doubt against the accused the commission of dacoity by them, that one of the accused committed murder of Satyendra and that the murder was committed during this dacoity. 75. As a result of the aforesaid discussion, these appeals fail and the same are dismissed.Appeals dismissed. *******